IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.302 of 2007 Against the judgment and order dated 17.1.2007 passed by, learned Additional Sessions Judge, Fast Track Court No.IV, Buxar, in Sessions Trial No. 187 of 2004. Abhiman Pandey .... .... Appellant Versus The State of Bihar .... .... Respondent ------------ For the Appellant : Mr. Ram Shankar Prasad, Advocate For the State : Mr. Ajay Mishra, A.P.P. ----------------- P R E S E N T THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA. Dharnidhar Jha, J. The sole appellant Abhiman Pandey was charged of committing offence under Section 302 of the Indian Penal Code along with the deceased-convict Bihari Pandey, by the Additional Sessions Judge, Fast Track Court No. 4, Buxar, in Sessions Trial No. 187 of 2004 but while pronouncing the judgment dated 17.01.2007, the court held the appellant to have committed the offence punishable under Section 304 Part-II/34 of the Indian Penal Code. The appellant was directed to suffer rigorous imprisonment for ten years as such. 2. Exhibit-3 the written report of (P.W.4) Jogendra Pandey, is the basis of instituting F.I.R. (Exhibit-4) of the case on which the investigation was undertaken by P.W.13, S.I. Tantra Nath Pandey. It was stated in the written report by informant (P.W.4) that at about 4:00 P.M. on 22.12.2003, the appellant along with Bihari Pandey came at the house of the informant and started 2 abusing his father, deceased Rukhi Pandey, who objected not to abuse, upon which the appellant Abhiman Pandey dealt lathi blows to the deceased, as a result of which his head was lacerated and an injury was also caused to his feet. The deceased-convict Bihari Pandey also assaulted the deceased with fists and slaps. The informant alleged that the quarrel had broken out on account of some dispute regarding partition of land. 3. P.W.13 after having received the written report, drew up the F.I.R. for the offence under Sections 447, 323, 307, 504/34 of the Indian Penal Code and recorded the further statement of the informant and proceeded to inspect the place of occurrence. It was situated at village Basmanpur and it was the joint house of the informant and the accused persons. He recorded the statement of other witnesses and after having got an information that deceased Rukhi Pandey had succumbed to his injury, converted the case to one under Section 302 of the Indian Penal Code. He also obtained injury certificate and the post-mortem report and finding the case true, sent up the accused persons for trial. 4. The motive for the occurrence was quarrels between the parties for partition of land. The defence of the appellants was also the same that they had been implicated on account of land dispute. 5. During the course of trial, 14 witnesses were examined. Except P.W.1, Kailash Pandey, and P.W. 2 Taramuni Devi, the 3 other witnesses including the informant were declared hostile. However, P.W.4, the informant of the case, appears declared hostile because he was not making a very clear and categorical statement that he had seen certain persons assaulting the deceased. Still, whatever he stated was that on 22.2.2003 at about 4:00 P.M. the deceased was probably, hit and injured on the head and was taken to Buxar and Banaras where he died on 1.2.2003. Thus, P.W.4 did not state as to who had assaulted the deceased causing the injury to him. Other witnesses like P.Ws. 3, 5, 6, 8 and 9 have simply given one line statement that they did not see the occurrence, as a result of which each of them was declared hostile. Even the wife of the informant P.W.10, who was the daughter-in-law of the deceased, was not supporting the prosecution case. As a result, she was also declared hostile. 6. So far as the evidence of P.W.1 Kailash Pandey and P.W.2 Tara Muni Devi is concerned, they have supported the story of the prosecution in its entirety by stating that on 22.12.2003 at 4:00 P.M. when the deceased was sitting at his Darwaja, the appellant Abhiman Pandey and another accused Bihari Pandey came there and started abusing the deceased Rukhi Pandey. P.W.1 further said that he was at the roof of his house and on hearing hulla, he came down through stairs and went near the deceased who was asking the present appellant and accused Bihari Pandey as to why they had fixed the Khunta (peg) at the disputed land which belonged to him 4 and that led to exchange of hot words and giving blows by danda on the deceased causing injury on his head and feet. P.W.1 is the uncle of the appellant and the brother of the deceased also, besides being the brother of the deceased- convict Bihari Pandey, and thus, he appears holding equal interest with the accused person and the deceased. Moreover, after going through the evidence of P.W.1, I do not find any material in the entire deposition of this witness which could discredit him. He appears a wholly trustworthy witness as his evidence in examination-in-chief appears not eroded during his cross-examination. Rather there was some prominent and believable account of the prosecution story recorded during his cross-examination. 7. So far as the evidence of P.W.2 is concerned, she was the wife of the deceased and she has claimed that she was standing at her house and when she heard the exchange of hot words between the deceased and the two accused person. She also came down to the place where they were quarreling and when the accused persons started abusing him, the deceased objected to it, upon which accused Bihari Pandey assaulted the deceased with fists and slaps and this appellant Abhiman Pandey dealt one lathi blow on his head and the other on his foot, as a result of which he fell down. He was shifted to Buxar hospital from where he was referred to Banaras and lastly, he died 5 days after the incident. In cross-examination of P.W.2, there is nothing to indicate that she had any motive to falsely 5 implicate the accused rather her cross-examination further confirms that she was a highly reliable witness who had witnessed the occurrence and had reproduced the account of it as was seen by her. The perfection of the evidence of P.W.2 regarding being competent witness is further found from this fact that P.W.2 in para-4 of her deposition answered a question put to her as to whether the deceased was also assaulted by fists and slaps and she replied that she did not see whether the deceased was assaulted by fists and slaps as well and she further said that Ganji, Gamchha and Dhoti of the deceased were blood stained. It is true that the doctor who held post-mortem examination has not been produced for examination but the post-mortem examination report in its original is available on the Lower Court Records and the doctor has written as to what articles were found by him on the dead body of the deceased. The clothes were also Baniyan and Dhoti and one Janeu which were found on the dead body. Thus, the evidence of P.W.2 makes her claim of being present on the scene of occurrence acceptable to this court also. She appears to have seen the occurrence. 8. It is true that the informant did not name any of the two persons, and also he appears being declared hostile by the prosecution but his evidence was also supporting the prosecution case because he was stating that the deceased was assaulted and injured and he was treated and, lastly, he died during course of his treatment. It could be only on account 6 of not disclosing identity of the assailants of the deceased by naming them, that P.W. 4 was declared hostile, otherwise, he was also supporting the occurrence almost in its entirety. However, the identity of the assailants or the accused persons is established by the most competent witnesses P.Ws.1 and 2, and, above all, by the evidence of P.W.1 who was holding equal interest in both the parties. He did not have any reason to support any of the parties, as regards the commission of the offence. The offence of the appellant is proved beyond doubt and it is established that he dealt a blow with lathi. 9. It is true that the doctor holding post mortem examination was not examined, but on roving through the lower court records, what I could find is that the court below and Public Prosecutor both made all efforts for getting the Dr. V. S. Gool in the witness box obtaining his opinion about the case and reason of death of deceased Rukhi Pandey. There is a whole bunch of correspondence on record to indicate that in spite of hectic efforts made in that behalf and in spite of direction to the said doctor to attend the trial court for his evidence, he did not turn up. However, the doctor who had initially attended on the deceased when he was brought to Sadar Hospital, Buxar has testified that the patient was brought with head injury over scalp and it was in the form of lacerated wound measuring 3”X1”X bone deep. Another abrasion was located on the right leg which was measuring 1 c.m.X1 c.m. P.W. 11 had stated that the injured Rukhi Pandey was given 7 first aid and he was referred to higher centre for C T scan of brain and other investigations for better treatment. It appears that his report Ext.2 was photo copy of the original. It was admissible under the provisions of Section 63 of the Evidence Act, 1872 which deals with admitting of the same as secondary evidence on the ground that copy was made from the original by mechanical processes, which in itself, ensures the accuracy of the copy. Exhibit-2 is the photo coy of the original report which was prepared by P.W. 11 and he has stated that the contents are same and similar and the copy is exactly the same which was prepared by him. In that view of the matter the document was properly admissible in evidence which supports the prosecution case that on account of being given lathi blow by appellant Abhiman Pandey on his head, the deceased had become unconscious and he was referred to other higher center for treatment. It is not in dispute that he was taken to Banaras where as per P.W.2, he died after five days of the occurrence. Thus, the injury which was caused to his head appears the sole reason for his death and those are considerations which establish participation of the appellant in the occurrence in the manner in which he is said to have assaulted the deceased which appears fully corroborated not only by the oral evidence of P.Ws.1 and 2 but, also, by opinion of P.W.11. It is true that post-mortem examination report and the evidence of the doctor who had held post- mortem examination are some times necessary, but purpose of 8 Patna High Court, dated19th August, 2011 N.A.F.R./Ravi. holding post-mortem examination is only to obtain the opinion of the doctor so as to being satisfied about the manner of occurrence as also the evidence of other witnesses as regards its manner. When the evidence is available on record and when P.W.11 initially, attending on the deceased, says that the injury was caused within 12 hours by hard blunt substance, there does not remain any reason for not accepting oral evidence of P.Ws. 1 and 2 who were supporting the prosecution case before court below and have also been found highly trustworthy by me. 10. Shri J. N. Sinha, learned counsel for the appellant while arguing the appeal was submitting that this court may convert the conviction of the appellant from 304 part-1 325 to Section 323 of the Indian Penal Code which are offences minor to that under Section 304 I.P.C. but after considering the evidence and the participation of the appellant and after having found that the blow given by the appellant was the only reason due to which the deceased succumbed to that injury, I do not find it a fit case for altering the conviction so as to reducing the sentence. 11. In the result, the appeal fails and the same is dismissed. (Dharnidhar Jha, J.)