CRIMINAL APPEAL No.367 OF 1993 ---- Against the judgment of conviction and order of sentence dated 18th October,1993 passed by Shri Birendra Kumar Sinha, 2nd Additional Sessions Judge,Muzaffarpur in Sessions Trial No. 307 of 1992. --- 1.Hirday Roy 2.Ram Prasad Roy --- Appellants Versus The State of Bihar --- Respondent --- For the appellants: Mrs.Nutan Sahay(Amicus Curiae) For the State: Mr. Ali Muzaffar, Addl.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ---- S.K.Sharma,J. This appeal has arisen out of judgment of conviction and order of sentence dated 18.10.1993 passed by Shri Birendra Kumar Sinha, 2nd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 307 of 1992 by which he has convicted both the appellants under Section 304 Part II of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years each. It is pertinent to mention here that the charge was framed under Section 302 of the Indian Penal Code. 2. Chanbatiya Devi (P.W.5) has given her fardbeyan that elder brother of her husband namely, her Bhainsoor Hirday Roy and his son Ram Prasad Roy used to beat her husband Ramadhar Roy whenever he made demand of his share in the property. The assault has led to various panchaiti. The last panchaiti was organized on 10th day prior to the occurrence. In the said panchaiti, the accused persons accepted to allot share in the landed property to Ramadhar Roy but as soon as they returned to their house, they 2 disobeyed the mandate of the panchaiti and instead they assaulted the informant’s husband. The informant any how managed to get one room in the house. 3. In the evening of 29.4.1992 at about 7.00 P.M. when informant’s husband Ramadhar Roy was going to ease himself, his nephew Ram Prasad Roy came and told that his father Hirday Roy wanted him at Bathan. Soon thereafter, the informant Chanbatiya Devi heard that her husband was crying for safety, then she rushed to Bathan and there she saw the appellants assaulting him and when he fell down on the ground, they were climbing on his chest and were pressing it and assault was being made by fists and kicks. The informant raised alarm but of no avail. Some villagers came but they did not intervene in the matter. The informant brought her husband to her house with the help of her mother-in-law and started massaging his legs and hands. As there was no vehicle available in the night, the injured was not being taken to any doctor for medical treatment and that night became fatal for Ramadhar Roy. The matter was reported to police on the next day i.e.30.4.1992 at Noon and her fardbeyan was recorded on that day which is Ext.3. She put her L.T.I. on the fardbeyan which was witnessed by Upendra Prasad Yadav and Darogi Rai. Formal F.I.R. (Ext.4) was drawn up on the basis of Ext.3. Inquest report (Ext.2) was prepared and the dead body was sent to S.K.Medical College, Muzaffarpur for autopsy. Post mortem was done by P.W.7 and post mortem report has been marked as Ext.1. The matter was investigated into and thereafter chargesheet was submitted against the above two accused persons. In due course, the case was committed to the court of Sessions. There charge under Section 302 of the Indian Penal Code was framed. The 3 accused persons pleaded innocence and claimed to be tried. 4. The defence of the accused persons were of false implication. Their further defence was that the deceased was a man of criminal activity and he used to commit theft and on the date of occurrence he tried to commit some theft and in that process he was assaulted and later on died. 5. The trial court after scrutinizing the evidences of the witnesses, came to the opinion that charge under Section 302 of the Indian Penal Code is not proved because the prosecution has not been able to prove that the accused persons were having intention or knowledge to cause death. So the appellants were convicted under Section 304 Part II of the Indian Penal Code and not under Section 302 of the Indian Penal Code. Thereafter both the convicts preferred this appeal challenging the order of conviction and sentence. 6. The prosecution has examined altogether nine witnesses in support of its case. They are: P.W.1 Upendra Prasad Yadav, P.W.2 Rajeshwari Devi, P.W.3 Prem Nandan Roy, P.W.4 Arjun Roy, P.W.5 informant Chanbatiya Devi, P.W.6 Shyam Nandan Roy, P.W.7 Dr. Binod Kumar Mehta, P.W.8 Md.Aiyub and P.w.9 Yogendra Paswan. The defence has also examined one witness who is D.W.1 Bhutiya Devi. 7. P.W.9 is the Investigating Officer whereas P.W.7 is the doctor who conducted autopsy over the dead body of the deceased. P.W.8 is a formal witness who has only proved inquest report. P.W.6 is the only witness who has been declared hostile by the prosecution but has been cross- examined by the defence. P.W.3 has been tendered by the prosecution. The material witnesses are P.Ws. 1,2,4 and 5. 4 8. According to the doctor, the death occurred on account of two ante mortem injuries; one was swelling 2”x ½” on the right lower part ribs in the chest and another was bruise ½” x ½” on the back of right elbow. On dissection, the doctor has found huge quantity of blood in chest cavity with fracture of 9th to 11th ribs on the right side. The reason of death was shock and haemorrhage on account of above mentioned ante mortem injury caused by hard and blunt substance; may be by kicks and fists. The death was within 12 to 36 hours prior to post mortem. The post mortem was conducted at 10.50 A.M. on 1.5.1992. 9. The medical evidence regarding time of death finds corroboration from the narrations of the fardbeyan of the informant. The informant has given the time of assault and death. According to the post mortem report, the death was within 12 to 36 hours. 10. The most important witness of the case is the informant P.W.5 Chanbatiya Devi as she has seen the assault of her husband at the time of occurrence. After hearing the sound of crying of her husband, she rushed to the place of occurrence and there she found that her husband was being mercilessly beaten by the accused persons. At that time, the accused persons were sitting upon his chest. The post mortem report reveals that some ribs of the deceased were found broken and the case is that the appellants were sitting on the chest of the deceased and it was being pressed by them. So the manner of causing death to that extent stands corroborated. 11. The evidence of the informant P.W.5 who is eye witness has been supported by P.Ws.1, 2 and 4 who have stated that they have seen the occurrence. Though it has 5 been argued that as P.Ws. 1,2 and 4 are not the eye witnesses of the fardbeyan, they have not seen the occurrence and they have been brought later on to make serious of the offence. 12. I perused the evidences of P.Ws. 1,2 and 4 also. They have supported the prosecution version by stating that while they were going, they heard sound of crying. They went there and saw the occurrence. They have also stated that they have given their statements before the police. Though there are some minor contradictions in the evidences of P.Ws.1,2 and 4 but the evidence of P.W.5 remains intact. 13. P.W.9 has inspected the place of occurrence and he stated that it was a dalan. He has also stated that the witnesses have given their statements under Section 161 of the Code of Criminal Procedure and they have told him about the occurrence. No infirmity has been pointed out in the evidence of this witness. 14. Learned counsel appearing for the appellants has submitted that all the prosecution witnesses have not supported the prosecution case because two witnesses have either been declared tendered or hostile. She further stated that there are some contradictions in the evidences of the witnesses also. 15. It is not essential that all the witnesses should support the prosecution case. The quantity of witnesses does not matter the quality of evidence. The minor contradictions also do not affect the prosecution case in its entirety. 16. After analyzing the entire evidences on record I am of the view that the prosecution was able to prove the 6 charge under Section 304 Part II of the Indian Penal Code and the trial court has rightly convicted and sentenced the appellants, as stated above. Thus, the appeal is without merit and the order of conviction is upheld. 17. So far as the quantum of sentence is concerned, learned counsel for the appellants has submitted that the occurrence is of the year 1992, appellants have remained in custody for about one year and seven months in course of trial and appeal and they have suffered a lot, so the ends of justice will be met if the sentence of the appellants may be reduced to the period already undergone by them. She further submitted that the appellants shall be given the benefit of the provision of the Probation of Offenders Act. 18. This is a case in which elder brother with the help of his son has killed his own younger brother, so the appellants are not entitled to get the benefit of the provision of Probation of Offenders Act. However, I am in agreement with the submission of the learned counsel for the appellants that if the sentence is reduced to the period already undergone by them during trial and appeal, it will be deemed to be sufficient for the ends of justice. I accordingly modify the sentence of the appellants and reduce the same to the period already undergone by them during trial and appeal. 19. In the result, this appeal is dismissed with modification in sentence. 20. As none was appearing on behalf of the appellants, Mrs.Nutan Sahay, Advocate was appointed as Amicus Curiae to assist the court on behalf of the appellants and she has argued. The Secretary, High Court 7 Legal Services Committee, Patna shall ensure payment of fee to Mr.Nutan Sahay, Advocate for assisting this Court as Amicus Curiae. Patna High Court,Patna The 14th July, 2009 Tahir/-(NAFR) ( Shyam Kishore Sharma, J. )