CRIMINAL APPEAL (SJ) NO.233 OF 2007 Against the judgement of conviction dated 22.12.2006 and order of sentence dated 26.12.2006 passed by Presiding Officer of Fast Track Court - I, Rohtas at Sasaram in Sessions Trial No.367 of 1992, Trial No.121 of 2002. 1. KANHAIYA KAHAR, Son of Late Gulab Kahar 2. BABAN KAHAR, Son of Late Bishwanath Kahar All are residents of village-Gunsage, P.S.Dinara, District-Rohtas... .... Appellants. VERSUS STATE OF BIHAR.... .... Respondent. For the Appellants: S/Sri Vikram Deo Singh, Dharmendra Kumar Singh & Sadu Nand Roy, Advocates. For the Respondent: - Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The two appellants were put on trial by the learned Presiding Officer of Fast Track Court No.I, Rohtas at Sasaram by being charged under Section 302/34 IPC in Sessions Trial No.367 of 1992 and by judgment dated 22.12.2006 both the appellants were found guilty of committing offence under Section 304-part II/34 IPC. After hearing the appellants on sentence, the learned trial Judge directed each of them to suffer rigorous imprisonment for five years. The appellants have come up before this Court through 2 the present appeal to challenge their conviction. 2. The fardbeyan of P.W.6 Parmeshwar Pandit is the basis of the prosecution case. It appears that the deceased Kesho Pandit who was the son of the informant was fishing in a pond in his village with P.w.3 and others when appellant Baban Kahar came there to lodge a protest by stating that he had got the settlement of the pond in his favour and as such they should not fish. There was a verbal dual between the deceased and appellant Baban Kahar. It is alleged that Baban Kahar went back to his house to call other accused persons including appellant Kanhaiya Kahar and they came and again objected to the fishing by the deceased and others. That resulted into a more heated exchange of words upon which, it is alleged, that appellant Baban Kahar caught hold of the deceased whereafter appellant Kanhaiya Kahar dealt a bamboo blow on the head of the deceased as a result of which he fell down. 3. The informant stated that he was informed by P.W.2 Ram Bachan Paswan about his son being assaulted and lying injured. P.W.6 rushed to the pond and shifted the deceased in an injured condition to the clinic of Dr. Indrajeet 3 Prakash situated at Dinara where the deceased was treated and, lastly, died. The statement of P.W.6 was recorded in the clinic of Dr. Indrajeet Prakash on the basis of which the FIR was drawn up. 4. The investigating officer has not been examined. But, it appears from the evidence of P.W.5, Dr. Chandrashekhar Prasad Singh that on death of the deceased Keshwar Pandit postmortem examination was held by him and he prepared the report Ext-1. Witnesses were also examined by the police and on close of the investigation, the appellants were sent up for trial which ultimately resulted into their conviction. 5. The defence of the appellants was that they had falsely been implicated due only to the fact that there was some enmity between P.W.2 Ram Bachan Paswan and appellant Baban Kahar. The fact of the matter was that the deceased slipped at the Ghat of the pond and was injured on his head and subsequently succumbed to that injury. 6. The prosecution examined as many as eight witnesses out of whom P.W.1 Ram Jeet Paswan and P.W.4 Mohan Sah were declared hostile. However, on perusal of the evidence of the two hostile witnesses what appears is that they were 4 also stating that some occurrence had taken place about which they had come to know about subsequent to the date of the occurrence. P.W.2 Ram Bachan Paswan had given an eye witness account by stating that he was also present at the time of occurrence at the pond and saw that the deceased Keshwar Pandit and Santosh Pandit(P.W.3) were fishing in its water. Satyadeo and Baban Kahar came there and objected to the fishing by the deceased and P.W.3 upon which the deceased stated that he will go on fishing as others also do. The prosecution party came there and it is stated by P.W.2 that appellant Baban Kahar caught hold of the deceased and appellant Kanhaiya Kahar dealt a bamboo blow on his head as a result of which he fell down. By that time, Mohan Sah(P.W.4) and Ram Jeet Paswan(P.W.1) also came there along with other villagers and took the deceased to Dinara hospital. In cross- examination P.W.2 has admitted in paragraph-4 that appellant Baban Kahar had filed a criminal case against him long, long back and further that he was sitting very near the place where the assault had been given by the appellants to the deceased. The appellants entered into water of the pond where the deceased Keshwar Pandit and 5 P.W.3 Santosh Pandit were also there and because water had dried up, they were fishing in it. P.W.2 has stated in paragraph-9 that he did not go to tell any body about the occurrence and further that he did not intervene to save the deceased or Santosh Pandit. He had simply stated that when others were fishing, the two also be permitted to fish as is the statement appearing in paragraph-8 and partly 9. P.w.2 stated that he did not count the number of blows given by bamboo, but appears correcting himself when he stated in paragraph-10 that single blow with bamboo was given and no further blow either with bamboo or lathi was wielded by the appellant. P.W.2 stated that after the occurrence many persons passed by the road passing through the pond and he did not attempt to raise any alarm and when the assault was taking place no one was present there. He further stated that he was about 10 feet inside the pond at the time of actual assault. In paragraph-15 P.W.2 stated that no time was consumed in the incident and as such he could not raise any alarm so as to saving the deceased. In the same paragraph-15 he stated that he went into the village to call persons and while he was going he told every one about the 6 incident of Marpit. In paragraph-15 he has further stated that he had informed the father of the deceased, namely, P.W.6. P.W.2 was cross- examined on two dates and on the day he was last cross-examined he stated that when the deceased and another was fishing in the pond no particular villagers had assembled there and he had informed the father of the deceased, i.e., the P.W.6 Parmeshwar Pandit about the incident. 7. On perusal of the evidence of P.W.2 what appears is that it is true that he was inimical towards the appellant Baban Kahar but his evidence in paragraph-4 indicates that the case had been lodged against him by appellant Baban Kahar long back and that does not appear controverted by the defence. It might have been a fact between the appellant Baban Kahar and P.W.2 in the past, but there is no evidence available on record that the acrimony on account of old enmity was continuing which could have motivated P.W.2 to falsely depose against him to ensure that appellant Baban was convicted. The attention of the court was also drawn by the learned counsel for the appellant to a solitary statement in paragraph-4 of P.W.2 in which he has stated that he did not meet any police officer in 7 connection with the case. What was attempted to make out was that the witness P.W.2 had never made any statement before the police. If I accept the contention of the learned counsel for the appellants, then it would be simply overstretching the appreciation of the evidence. The statement which has been used for making the above submission does not give any impression as if P.W.2 had not given any statement before the police. Might be that he had not met any police officer in connection with the case which had many meanings and that statement could not be utilized to discard the evidence of P.W.2 by noting that he had not made any statement before the police officer. The above finding appears borne out from the fact that unless the witness had been examined by the police, his name could not have figured in the chargesheet as a witness. The name of P.W.2 Ram Bachan Paswan appears in column no.6 of the chargesheet at sl.no.2 and that document indicates that he was a witness cited by the prosecution. In that particular view, I do not find any reason to discard the evidence of P.W.2. 8. The other reason which was assigned for not relying upon the evidence of P.W.2 was 8 that he was stating that the occurrence had taken place on the bank of the pond, but somewhere in the evidence he was pointing out that at that particular time he was some ten feet below the embankment of the pond and was in water. If the defence was desirous of taking any advantage of the above evidence it ought to have got more explanations from P.W.2 as to the topography of the place of occurrence so as to clarifying that the place, at which P.W.2 could have been inside the pond, had made him not to see the main part of assault which was given by appellant Kanhaiya Kahar on the deceased. Moreover, in paragraph-15 of his evidence he has clearly stated that he went inside the village and informed the father of the deceased, i.e., P.W.6 Parmeshwar Pandit. 9. P.W.6 Parmeshwar Pandit also states that he had been informed by P.W.2 Ram Bachan Paswan that his son had been assaulted by appellant Kanhaiya Kahar. Thus, it makes out a complete chain of evidence indicating that P.W.2 was a competent witness. After cautiously and carefully considering the evidence of P.W.2, I find him a competent witness and there is no reason to discard his evidence. 10. P.W.3 Santosh Pandit, as may appear 9 from the very report as also the evidence of P.W.2, was the other person who was fishing with the deceased. He is an eye witness and he has given a complete account of the incident. Some references were made to his evidence as to what were the pitfalls. The evidences which could touch upon the central theme of the prosecution which is that after being objected to fish in the water of the pond the deceased had a verbal dual with appellant Baban Kahar and others and that aggravated the situation upon which appellant Baban Kahar caught hold of him and appellant Kanhaiya Kahar had dealt a bamboo blow on his head. Appellants were never suggesting the witness that they had anything to do as regards the commission of offence. We have to be very careful in reading and accepting such sort of evidences as regards the cross-examination of witness if they are not touching upon the merit of the prosecution case. The meaningless cross- examination as regards the apparel which could be worn by a witness is never going to decide the merits of the charges. The facts of the case which are narrated by an eye witness, like, P.W.3 are relevant facts which go to decide the charges when it comes to same being proved. Santosh 10 Pandit in his evidence has given correct and proper description of the incident and admittedly he was present at the place of occurrence and his presence has not been challenged by the defence rather during the cross-examination of P.W.2 Ram Bachan Paswan, this fact was reintroduced by the defence that he was accompanying the deceased and was also seen with him in the same water. His evidence also appears fit to be relied upon. 11. I have referred to the evidence of two hostile witnesses, namely, P.W.1 and P.W.4. It is true that they were turned hostile, but they were stating that some occurrence of commission of murder has occurred. That way, the evidence of P.Ws.1 and 4 also lends support to the prosecution case that an occurrence of murder of Keshwar Pandit had occurred. 12. Further corroboration comes from the evidence of P.W.5 Dr. Chandra Shekhar Prasad who had held postmortem examination on the dead body of Keshwar Pandit and had issued Ext-1, the postmortem examination report. As per the evidence of P.W.5, he had found following antemortem injuries:- (i) Lacerated wound on left parietal 1½”x ½” x bone deep. It was bleeding from both the nostril of the deceased. On dissection P.W.5 found fracture of left parietal bone in left 11 parietal lob of brain compressed and cranial cavity was full of clotted blood. In the opinion of P.W.5, the above injury was caused by hard and blunt substance and time elapsed since death was in between 6 to 36 hours. 13. In paragraph-3 P.W.5 stated that the injury which has been described by him may be caused by blow with a bamboo. Thus, the evidence of P.W.5 and the opinion expressed by him regarding the weapon which could have caused the injury which ultimately proved fatal was supporting the prosecution charge that it was on account of the blow given by a bamboo that the deceased had died as per the evidence of the witnesses. 14. On consideration of the evidence discussed just now, what this Court finds is that the prosecution has succeeded in establishing all facts relating to the occurrence and as such the participation of the appellants in commission of the offence was fully established. 15. The learned counsel appearing for the appellants submitted that the appellants were sentenced to rigorous imprisonment for five years after being convicted under Section 304 Part- II/34 IPC and they have remained in custody for 12 above five years and as such the court should reduce the conviction and sentence. 16. In my considered view, the sentence which was inflicted upon the appellants by the trial court was very minimum and the trial Judge was sounding very lenient on the appellants and that does not require further reduction. As such, the sentence passed upon the two appellants is also upheld. 17. In the result, the appeal is dismissed. Patna High Court, Dated, the 19th day of August, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)