CRIMINAL APPEAL(DB) No.419 OF 1988 ------ Against the judgment of conviction and order of sentence dated 29.07.1988 passed by Shri A.G.Dutta, 2nd Additional Sessions Judge, Katihar in Sessions Case No. 153 of 1986. ----- Jagadish Thakur son of Late Munshi Thakur resident of village Naya Tola,P.S.Katihar, District Katihar ---- ----- Appellant Versus The State of Bihar ---- ----- Respondent ----- For the appellant : M/s R.C.Thakur & Kamal Kishor Singh For the State : Miss Shashi Bala Verma, Addl.P.P. ----- P R E S E N T THE HON'BLE MR.JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR.JUSTICE DINESH KUMAR SINGH ----- S.K.Sharma & D.K.Singh,JJ. The sole appellant Jagadish Thakaur has filed this appeal against the judgment of conviction and order of sentence dated 29.07.1988 passed by 2nd Additional Sessions Judge, Katihar in Sessions Trial No. 153 of 1986 whereby he was convicted under Section 302 of the Indian Penal Code for committing the murder of Manju Kumari and was sentenced to undergo rigorous imprisonment for life. 2. In short, the prosecution case is that in the night of 15th October, 1985 the informant Krishna Nand Jha (P.W.9) was sleeping in his room along with his wife Jogmaya Devi. His room was locked from inside and an earthen light was burning. Allegation is that at about midnight, one Bibhuti Bishwas came at the door of the room and he requested the informant to open the door 2 and it was stated that the Sub-Inspector of Police has come. Despite being requested, protest was made not to open the door by the informant’s wife but the informant opened the door under the impression that Darogajee has come and immediately after opening the door, Bhola Thakur (not put on trial) fired from his pistol hitting on the chest of the informant’s wife who was standing just by the side of the informant and after receiving injury she fell down. Informant’s daughter Manju Kumari came to save her mother and father, then she received fire armed injury on her chest caused by this appellant Jagadish Thakur. She also fell down on the ground. On account of fire arm injury, both of injured died. The motive of the occurrence alleged to be an attempt on the life of informant being made by one of the named accused Moti Parihar for which a case under Section 307 of the Indian Penal Code was instituted against Moti Parihar vide Katihar P.S.Case No. 234 of 1982. In that case, Moti Parihar was evading arrest due shelter being given by another named accused Bhola Thakur and the present appellant. The informant had reported about the whereabout of Moti Parihar and 3 requested the Investigating Officer of that case for arresting of Moti Parihar. Another motive alleged was that Katihar P.S.Case no. 131 of 1982 was instituted against the appellant by Mosstt. Kheriya Devi in which the informant was a witness. Other motive alleged was that 3 or 4 days prior to the occurrence, appellant Jagadish Thakur had tried to prevent the informant from giving evidence against him and for that there was quarrel between the informant and the appellant. The fardbeyan of the informant (Ext.4) resulted in registration of Dandkhora P.S.case No. 86 of 1985 for offences under Sections 302/34 of the Indian Penal Code against this appellant and three others namely, Bibhuti Bishwas, Bhola Thakur and Moti Parihar. On the basis of fardbeyan, a formal F.I.R. (Ext.5) was drawn up. The matter was investigated into and after completion of investigation, chargesheet was submitted against this appellant and Bibhuti Bishwas showing other two co-accused Moti Parihar and Bhola Thakur as absconders. Cognizance was taken and case was committed to the court of sessions where this appellant was charged under Section 302 of the Indian Penal Code for 4 committing murder of Manju Kumari on 15/16th October, 1985. This appellant was further charged under Section 324 of the Indian Penal Code for causing hurt to the informant Krishna Nand Jha (P.W.9) by means of fire arm. Another accused Bibhuti Bishwas who also faced the trial was charged under Section 302/34 of the Indian Penal Code for committing murder of Jogmaya Devi and Manju Kumari in the night of 15/16th October, 1985. Charges were explained to the accused persons. They pleaded innocence and preferred to face the trial. After trial, accused Bibhuti Bishwas was acquitted of the charge and this appellant was convicted and sentenced, as stated above. 3. We have to see whether the prosecution was able to prove the charge against this appellant beyond the shadow of all reasonable doubts or not or appraisal of evidence on record requires any interference with the judgment impugned. 4. In order to prove the case, the prosecution has examined altogether 13 witnesses. They are : Hari Mandal (P.W.1), Vidyanad Jha (P.W.2), Basant Lal Bishwas (P.W.3), 5 Kedar Nath Prasad (P.W.4), Arun Kumar Jha (P.W.5), Jagdish Jha (P.W.6), Panchanan Mahto (P.W.7), Dr.Anand Kishore Choudhary (P.W.8), Krishna Nand Jha (P.W.9), Chandralekha Sharma (P.W.10), Bipin Kumar (P.W.11), Jayant Kumar Singh (P.W.12) and Suresh Kumar Tuddu (P.W.13). 5. P.W.1 Hari Mandal has been tendered by the Prosecution. P.W.2 Vidyanand Jha is not an eye witness of the occurrence. He had come after the occurrence and had seen Jogmaya Devi and her daughter Manju Mumari in injured condition. P.W.3 Basant Lal Bishwas and P.W.4 Kedar Nath Prasad are the witness of inquest of two dead bodies of ladies. P.W.5 Arun Kumar Jha who is son of the informant was present in the room along with the deceased and the informant at the time of occurrence. In 1987 at the time of deposition, he was 12 years of age. He has stated that after hearing the sound of firing, he got up and found his mother and sister dead. This witness is not a witness of actual murder. P.W.6 Jagdish Jha and P.W.7 Punchanan Mahto have been tendered by the prosecution. P.W.8 Dr.Anand Kishore Choudhary has performed the postmortem over the dead bodies of Jogmaya Devi and Manju Kumari. P.W.9 Krishna Nand 6 Jha is the informant himself. P.W.10 is Dr.Chandralekha Sharma who has examined the informant. P.Ws.11,12 and 13 are the Investigating Officers who at some point of time associated with the investigation. 6. The defence of the appellant was of his false implication on account of enmity. Another defence is that it was a dark night and there was no source of identification. The earthen light which was allegedly burning in the room was not enough for visible perception of the place of occurrence. 7. The sole witness of the occurrence is the informant P.W.9. He has stated that his wife Jogmaya Devi and daughter Manju Kumari along with others were sleeping inside the room. He was on a separate cot with Arun Kumar Jha (P.W.5). On another cot, the informant’s wife Jogmaya Devi along with two daughters Manju Kumari, Veena Kumari and son Chandan Kumar Jha were sleeping. The informant has stated that he heard the voice of Bibhuti Bishwas who was asking him to come out from the room because he had filed a petition before the police and Darogajee had come to make enquiry. After identifying the voice of Bibhuti 7 Bishwas, the informant was trying to open the door but it was objected by his wife. He further stated that as he has filed a petition before the police, he suspected that the Officer-in- charge might have come, he opened the door. As soon as the door was opened, the informant and his wife saw appellant Jagdish Thakur and Bhola Thakur standing there and seeing them there, the informant and his wife tried to shut the door but in the meantime Bhola Thakur (not put on trial) fired from his pistol which caused injury on the chest of Jogmaya Devi who was standing just by the side of the informant. After receiving injury Jogmaya Devi fell down. Seeing this, his daughter Manju Kumari came ahead the informant. In the meantime, appellant Jagadish Thakur fired from his pistol which hit on the chest of Manju Kumari who fell down on the ground. Meanwhile Arun Kumar Jha (P.W.5) woke up and he started calling his uncle Vidyanand Jha P.W.2. The informant has stated in his evidence that accused Moti Parihar was also standing behind accused Bhola and Jagdish Thakur. The motive given in the fardbeyan is that 3-4 days prior to the occurrence, there was altercation with the appellant who had 8 threatened of dire consequences. Prior to the occurrence, the appellant was asking the informant to swear affidavit in Katihar P.S.Case No. 131 of 1982 filed by Mostt. Kheria Devi in which he was a witness. In the year 1982, Moti Parihar had assaulted the informant for which Katihar P.S.Case No. 234 of 1982 under Section 307 of the Indian Penal Code was registered in which Moti Parihar was absconding. The informant had filed a petition before the Director General of Police for arrest of Moti Parihar narrating his grievance against the appellant and accused Bhola Thakur who were giving shelter to Moti Parihar. The houses of the appellant and Bhola Thakur were searched by the police for arresting Moti Parihar but he was not traced. Informant has stated that on account of enmity, his wife and daughter were killed. 8. P.W.10 is Dr. Chandralekha Sharma. She is the person who had examined informant Krishna Nand Jha (P.W.9) on 16.10.1985 and found one black spot on elbow joint of right hand about ½” x ½” and one abrasion on the little finger of left hand. The informant in his evidence has stated that he was examined by P.W.10. 9 9. P.W.8 is Dr. Anand Kishore Choudhary who had performed the post mortem examination over the dead bodies of Jogmaya Devi and Manju Devi on 16.10.1985. P.W.8 found the following ante mortem injuries on the person of Jogmaya Devi : (i) Thumb and index finger of right hand was swellen and bruised. (ii) A small inverted wound ¼” diameter on back of left side below the lower and at scapula with charred margin. (iii) One everted wound on the front of the chest on left side below the clavical ½” in diameter. 10. On the same day, this witness had performed post mortem examination on the person of Manju Kumari and found following ante mortem injury: (i) Injury below the clavical on the left side ¼” in diameter with charred margin. One bullet was found imbedded in fifth thoracic vertebrae. The recovered bullet was handed over to the constable who had brought the dead body. According to the doctor, the death of Manju Kumari was on account of injury to the aorta and left lung due to fire arm shot from close range. The post mortem reports of Jogmaya Devi and Manju Kumari have been marked as Exts. 2 and 2/1 respectively. 10 11. P.W.13 Suresh Kumar Tuddu is the Investigating Officer. He had visited the place of occurrence in the night at 12.00. This witness has stated that there was a earthen light at the place of occurrence. The light was not enough from which the place of occurrence could have been inspected. One constable was deputed there. This witness has stated that he went to search the accused persons and returned at 4.10 A.M. By that time, the constable has arranged for the light and thereafter the place of occurrence was inspected. The place of occurrence has been described by this witness in paragraph 6 of his deposition wherein he has stated that there was a room in the eastern side of the courtyard in which the dead bodies of wife of the informant and his daughter were found and beneath the dead bodies, he found blood. 12. Argument of learned counsel for the appellant is that as the light was not enough as it was quite dim, hence, it was not possible for the informant to identify the appellant despite the fact that there is no evidence that the appellant has entered inside the room. Further argument is that on account of admitted enmity, 11 appellant has been falsely implicated. It has been next submitted that in case of single identification, the prosecution is required to prove its case beyond the shadow of all reasonable doubt. P.W.5 who was present in the room had not identified the appellant and this is a serious lacuna. As such the appellant deserves to be acquitted. 13. Villagers are accustomed to identify another person in dim light or even without any light because tube, bulb or other means of light are not available there. It has been settled by catena of decisions that the villagers can properly identify a person in dim light. A person who lives in urban area cannot identify another person without light or in dim light but a person who lives in rural area can identify a person in dim light. In this case, the Investigating Officer has found an earthen light burning in the room. So the identification of the appellant in the dim light at the place of occurrence is established beyond the shadow of all reasonable doubts. Thus the prosecution has been able to prove the charge against the appellant beyond the shadow of all reasonable doubts. 12 14. Further argument of the learned counsel for the appellant is that, according to allegation, the intention was only to cause death or to cause bodily injury to the informant and not to others. So there was no intention to cause death to other family members besides the informant and it has been submitted that the offence attributed against the appellant can be said to be the culpable homicide not amounting to murder. According to the evidence of the informant, the enmity was only with him and not with other family members. Thus, it appears that the intention was only to cause death to the informant P.W.9 and not his other family members who are associated with the informant. So it has been submitted that, in the facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code is not justified rather considering the facts and the evidences it would only to the extent of culpable homicide not amounting to murder and as such the conviction of the appellant is required to be altered into Section 304 Part II of the Indian Penal Code. 15. After analyzing the evidences and 13 taking into consideration the facts and circumstances of the case, we are in full agreement with the submission of the learned counsel for the appellant that the conviction of the appellant is required to be altered and it is accordingly altered into Section 304 Part II of the Indian Penal Code. 16. So far as the sentence of the appellant under Section 304 Part II of the Indian Penal Code is concerned, it has been submitted that at the time of judgment which was delivered on 29th July, 1988, the age of the appellant was assessed by the court about 50 years and on that basis now he has attained the age of 72 years. Further submission is that the appellant has remained in custody during trial and appeal near about four and half years. So, it is submitted that taking into consideration the age and the period of custody, some lenient view in the matter of sentence may be taken. 17. Considering the age of the appellant and in the facts and circumstances of the case, we are of the view that if the sentence is reduced to the period already undergone by him, it will be sufficient for the ends of justice. 14 Accordingly, the sentence of the appellant is reduced to the period already undergone by him. 18. In the result, this appeal is dismissed with modification in conviction and sentence, as mentioned above. Patna High Court,Patna The 19th August, 2010 Tahir/-(NAFR) ( Shyam Kishore Sharma, J. ) ( Dinesh Kumar Singh, J.)