CRIMINAL APPEAL No.37 OF 2003(DB) *** Against the judgment and order dated 25th February, 2003 passed by Sri Lakshman Ram, Additional Sessions Judge- cum-Fast Track Court, Ara in Bhojpur in Sessions Trial No.177 of 1984 *** 1. RAM TAPASHYA BHAR, SON OF LATE DOMAN BHAR 2. KESHAV BHAR, SON OF LATE HARI BACHAN BHAR 3. VISHWA KARMA BHAR, SON OF RAM JATAN BHAR 4. BIRANCHI BHAR, SON OF LATE HARI BACHAN BHAR 5. PURAN BHAR, SON OF THEGHU BHAR 6. FAGU BHAR, SON OF LATE HARI BACHAN BHAR 7. KASHI BHAR RAM, SON OF LATE HARI BACHAN BHAR 8. RAM KESHWAR BHAR, SON OF LATE HARI BACHAN BHAR, ALL RESIDENTS OF VILLAGE SABALPUR GANGAULI, P.S. BARAHARA, DISTRICT BHOJPUR, ARA---------------APPELLANTS Versus THE STATE OF BIHAR----------------------------RESPONDENT *** For the Appellants: Mr.Madheshwar Singh, Advocate For the State : Mr.Lala Kailash Bihari Prasad, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR.JUSTICE SYED MD.MAHFOOZ ALAM *** S.M.M.Alam, J. This Criminal Appeal has been preferred against the judgment and order dated 25th February, 2002 passed by Sri Lakshman Ram, Additional Sessions Judge-cum- Presiding Officer, Fast Track Court No.III, Bhojpur at Ara in Sessions Trial No.177 of 1984 whereby appellant no.1 Ram Tapashya Bhar has been convicted under Sections 148 302, and 307/149 of the Indian Penal Code, appellant nos. 2 and 7, namely, Keshav Bhar and Kashi Bhar Ram have been convicted under Sections 148, 302/149 and 307 of the I.P.C., appellant no.8 Ram Keshwar Bhar has been convicted under Sections 147, 302/149 and 307/149 of the I.P.C., appellant nos. 3, 5 and 6, namely, Vishwa Karma Bhar, Puran Bhar and Fagu Bhar have been convicted under 2 Sections 147, 323, 302/149 and 307/149 of the Indian Penal Code and appellant no.4 Biranchi Bhar has been convicted under Sections 148, 323, 302/149 and 307/149 of the I.P.C. After conviction, appellant no.1 Ram Tapashya Bhar has been sentenced to undergo rigorous imprisonment for life under Sections 302 of the I.P.C., R.I. for ten years under Section 307/149 and R.I. for one year under Section 148 of the I.P.C. Appellant nos. 2 and 7, namely, Keshav Bhar and Kashi Bhar Ram have been sentenced to undergo rigorous imprisonment for life under Section 302/149 I.P.C., R.I. for ten years under Section 307 I.P.C. and R.I. for two years under Section 148 of the I.P.C. Appellant no.8 Ram Keshwar Bhar has been sentenced to undergo rigorous imprisonment for life under Section 302/149 I.P.C., R.I. for ten years under Section 307/149 I.P.C. and R.I. for one year under Section 147 of the I.P.C. Appellant nos.3, 5 and 6, namely, Vishwa Karma Bhar, Puran Bhar and Fagu Bhar have been sentenced to undergo rigorous imprisonment for life under Section 302/149 I.P.C., R.I. for ten years under Section 307/149 I.P.C., R.I. for one year under Section 147 I.P.C. and R. I. for one year under Section 323 of the I.P.C. Appellant no.4 Biranchi Bhari has been sentenced to undergo rigorous imprisonment for life under Section 302/149 I.P.C., R.I. for ten years under Section 307/149 I.P.C., R.I. for one year under Section 323 and R.I. for two years under Section 148 of the Indian Penal Code. The learned trial court has been pleased to direct that all the sentences passed against the appellants shall run concurrently. 3 2. The prosecution case, as per the fardbeyan of P.W.5 Deomuni Bhar, son of Late Makuni Bhar of village Sabalpur Gangauli, P.S. Barhara, District, Bhojpur recorded by S.I., S.Ahmad Khan of Barhara P.S. on 7.7.1980 at 13.30 hours at Manichhapra State Dispensary (Barhara), in brief, is that on the same day at about 9 A.M. appellant Ram Tapashya Bhar was digging earth from the land belonging to the informant lying adjacent to his house whereupon informant’s brother Chhatu Bhar (deceased) arrived there and on protest, some exchange of hot words took place between the informant’s brother and appellant Ram Tapashya Bhar. On hearing altercation between the aforesaid persons, the informant reached there. Thereafter Ram Tapashya Bhar went to his house and immediately returned back with bhala in his hand along with rest seven appellants and one Hari Charan Bhar who were also variously armed. As soon as they came there Hari Charn Bhar (not put on trial) gave order to kill informant’s brother Chhatu Bhar whereupon Ram Tapashya Bhar gave a bhala blow causing injury on the left side of the chest of Chhatu Bhar, who fell down and died at the spot. It is further said that Mungia Devi (P.W.1), Kamata Bhar (P.W.3), Vishwanath Bhar (P.W.2) and informant (P.W.5) tried to rescue Chhatu Bhar but they were also assaulted by other appellants. There is specific allegation that appellant Kashi Bhar gave bhala blow to Mungia Devi as a result of which she received bhala injury on her right finger. Appellant Keshav Bhar gave farsa blow to P.W.3 Kamta Bhar causing injury on his head and when Kamta Bhar fell down, Deonandan Bhar and Puran Bhar assaulted him with lath. Thereafter 4 appellant Kashi Ram Bhar gave farsa blow to the informant causing injury on his head and Fagu Bhar gave lathi blow on the left arm of the informant. Appellant Biranchi Bhar assaulted the informant with lathi portion of bhala and appellant Puran Bhar assaulted the informant with lathi. It has further been said that Vishwa Karma Bhar also assaulted Kamta Bhar with lathi. After assault, all the culprits fled away. 3. On the basis of the aforesaid fardbeyan of the informant, Barhara P.S. Case No.3 dated 7.7.80 under sections 147, 148, 149, 324, 323 and 302 of the Indian Penal Code was instituted and investigation of the case was taken up by (P.W.8) S.I., S. Ahmad Khan of the said Police Station, who investigated the case and submitted charge sheet against the appellants on the basis of which cognizance was taken and the case was committed to the Court of Session vide order dated 29.3.1984 passed by Sri Harish Chandra Singh, Sub-Divisional Judicial Magistrate, Ara in G.R. No.1301/80 arising out of Barhara P.S. Case No.3 dated 7.7.80. 4. After commitment of the case, the charges under different heads were framed against the appellants who denied the charges and thus, trial started. 5. The defence of the appellants is total denial of the occurrence and of false implication. 6. During the trial, the prosecution has examined altogether nine witnesses in support of its case, namely, P.W.1 Mungiya Devi, P.W.2 Vishwanath Bhar, P.W.3 Kamta Bhar, P.W.4 Kamla Bhar, P.W.5 Deo Muni Bhar, P.W.6 Dr. Anil Kumar, P.W.7 Md. Yusuf, P.W.8 S. Ahmad Khan and P.W.9 Ram Snehi Pandey. Besides that, the court has also 5 examined one witness as C.W.1 Brij Nandan Singh. On behalf of the defence, no witness has been examined. 7. P.W.1 Mungia Devi is the wife of the deceased. She claims to be an eye-witness of the occurrence. Her evidence is that on the alleged date of occurrence, Ram Tapashya was digging land adjacent to her house whereupon her husband lodged protest and asked him not dig the land. After some altercation Ram Tapashya went to his house and came back with bhala and at the instigation of Hari Charan Bhar, Ram Tapashya gave a bhala blow to her husband which caused injury on the left side of chest of her husband. Being injured her husband fell down and when she wanted to save her husband Ram Tapashya attacked her and gave bhala blow to her as a result of which she sustained injuries on her hand. Then Biranchi attacked her with bhala which also hit her. She has further deposed that Keshav and Parsuram had farsa in their hands. Fagu, Ram Kishore, Puran and Vishwa Karma had lathi in their hands and they also assaulted her with lathi. Others had also lathi in their hands. Appellant Keshav assaulted Deomuni Bhar with farsa and Vishwa Karma and Puran assaulted Deomuni with lathi. Ram Keshwar assaulted Deonandan with lathi. In her cross-examination, this witness has stated that Ram Tapashya is her son from her first husband. She has admitted that the deceased was her second husband. At paragraph 8 of her cross-examination she has deposed that P.O. land lies adjacent to the house of appellant Ram Tapashya. 8. P.W.2 Vishwanath Bhar is also an eye-witness of the occurrence. He has deposed that about 11 years ago 6 Chhatu Bhar was murdered. The occurrence had taken placed at 9.00 A.M. At that time he was at his house. On hearing hulla, he rushed towards the place of occurrence and saw Ram Tapashya running towards his house and retuning back with a bhala in his hand and at the instigation of Hari Charan Bhar, Ram Tapashya gave bhala blow to Chhatu Bhar which caused injury towards left side of his body near the last rib. On receiving injuries, Chhatu fell down and then his wife Mungiya tried to save him whereupon Kashi Bhar gave bhala blow to Mungiya Devi which caused injury on her right hand. P.W.3 Kamta Bhar went to intervene whereupon Keshav gave farsa blow to Kamta causing injury on his head. Kamta fell down then Deonandan assaulted him with lathi twice. Thereafter Vishwa Karma and Puran assaulted him with lathi. Vishwanath assaulted Kamla Bhar with lathi. He has further deposed that several persons, namely, Ram Snehi Pandey, Gothauli Singh, Ramdhar Pandey and others saw the occurrence. P.W.2 has further deposed that he along with other injured persons went to the hospital where they were treated. At paragraph 8 of his cross- examination, this witness has deposed that the occurrence was never pre-planned but suddenly it happened. 9. P.W.3 Kamta Bhar is also an eye-witness of the occurrence. He is also one of the injured. He has also deposed that the occurrence took place when deceased Chhatu Bhar asked appellant Ram Tapashya not to dig the land whereupon Ram Tapashya went to his house and retuned back with bhala in his hand along with other accused persons including Hari Bachan who was armed with 7 lathi. P.W.3 has further deposed that at the instigation of Hari Bachan, Ram Tapashya gave bhala blow to Chhatu Bhar who sustained injuries and fell down. He has further deposed that Mungiya Devi wife of Chhatu Bhar tried to save her husband whereupon she was also given bhala blow by Kashi Bhar as a result of which she received injuries on her hand. He has further deposed that he was also assaulted by Kehsav Bhar with farsa as a result of which he received injuries on his head. Being injured, he fell down. He has further deposed that Deonandan Bhar and Puran Bhar both also assaulted him with lathi. He has further deposed that Vishwanath Bhar was assaulted by Vishwa Karma and Puran with lathi and Biranchi assaulted Deomuni with lathi. Due to assault all the above named persons sustained injuries on their persons. At paragraph 8 of his cross-examination, he has stated that P.O. land lies adjacent to south of the house of appellant Ram Tapashya Bhar. 10. P.W.4 Kamla Bhar is also an eye-witness of the occurrence. He is also one of the injured and more or less similar statement has been given by him with regard to the occurrence. As such, I do not feel any necessity to separately incorporate his evidence. 11. P.W.5 Deomuni Bhar is the informant of this case. He is also one of the injured. Hi evidence shows that he has fully corroborated his fardbeyan. His evidence is as follows:- On 7.7.80 at about 9 A.M. he was at his Darwaja. At that time appellant Ram Tapashya was digging earth from the land of deceased Chhatu Bhar whereupon Chhatu Bhar asked him not to dig the land and he stopped Ram Tapashya from 8 digging the land. Ram Tapashya told him that the land belonged to him and as such he would dig the land and he did not stop from digging the land then some hot exchange of words took place. On hearing hulla, Kamla Bhar, Kamta Bhar, Mungiya, Vishwanath and he himself went there. Thereafter Ram Tapashya told Chhatu Bahr “wait, he was coming back” and saying this, he went to his house and returned back with bhala in his hand along with ten other accused persons (named in the F.I.R.) who all were variously armed. As soon as they arrived at the place of occurrence, Ram Tapashya gave bhala blow to Chhatu Bhar who received injuries on the left side of his body near the last ribs. When Chhatu Bhar fell down, Mungiya tried to save him whereupon Mungiya was also assaulted by Kashi Bhar with bhala. She received injuries on her left hand then Keshav Bhar gave Farsa blow on the head of Kamata (P.W.4). Kamta Bhar also fell down and then Deonandan Bhar and Puran Bhar assaulted Kamta Bhar with lathi. He has further deposed that he was also assaulted by Kashi Ram Bhar with Farsa on his head and Fagu Bhar gave lathi blow on his right arm. Biranchi also assaulted him with lathi portion of Bhala to him and Puran also assaulted him with lathi. He has further deposed that Vishwanath was assaulted by Vishwa Karma and Puran with lathi. Kamta was also chased by Vishwa Karma then he was assaulted by lathi. On hulla, several persons reached there and witnessed the occurrence. At paragraph 3 of his cross-examination, P.W.3 has deposed that P.O. land lies adjacent south of the house of Ram Tapashya. He has further deposed that 9 the house of other accused persons also lies near the P.O. land. 12. P.W.6 Anil Kumar is doctor who had examined injured, namely, Bishwanath Rai, Deomuni Bhar, Kamta Rai and Kamla Bhar. His evidence is as follows :- On 7.7.1980 he examined Bishwanath Rai and found the following injuries on his person:- (i) one swelling over the left deltoid region of the joint 3” x 2” (ii) one swelling over the lateral side of the left elbow joint 3” x 1” (iii) one swelling over the lateral aspect of the left forearm 3 ½” x 1 ½”. He has opined that all the injuries were simple in nature and were caused by hard blunt substance like lathi. The injury report of Bishwanath Rai has been marked as Ext.1. P.W.6 has further deposed that on the same day he examined Deomuni Bhar and found the following injuries on his person:- (i) One cut injury on the front of the Scalp of the size 1” x ½” x ¼”. (ii) One cut injury over the occipital region of the scalp of the size 2 ½” x ½” x ¼” (iii) One swelling over the right deltoid region 4” x 1” (iv)One swelling over the ulnar aspect of the right forearm just above the wrist joint size 3” x 2” He has opined that injury nos. (i) and (ii) were simple in nature and caused by sharp cutting weapon like Farsa and 10 rest injuries were caused by hard and blunt substance which were also simple in nature. The injury report of Deomuni Bhar has been marked as Ext.1/1. P.W.6 has further deposed that on the same day he examined Kamta Rai (Bhar) and found the following injuries on his person:- (i) One cut injury over the middle of the Scalp 2” x 1 1/2” x ¼” (ii) One swelling over the back of the left lower part of the coastal margin 5” x 2” (iii)One swelling over the left side of the back of the chest just below the angle of the Scapula 6” x 1” He has opined that injury no. (1) is simple in nature caused by sharp cutting weapon like farsa and injury nos. (ii) and (iii) were simple in nature caused by hard and blunt substance like lathi. The injury report of Kamta Rai has been marked as Ext.1/2. P.W.6 has further deposed that he had examined Kamla Bhar and found the following injuries on his person:- (i)one swelling over the right middle finger of the size ½” x 1/8” He has opined that injury is simple in nature and caused by hard blunt substance like lathi. The injury report of Kamla Bhar has been marked as Ext.1/3. 13. P.W.7 Md. Yusuf is a formal witness. He has proved formal first information report and the signature of the then Officer Incharge Sadruddin Ahmad Khan on the said formal F.I.R. which have been marked as Exts.2 and 3, 11 respectively. He has also proved inquest report of the deceased which has been marked as Ext.4. 14. P.W.8 Sadruddin Ahmad Khan is the Investigating Officer of this case. His evidence is that on 7.7.1980 he was posted as Officer Incharge of Barhara P.S. On the same day at 13.30 hours he recorded the fardbeyan of Deomuni Bhar at Manichhapra Rajkiya Hospital, Bhojpur. After recording the fardbeyan, he read over the same to Deomuni Bhar who put his signature over the same. Thereafter he recorded his further statement and then prepared injury reports of Deomuni Bhar, Bishwanath Bhar, Kamla Bhar and Kamta Bhar. After that, he inspected the place of occurrence which lies in village Sabalpur, Gangauli. The place of occurrence is situated in Bharwa Toli which is at a distance of about 200 yards west from the main village. He has further deposed that the place of occurrence of this case is a Parti land which is adjacent south of the house of appellant Ram Tapashya Bhar. The house of accused Hari Bachan Bhar is situated adjacent to north of the P.O. land. Towards north of the P.O. land, there is road of District Board. Towards west of the place of occurrence, there is a Rasta and towards west and south of Rasta there is house of the informant. He has further deposed that the dead body was found lying in the field about ten feet east from western Aal (ridge) of the said field. He has further deposed that he prepared the inquest report of the dead body. Thereafter he recorded the statements of other witnesses and after receiving post mortem report of the deceased and injury reports of the injured, he handed over the charge of this case to another Investigating Officer. He has deposed that he had seized a blood-stained bhala as 12 well as blood-stained earth from the place of occurrence. In paragraph 9 of his cross-examination, he has deposed that he did not find any mark of digging of earth at the place of occurrence. 15. P.W.9 Ram Snehi Pandey is a hostile witness and he has not supported the case of the prosecution. 16. One witness, namely, Brij Nandan Singh was examined as court witness and it appears that he has proved the post mortem report of the deceased which was prepared by Dr. R.N. Sahay. The post mortem report has been marked as Ext.5. No other witness has been examined on behalf of the prosecution. The defence has not adduced any oral or documentary evidence. 17. From the evidence of the prosecution witnesses, as discussed above it stands well established that on 7.7.1980 at about 9.00 A.M. an occurrence of assault had taken place on account of digging of earth by appellant Ram Tapashya Bhar and on protest lodged by deceased Chhatu Bhar and during assault appellant Ram Tapashya Bhar had given a bhala blow to deceased Chhatu Bhar as a result of which Chhatu Bhar received bhala injuries on his person and died. Although the doctor who had conducted post mortem examination on the dead body of deceased Chhatu Bhar could not be examined but the post mortem report was brought on record, proved by a formal witness. The same is Ext.5. Since the post mortem report is a part of the official record of the Hospital when post mortem is conducted, as such I am of the view that it can be looked into for the purpose of corroboration of ocular evidence. From perusal of post mortem report (Ext.5) it appears that the deceased had sustained punctured wound measuring 1 ½” 13 x 1” x viscera deep caused by sharp and pointed weapon which had injured abdominal wall and peritoneum and small intestine of the deceased. Ext.5 further shows that there was wound of entrance as well as the wound of exit of the instrument besides punctured aorta and abdominal cavity. It further shows that the doctor was of the view that the death was caused due to haemorrhage and shock caused by above said injuries. Thus, from the evidence of the above said prosecution witnesses coupled with Ext.5 i.e. post mortem report it is established beyond doubt that the death of deceased Chhathu Bhar was homicidal. 18. From the evidence of the above said witnesses it further transpires that during commission of assault, several persons of the prosecution side, namely, Mungiya Devi, Kamta Bhar, Bishwanath Rai and Kamla Bhar were also assaulted by the accused persons and from the evidence of P.W.6 Dr. Anil Kumar, it appears that on examination of injured persons, namely, Bishwanath Rai, Deomuni Bhar, Kamta Bhar and Kamla Bhar, he had found injuries on their persons. According to his evidence, he had found three injuries of hard and blunt substance of simple in nature on the person of Bishwanath Rai and four injuries on the person of Deomuni Bhar out of which injury nos. 1 and 2 were of simple in nature caused by sharp cutting weapon and the remaining two injuries of hard and blunt substances both were of simple in nature. He has further deposed that on the person of Kamta Bhar he had found three injuries of simple in nature out of which injury no.1 was caused by sharp cutting weapon like Farsa and injury nos. 2 and 3 were caused by hard and blunt substance. He has further deposed that he had also found 14 one simple injury of hard and blunt substance on the person of Kamla Bhar. Thus, from the evidence of P.W.6, the oral evidence of the prosecution witnesses that during assault Bishwanath Rai, Deomuni Bhar, Kamta Bhar and Kamla Bhar had sustained injuries, finds corroboration. However, the evidence of P.W.6 does not support this fact that during assault Mungiya Devi had also sustained injuries. 19. It has been submitted by the learned Advocate of the appellants that if the entire case of the prosecution is accepted in toto even then this case will not fall in the category of culpable homicide amounting to murder as it is admitted position that appellant Ram Tapshya Bhar gave single blow to the deceased and there is no evidence that he had ever tried to give repeated blow to the deceased as there is also no iota of evidence on record that any other appellants had tried to inflict any injury to the deceased. He submitted that abovementioned circumstance establishes beyond doubt that appellant Ram Tapashya Bhar or any other appellants had no intention to kill the deceased and so, the conviction of appellant Ram Tapashya under Section 302 of the I.P.C. is bad in law. 20. On the other hand, the learned State counsel argued that post mortem report (Ext.5) will show that although appellant Ram Tapashya had given only one bhala blow to deceased Chhathu bhar but the force with which he gave blow to the deceased causing punctured wound in the abdomen with wound of entry and wound of exit shows that the intention of the appellant was to kill the deceased and so, even if appellant Ram Tapashya did not repeat the blow, he is liable to be punished under section 302 of the Indian Penal Code. In support of his argument, the learned 15 State Counsel has placed reliance upon the decision reported in BBCJ 1991 (SC) Page 139 [Jai Prakash, Appellant Vrs. State (Delhi Administration), Respondent]. He has placed reliance upon the following observations made at paragraph 18 of the said judgment which is being quoted below:- “We are concerned under clause