CRIMINAL APPEAL No.147 OF 2005 (Against the judgment and order of conviction dated 07.02.2005 passed by the learned Additional District and Sessions Judge, Fast Track Court No.IV, Siwan in Sessions Trial No.263 of 1995). RAM ASHRAY PRASAD--------------------------------------(Appellant) Versus STATE OF BIHAR---------------------------------------------(Respondents) ------------ For the appellant : Mr. Ranbir Singh, Amicus Curiae For the State : Mr. S. N. Prasad, A.P.P. WITH CR. APP (SJ) No.160 oF 2005 JIT NARAYAN PRASAD------------------------------------(Appellant) Versus STATE OF BIHAR----------------------------------------(Respondents) ----------- For the appellant : Mr. Anirudh Kr. Sinha, Adv. For the State: Mr. Ajay Mishra, A.P.P. ----------- P R E S E N T THE HON'BLE MR. JUSTICE C.M.PRASAD C. M. Prasad, J. This appeal is against the judgment dated 7.2.2005 of the Additional Sessions Judge-cum-Fast Track Court No.4, Siwan whereby the appellants have been convicted under Section 304/34 of the Indian Penal Code and sentenced to undergo R.I. for ten years and a fine of Rs. 3000/- and in default of payment of fine to undergo S.I. for three months. The appellants have also been convicted under Sections 342 and 323 of the Indian Penal Code and respectively sentenced to undergo R.I. for three months and R.I. for six months. 2. The deceased Indradeo Bhagat was the father of the appellants. The F.I.R. was registered on the basis of the fard-beyan 2 (Ext.-2) which was recorded on the basis of the statement of Parmalal Prasad (P.W.8) on 20.5.1994 at 4:30 P.M. at Barharia Primary Health Centre where the deceased and other injured had been taken for treatment. The prosecution case as stated in the fard-beyan was that that day (20.5.1994) at 7.00 A.M. he (informant Parmalal, Prasad, P.W.8, the full brother of appellant Jit Narayan Prasad) went to the roof of his house for keeping cow dung cakes on a portion of it but his younger brother Jit Narayan Prasad (appellant) prohibited him in keeping it there stating that the roof belonged to him. This informant insisted that it also belonged to him whereupon, the appellant pushed him away and also started beating him with lathi. On his (informant’s) cry, his father Indradeo Bhagat (deceased) came to save the informant but the appellant gave a lathi blow on his (deceased’s) head as a result of which, he (deceased) fell down on receiving injury. It was further alleged that the appellant Jit Narayan Prasad called Ramashray Prasad, the other appellant and thereafter, they closed door of the house from inside. Further allegation was that when the informant’s wife Prabhawati Devi (P.w.5), son Rama Shankar Prasad (P.W. 9) came to save him but they were also assaulted by lathi, fists and slaps at the hands of the appellants. The informant alleged that due to assault he received injury including fracture injury on his left hand. After recording of the F.I.R. on the basis of fard-beyan and completion of investigation charge sheet was submitted and the appellants were put on trial and on conclusion of trial they have been convicted and sentenced as above. 3 3. As may as 15 witnesses were examined by prosecution. P.W. 1 Abdul Jamir, P.W.3 Ram Nath Sah, and P.W. 4 Sahajan Bhagat were produced as witnesses but they turned hostile and did not support the case of prosecution. The P.W.7 Tulsi Prasad was examined only in part during his examination-in-chief but he was not produced for cross- examination. Thus his evidence was not fit to be considered in support of the prosecution case. The P.W.6 Dallan Paswan was a formal witness who proved the fard-beyan marked exhibit-2. P.W. 2 Jai Shankar Rai was a formal witness and he proved the F.I.R. marked Ext.1. P.W.10 Ram Bachan Ram simply stated that the inquest report of the deceased’s dead boy was prepared in his presence but this witness was also not cross-examined. P.W.15 Babu Nand Yadav was a formal witness who proved the writing of the Investigating Officer on the case diary from paras 1 to 49 which was marked Ext.5. The Investigating Officer was not examined by prosecution. 4. P.Ws.5 Prabhawati Devi, P.W.8 Parmalal Prasad and P.W.9 Ram Shankar Prasad are the eye-witnesses to the occurrence and they are also stated to have received injury at the hands of the appellants during the occurrence. 5. P.W.11 Babu Nand Yadav was a witness who proved the injury reports relating to the deceased and the other three injured which was marked Exts.3, 3/1, 3/2 and 3/3. P.W.13 Shri Bhagwan Singh was also a formal witness who proved the writings and signature on the post-mortem report which is marked as Ext.4. 6. P.W.12 doctor Jai Prakash Prasad had examined the 4 injuries on the injured Parmanand Bhagat, Prabhawati Devi, Ram Shankar and also the deceased Indradeo Bhagat when they had been brought at the Primary Health Center, Barharia for treatment. P.W.14 doctor Uma Shankar Pandey is the doctor who had conducted post- mortem on the dead body of the deceased Inderadevo Bhagat on 22.5.1994 at Sadar Hospital, Siwan where the deceased had died in course of further treatment. 7. As to the injuries on injured including the deceased when they had gone to treatment at P.H.C., Barharia, the doctor Jai Prakash Prasad, P.W.12 deposed that he examined Parmanand Bhagat (P.W.8) on 20.5.1994 at 10.25 A.M.and had found the following injuries on him. (i) Swelling around upper part of left fore arm. (ii) Swelling around lower third part of the left fore arm. (iii) Swelling size of 2”x1” over the middle part of right fore arm. (iv) Swelling over left parietal region of his skull size 2”x2”. (v) Complain of pain over whole of the body. All the injuries were simple in nature and caused by hard blunt substance may be lathi, danda or bricks. 8. The doctor also examined Smt. Prabhawati Devi (P.W.5) on the same day at 10.35 A.M. and found the following injuries on her. (i) Defused swelling size 2 and ½”x2” on the back in right side. (ii) Lacerated wound size 2”x1/2”x1/4” between index and thumb of right hand. (iii) Defused swelling 2”x 2” over left side of 5 forehead. All the injuries were simple in nature and caused by hard blunt substance. 9. The injured Rama Shankar Prasad (P.W.9) was examined by the doctor on the same day at 10.45 A.M. and the following injuries were found to him; (i) Lacerated wound ½”x1/4”x skin deep over posterior surface of roof of left index finger. (ii) Defused swelling over posterior surface of left palm size 2”x1 and 1/2”. (iii) Defused swelling 2 and ½”x2” over left parietal region of the skull. All the injuries were simple in nature and caused by hard blunt substance. 10. This doctor witness had also examined the injuries on the deceased Indradeo Bhagat on the same day at 10.15 A.M. and had found the following injuries; (i) Bleeding from both Nostrils and mouth. (ii) Defused swelling 3”x3” over left parietal region of the skull. (iii) Defused swelling around the left eye. (iv) Swelling around left wrist. The doctor opined at that time that the injuries were simple in nature and caused by hard blunt substance such as lathi but he also mentioned the patient was very serious and he was suspected of head injury. 11. This doctor witness further stated that the police had sent requisition for injury report. He also proved the four injuries 6 report which were respectively marked Ext.3 to 3/3.which he stated to be in his writing and signature during cross-examination. 12. The doctor has suggested that the injuries on the deceased Indradeo Bhagat may be possible from fall from a wooden staircase when the height is more. But it has to be considered here that prosecution story and the prosecution evidence is not of fall from a ladder or staircase but the injuries having been caused on the roof when the deceased father had gone to the roof to intervene and calm down the quarrel between the two sons, the informant and the appellant Jit Narayan Prasad. 13. P.W.14, Dr. Uma Shankar Pandey, who conducted the post-mortem on the dead body, deposed that he had conducted the post-mortem on 22.5.1995 at 11.10 A.M. and he had found the following ante-mortem injuries on the deceased Indradeo Bhagat. (i) On external examination one defused swelling 5”x4” over left shoulder joint. In the centre of the swelling there was echymosis 4”x1/2”. There was one defused swelling 8”x4” on the left side of the face. (ii) On opening the swelling over the left shoulder joint there was clotted blood beneath the swelling. Subcutaneous tissues were also found congested. (iii) On opening the scalp, there was blood clot beneath the swelling. Parietal bone left was depressed and was fractured into several pieces. 7 (iv) On opening the skull, brain matter was found congested, blood clot and haemotysed blood was also found in the cranial cavity. (v) On opening the chest cavity, left side heart was found empty. There was small amount of blood on the right side. (vi) On opening the abdominal cavity there was partially digested food in the stomach. Urinary bladder was empty. (vii) Time elapsed since the death was within 24 hours. Cause of death was the shock and hemorrhage produced by head injury. The injuries were caused by hard blunt substance such as lathi. In ordinary course of nature, the injuries caused were sufficient to cause death. The doctor proved the post-mortem examination in his writing and signature and it was marked Ext.4. 14. There are three eye-witnesses namely, the P.Ws.5, 8 and 9. The P.W.8 Parmalal Prasad is the informant as well as injured who received injury during the occurrence. He deposed that in the morning on the day of occurrence when he had gone over the roof of his house for keeping cow dung cakes there, his brother Jit Narayan Prasad (appellant) prohibited him from keeping it there stating that roof belonged to him and therefore, he will not permit him to keep it there. When he (informant) insisted, the appellant Jit Narayan Prasad pushed him away and he also assaulted him with fists, slaps and lathi. He stated to have been assaulted on his head, waist left hand and finger. He further deposed that he received fracture injury on his left wrist but any fracture was not proved by medical evidence and the doctor found only 8 swelling on different parts of the body which was simple in nature and caused by hard blunt substance. The informant further deposed that when he cried after assault on him, his father Indradeo Bhagat, the deceased came to the roof for rescuing him but he (deceased) was also assaulted by the appellant Jit Naryan Prasad by lathi on the left temporal side on head as a result of which he fell down on receiving injury and became unconscious. The informant also deposed that when his wife Prabhawati Devi (P.W.5) and son Rama Shankar Prasad (P.W.9) came to save him they were also assaulted by the appellants after closing door from inside. The further evidence of the informant was that that after assault, villagers assembled and they called Chowkidar who informed the concerned police station about the occurrence. He further deposed that police came from the police station and all the injured were taken to hospital on tire cart and that his fard-beyan was recorded by police in the hospital. He stated that after assault his father (deceased) remained unconscious all through and he died on 21.5.1004 at 4”00 P.M. in the hospital. There is nothing materials in his cross-examination to discredit his testimony on any point. 15. P.W.5 Prabhawati Devi, the wife of the informant deposed that when the appellant Jit Narayan Prasad had pushed and assaulted her husband with lathi, he had cried and then her father-in-law Indradeo Bhagat (deceased) had gone to intervene and calm down the quarrel, the appellant Jit Narayan Prasad gave a lathi blow on the head of her father-in-law (deceased) as a result of which, the deceased fell down and became unconscious after receiving injury on head. She 9 further deposed that when her son Rama Shankar Prasad (P.W.9) went to save his father, the appellants Jit Narayan Prasad and Ramashray Prasad assaulted them with lathi. She also deposed that all the injured including the deceased were taken to hospital for treatment but the deceased died on the next day in course of the treatment. At para-8 of her cross-examination she has stated that when she had gone on the roof, her husband (informant) was found fallen with injury and her father-in-law (deceased) was also lying there and the assault was still continuing at that time. With respect to this evidence, the learned counsel for the appellants argued that this witness is not a witness on the point of assault on the informant and the deceased and that she had gone on the roof after the assault was over. But his does not appear to be the situation as argued by the learned counsel for the appellant. It appears from her evidence that she went over the roof immediately after the assault on the informant and the deceased and she says that the assault was still continuing at that time. It shows that this witness had gone over the roof immediately after beginning of the assault and she has seen the occurrence. 16. P.W.9 Rama Shankar Prasad, the informant’s son deposed that on the dispute relating to keeping cow dung on the roof of his house, the appellant Jit Naryan Prasad had assaulted his father (informant) with fists, slaps and lathi and that hearing noise when his grand-father Indradeo Bhagat went over the roof, the appellant Jit Narayn Prasad assaulted with lathi on his (deceased’s) head as a result of which he (deceased) fell down and became unconscious after 10 receiving injury. He also deposed that when he and his mother (P.W.5) had gone over the roof to save the informant and deceased, the appellants Jit Narayn Prasad and Ramashray Prasad both assaulted them with lathi and he saw that the informant and the deceased who were lying there with injuries. 17. The P.Ws. 5, 8 and 9 were the most natural and probable witnesses of the occurrence have testified about the occurrence in a natural and convincing manner and they appear to be reliable witnesses. The learned counsel for the appellant submits that any neighbour or co-villager has not been examined by the informant to support the story of assault. It appears from the prosecution story itself as disclosed in the fard-beyan that after the assault on the informant and the deceased at the hands of the appellant Jit Narayan Prasad, the another appellant Ramashray Prasad was called by the wife of appellant Jit Narayan Prasad and that thereafter the appellant Ramashray Prasad had closed the door of the house from inside and then both the appellants had given further assault to the informant and the deceased. In such a situation, when the door of the house was bolted from inside during the occurrence, it is not expected that anybody else would go over the roof and see the occurrence. Therefore, non-examination of any villagers or neighbours does not affect the prosecution case in any adverse inference. Moreover, the evidence of all the three eye- witnesses examined by prosecution is reliable and trustworthy and they go to prove the prosecution case. 18. The appellant Jit Narayan Prasad has been 11 convicted under Section 304/34, 342, and 323 of the Indian Penal Code. It has been proved by prosecution evidence that when the deceased Inderadeo Bhagat who was father of the two appellants had gone to intervene and calm down the dispute between the appellant and the informant, the appellant had assaulted him (deceased) on his head with lathi. It is also the case of prosecution that after arrival of Ramashray Prasad, the door of the house was closed from inside and then further assaults were caused on the informant, deceased and the wife and the son of the informant. Thus, the assaults were given to the injured and the deceased while confining them inside the house by closing door from inside. The doctor has found several injuries as mentioned in detail in the doctor’s evidence on the person of the informant, his wife and son and the injuries were simple in nature and caused by hard blunt substance, may be lathi. The doctor who held post-mortem examination mentioned about the head injury on the skull as parietal bone left was depressed and was fractured into several pieces and on opening the skull brain matter was found congested, blood clot and haemotysed blood was also found in the cranial cavity. This injury was opined to have been caused by hard blunt substance such as lathi and it was the cause of death. Thus, the prosecution has been able to prove that in course of dispute between the informant and appellant, appellant Jit Narayan Prasad gave a lathi blow on head of deceased which caused the death of the deceased. Thus when the assault and the causing injury on the informant, his wife and son as well as the deceased have been proved by prosecution in the aforesaid manner this has to be considered which 12 offence the appellant Jit Narayan Prasad has committed. For the causing of the injuries on the informant, his wife and son and in a condition when the door of the house was closed from inside the offence punishable under Section 342 and 323 of the Indian Penal Code is proved. So far the assault on the head of the deceased at the hands of the appellant Jit Narayan Prasad is concerned, it is clear from the circumstance of the case that assault was given at the time when the deceased, who was father of the informant and the appellant Jit Narayan Prasad both, had gone to intervene and calm down the situation. Thus, the deceased himself had no quarrel with either informant or appellant Jit Narayan Prasad. He had simply gone to intervene and mediate into the dispute. There is no evidence that the assault at the hands of the appellant Jit Narayan Prasad was caused to the deceased with any motive or intention to cause any injury which is sufficient to cause death. In the facts and circumstances of the case, it appears that the assault on the head of the deceased as was given by means of lathi at the hands of the appellant Jit Narayn Prasad, who was the son of the deceased, was caused in hit of moment without any premeditation to cause any injury with any motive or intention to cause injury which was sufficient to cause death. But it gathers from the circumstance of the case that by causing a lathi blow on the head of the deceased with an impact which resulted into fracture of the skull bone, the appellant Jit Narayn Prasad had knowledge that the injury which he was causing may cause death. Therefore, the appellant Jit Narayan Prasad is found to have committed an offence punishable under Section 304 part-II of the 13 Indian Penal Code. Thus, the appellant Jit Narayan Prasad is held guilty for conviction under Sections 304 part-II, 342 and 323 of the Indian Penal Code. 19. So far the appellant Ramshray is concerned, it is the prosecution case at the very outset as stated in the fard-beyan that initially when the informant went over the roof for keeping cow dung cakes there, he was prohibited in keeping it by the appellant Jit Narayan Prasad and a quarrel ensued which resulted into assault on informant by means of lathi at the hands of appellant Jit Narayan Prasad and that when hearing noise, deceased Indradeo Bhagat, who was the father of the informant and Jit Narayan Prasad both went over the roof to intervene and calm down the situation but in course of that intervention, the appellant Jit Narayan Prasad gave a lathi blow on the head of the deceased. Then, it was further prosecution case that the wife of appellant Jit Narayan Prasad went and called the other appellant Ramashray Prasad there and thereafter, both the appellants assaulted the informant, his wife and son and also the deceased by closing door from inside. There is no evidence that the appellant Ramashray Prasad was present there when the appellant Jit Narayan Prasad had given a lathi blow on the head of the deceased. Thus the appellant Ramshray has come to the roof after assault on the head of the deceased at the hands of the appellant Jit Narayan Prasad had already been caused. There is no evidence that the appellant Ramashray Prasad had participated in any manner with regard to assault on the head of the deceased which was the cause of his death. No doubt, there is evidence that after assaulted 14 on the head of the deceased, the appellant Ramashray Prasad was called and after going to the P.O. he assaulted the informant, his wife and son and also gave some injuries to the deceased which all were simple in nature. Thus there is nothing to hold the appellant Ramashray Prasad guilty of offence for causing fatal head injury to the deceased which was the cause of his death. Thus, appellant Ramashray Prasad is found not guilty for the offence punishable under Sections 304 of the Indian penal Code and therefore, he is acquitted of this charge. However, in the facts and circumstances of the case, sufficient evidence is found to hold the appellant Ram ashray Prasad guilty for the offence punishable under Section 342 and 323 of the Indian Penal Code, therefore, his conviction under Section 342 and 323 of the Indian Penal code is sustained. 20. So far the quantum of sentence is concerned, the appellant Jit Narayan Prasad has been held guilty for the offence punishable under Section 304 part-II of the Indian Penal Code. The learned counsel for the appellant submitted that the deceased was the father of this appellant and assault by means of lathi on head of the deceased was caused in hit of moment without any premeditation. It was also submitted that the deceased was father of this appellant and that no son will ever like to cause any injury to his father with any intention to kill simply for reason that the father has intervened into a quarrel between the two sons. It was also submitted that this appellant has suffered a repentation and remorse due to death of his father as a result of sudden blow caused by him in a hit of moment. The learned counsel also submitted that the appellant Jit Narayan Prasad had 15 remained in custody during trial from 22.5.1994 to 8.9.1994 i.e. for three months and 16 days and thereafter, he is continuously in custody since the trial court’s judgment i.e. 7.2.2005 and thus he is in custody for 5 years 8 months and 22 days after the trial court’s judgment. The learned counsel pointed out that the appellant Jit Narayan Prasad has remained in custody for a period of six years. Considering the facts and circumstances of the case, I feel that a sentence of R.I. for six years will meet the ends of justice and therefore, the sentence as awarded by the trial court is reduced to a sentence of R.I. for six years only. The appellant Jit Narayan Prasad is further held guilty for the offence punishable under Sections 342 and 323 of the Indian Penal Code and the sentence as passed by the learned trial court under these two counts is sustained. The sentence to appellant Ramashray Prasad under Section 323 and 342 I.P.C. as awarded by the trial court is just and proper hence the same is also sustained. 20. All the sentences will run concurrently. 21. Thus both the appeals are dismissed with the modification in conviction and sentence as indicated above. 22. The fees of Mr. Ranbir Singh, Amicus Curiae who argued the appeal No.147 of 2005