DEATH REFERANC No.14 OF 2007 --- Against the judgment and order dated 6.10.2007,passed by Additional Sessions Judge, Fast Track Court No.IV, Muzaffarpur in Sessions Trial No. 247 of 2006. STATE OF BIHAR----------------------(Appellant) Versus RAM CHANDRA RAUT son of Late Julum Raut, resident of Village Harishankar maniyari P.S.Maniyari, District Muzaffarpur----- (Respondents) CR. APP (DB) No.1370 of 2007 RAM CHANDRA RAUT------------------(Appellant) Versus STATE OF BIHAR-----------------(Respondents) P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM Mridula Mishra & By judgment and order dated 6.10.2007 passed by Shri Shivendra S.M.M.Alam, JJ. Narain Singh, Additional Sessions Judge, Fast Track Court no.IV, Muzaffarpur in Sessions Trial no.247 of 2006 the sole appellant Ram Chandra Raut has been convicted under Sections 302 and 323 of the Indian Penal Code. For conviction under Section 302 of the Indian Penal Code, the appellant has been awarded death sentence and fine of Rs.20,000/-. No separate sentence has ben awarded for conviction under Section 323 of the Indian Penal Code. Death Reference case no.14 of 2007 is for confirmation of death sentence awarded to the appellant by the trial court. Cr.Appeal no.1370 of 2007 has been filed by appellant Ramchandra Raut for setting aside the judgment of conviction and sentence awarded to him in Sessions Trial no.247 of 2006. 2. Puspa Kumari is the informant of Maniyari P.S.Case no. 109 of 2005. The informant is the niece of appellant Ram Chandra Raut. The case of prosecution as disclosed in the F.I.R. is that on 9.11.2005 at about 6 P.M. Ram Chandra Raut - 2 - came near his father Julum Rai and entered into altercation regarding the release of land mortgaged by him at the time of marriage of his daughter. The altercation took a serious turn as the deceased Julum Rai said that he will transfer the remaining land to his other sons. The uncle of the informant (present appellant) on this took out Khukhari and started cutting both the legs of the grand father of the informant. The informant came there to rescue her grand father but she was also assaulted by the appellant with Khukhari and bleeding injury was caused to her left palm. Her mother and grand mother also came there to rescue her grand father but they were also assaulted and received injury. Her grand father thereafter died because of heavy bleeding due to injury caused to him. After death of her grand father her uncle i.e. appellant ran away from there. It has been stated by the informant that the occurrence took place because of land dispute. 2.On the basis of the Fard Beyan of the informant recorded by Sub Inspector of police Amrendra Kumar Jha Officer-in-charge of Maniyari P.S., Maniyari P.S.Case no.109 of 2005 was instituted at 8.15 P.M. on 9.11.2005. The case was investigated by him and finally charge sheet was submitted under Sections 302,307 and 324 of the Indian Penal Code. Cognizance was taken for the offence and the case was committed to the court of sessions for trial. 3. The defence of the accused/appellant was of false implication at the instance of Pushpa Kumari and Jaimala devi, who are daughter and wife of his younger brother Ganga, for the landed property. 4. Prosecution examined altogether 6 witnesses to prove the charges framed against the accused P.W.1. Jaimala Devi is mother of informant and wife of Ganga Raut younger brother of accused appellant. P.W.2 is Puspa Kumari, the informant who is niece of appellant and daughter of P.W.1. P.W.3 is Dr, Sohan Prasad Chowdhary, Professor and Head of the Department of Medicine, - 3 - S.K.Memorial Hospital, Muzaffarpur who conducted post-mortem on the dead body of the deceased and submitted post-mortem report. P.W.4 is Mukesh Kumar who is neighbour of the deceased as well as the accused appellant. He is the inquest report witness and has proved the inquest report. P.W.5 is the Investigating Officer, who had recorded the fard beyan of the informant and also investigated the case as well as submitted charge sheet. P.W.6 Ratnesh Rai is a formal witness who has proved the injury report of the injured witnesses and also the accused appellant. The injury reports have been marked as Ext. 7 7/1, 7/2 and 7/3. 5. P.W.1 in her evidence has stated that she was cleaning utensils inside the house when her daughter P.W.2 came and informed that her uncle has some altercation with grand father. P.W.1 came out of the house and saw the appellant Ram Chandra Raut having Khukhari in his hand. He assaulted his father due to which he immediately died. She herself, her daughter and her mother-in-law went to rescue the deceased but they were also assaulted. She has further stated in her deposition that the occurrence took place because of land dispute. As per the evidence of P.W.1 she has witnessed the occurrence. However, in paragraph 10 of her cross examination she has stated that she reached at the place of occurrence after 10-15 minutes of the occurrence. 6. P.W.2 is the informant. She is consistent in her deposition that she witnessed the occurrence . She has stated that her uncle assaulted her grand father and cut both his legs due to which he died. From her evidence there is nothing which can be considered either inconsistent to the prosecution case or her presence not possible at the place of occurrence. She is a natural and trustworthy witness. - 4 - 7. Dr. Sonhan Prasad Choudhary P.W.3 has proved the post-mortem report and there is no cross examination by the defence on any point to show that the injuries which were found on the person of the deceased were caused by any other weapon or the injuries were not sufficient to cause death or because of the delay in treatement of the deceased he died. 8. P.W.4 Mukesh Kumar is the inquest report witness and he has stated that though he has not witnessed the occurrence but when he reached at the place of occurrence he came to know that the accused appellant has committed this offence. 9. P.W.5 Amrendra Kumar Jha is the Investigating Officer. He has stated that he was posted as Officer-in-charge of Maniyari police station on 9.11.2005. He came at the place of occurrence and recorded fard beyan of the informant and prepared inquest report, sent the dead body for post-mortem and the injured persons for examination of their injuries. At the place of occurrence he found sufficient blood fallen. The place of occurrence as per the evidence of P.W.5 is the same as deposed by P.W.1 and P.W.2. P.W.5 has stated that on the date of occurrence he himself arrested the accused from a temple adjacent to N.H. 28. Accused was taken into custody and sent for treatment of his injury. P.W.5 has not been cross examined by the defence on the point that the deposition of P.W.1 and 2 in court is contrary to their statement recorded under Section 161 Cr.P.C. during investigation. 10. P.W.6 Ratnesh Rai has proved the injury reports Exts. 7 to 7/3.. 11. The defence has also examined two witnesses who are Ram Kali Devi (D.W.1) wife of the appellant Ram Chandra Raut and Banarasi Devi (D.W.2) mother of Ramchandra Raut and wife of deceased Julum Rai. D.W.2 though a charge sheet witness has been examined by the defence as D.W.2. D.W.1 has - 5 - stated that the daughter and wife of Ganga along with three persons have assaulted her father-in-law. Both the legs of her father-in-law was cut and he died due to assault made by them. In her cross examination she has denied that she had made contrary statement before the I.O. D.W.2 who is mother of appellant and wife of deceased is not specific that who killed her husband. She has simply stated that her husband had some altercation with Ganga who is another son of D.W.2 but she is not specific that Ganga has killed her husband and not Ram Chandra. Her statement is quite vague and not specific on the point of assault. 12. Counsel for the appellant has assailed the judgment of conviction on the ground that the prosecution has not been able to prove that the injuries which were found on the person of the deceased were caused by the weapon which has been mentioned in F.I.R. and referred by prosecution witnesses in their deposition. There is no recovery of the weapon as such it cannot be said that the injuries which were found on the person of the deceased were caused by same weapon which is alleged to have been in possession of the appellant at the time of occurrence. What we find that the ground which has been taken by the appellant’s counsel in his submission was not raised before the trial court and there is no such cross examination of witnesses on this point. Further it has been submitted by the counsel for the appellant that for conviction under Section 323 of the Indian Penala Code there is no evidence on record. Prosecution evidence regarding assault made by Khukhri, a sharp cutting weapon has not been corroborated by the injury report of the injured persons. As per the deposition of the witnesses they were assaulted with Khukhari which is a sharp cutting weapon, but the injury report shows that the injuries were caused by hard and blunt substance as such conviction under Section 323 cannot sustain. Another point - 6 - which has been raised relates to genesis of the occurrence. It has been stated that the occurrence took place because of altercation on the point of release of land mortgaged at the time of marriage of the daughter of the accused appellant. No document has been produced by the prosecution to corroborate such allegation and to show that any such land was mortgaged for which altercation took place in between the appellant and his father which finally resulted into murder of the deceased. So far the genesis of the occurrence is concerned there is no evidence on record to show that prosecution witnesses were either cross examined or given suggestion that genesis of occurrence is non existent, and the occurrence took place for some other reason in some other manner. Further submission of the counsel for the appellant is that the case of prosecution regarding fleeing away of appellant from the place of occurrence to make out circumstances regarding involvement of appellant in the occurrence is false and concocted. The evidence of I.O. and the injury report show that appellant was sent for medical examination of his injuries along with other injured persons. In case the appellant would have fled away from the place of occurrence it was not at all possible. There is no substance in the submission of the counsel for the appellant. The injury report of other injured witnesses i.e. Ext.7, 7/1, and 7/2 indicate that those injured were sent for medical examination at 9 P.M. but Ext. 7/3, i.e. injury report of appellant show that he was examined by the doctor at 11.30. In the deposition of I.O. P.W.5 it has also come accused was arrested by him in the night and thereafter sent to judicial custody. The appellant was not sent for his medical examination along with other injured persons, as such this ground of the appellant to prove his innocence is failed. 13. Counsel for the appellant has further submitted that the defence of the appellant is that it was Ganga, his younger brother who has committed the - 7 - offence. Ganga assaulted his father due to which he died but daughter and wife of Ganga has falsely implicated him in this case. This specific defence of the appellant was not taken by him at the initial stage. If it was a case of false implication, , the accused appellant should have filed a police case against the real assailant. He could have filed a , complaint case or would have made such statement before the Magistrate on production. The appellant even in his statement recorded before the trial court under section 113 Cr.P.C. has not stated that Ganga, his younger brother is the real assailant and he has falsely been implicated. At this belated stage, the defence taken by the appellant cannot be considered for disbelieving the evidence of prosecution. 14. Mr. Lala Kailash Bihari counsel appearing for the State has submitted that it is a fact that the prosecution has examined only two witnesses to prove its case but these two witnesses are injured witnesses. They are most natural witnesses as it has come in the evidence of P.W.1 that the deceased, appellant and witnesses reside in the same house. There presence at the time of occurrence and place of occurrence is most natural and it cannot be disbelieved on any ground. P.W.1 and P.W.2 are consistent in their evidence and there is nothing to show that the prosecution case is either false or concocted. There is no reason for false implication of accused appellant as P.W.2 in her evidence has stated that there has been partition of landed properties among the sons of Julum Rai in 1993 itself. 15. Counsel for the appellant has made alternative argument that even if the case of prosecution is presumed to be correct, the present case do not fall into the category under Section 302 of the Indian Penal Code and the appellant cannot be convicted for commission of offence under Section 302 of the - 8 - Indian Penal Code. The occurrence , as per the prosecution evidence took place due to altercation in between accused appellant and his father. P.W.1 and 2 are very much specific on this point that some altercation took place in between the appellant as well as the deceased relating to release of the mortgaged of the land. This altercation finally resulted into cutting of the legs by the appellant in hit of passion. There was no pre meditation before committing the offence. It happened due to sudden provocation only and there was no intention to kill. In case there would have been any intention to kill, injuries would have been caused on the vital part of the body. In the present case injuries were caused on the legs below knee which is not vital organ considering these circumstance it comes within the exception (1) of Section 300 of the Indian Penal Code, as such a case of culpable homicide which is not murder as the offender committed offence due to deprivation of the power of self-control on account of grave and sudden provocation. 16. Considering the evidence, even if is said that the repeated assault by sharp cutting weapon is sufficient proof of this fact that offender had knowledge that such assault may cause death, in absence of intention to kill, the offence will come within the purview of Section 304 Part II. 17. On consideration of the evidence , submission made by appellant’s counsel is not found to be convincing. Evidence show that there was no provocation to the accused appellant by his father who was an elderly person aged about 70 years. He was sitting quietly at his residence when appellant himself entered into altercation. There is nothing to show that there was any provocation from the side of the deceased. Since provocation is missing We do not find that the present case falls within exception 1 of Section 300 of the Indian Penal Code. The submission of the counsel for the appellant that there - 9 - was no intention to kill is not substantiated from evidence. Intention is reflected from the repeated assault made by appellant on his old father who died due to cutting of his both legs. Because of such injury and excess bleeding he died immediately. Under the circumstances the present case cannot be put under exception (1) of Section 300 of the Indian Penal Code and submission made by the counsel that at best conviction could have been under Section 304 Part II is not sustainable. 18. Another limb of argument of appellants counsel is that considering the evidence on record it is quite obvious that the present case do not fall into the category of rarest of rare cases in which appellant could have been awarded death sentence for the offence committed by him. The trial court completely over looked the statutory requirement that it has to assign reason for putting the case into the category of the rarest of rare case before awarding death sentence. It has also been submitted by the counsel that the Apex Court in its different decisions has held and cautioned the criminal courts that before awarding maximum punishment there must be intensive and exhaustive enquiry into accused related parameters. Normal punishment for offence under Section 302 of the Indian Penal Code is life imprisonment and only in exceptional cases death sentence can be awarded. Unless there exists an extra ordinary situation, which brings the case within the purview of ‘rarest of rare’ cases, death sentence should not be awarded. The evidence on record in the present case, do not reflect that the occurrence took place in a planned manner for any advantage. The evidence on record shows that the occurrence took place, on account of some altercation in between the father and the son. The appellant lost his control and out of anger he committed crime by cutting both the legs of his father. The trial court while awarding maximum punishment, - 10 - has not assigned any reason for considering it a case of rarest of rare case. There should have been detailed reasons setting out clearly that no other punishment other than maximum punishment would suffice. The statutory and age old rule of sentencing has completely been ignored, while awarding death punishment, as such the death sentence is answered in negative, it is not affirmed. 19. However, the evidence on record is sufficient to show that the appellant has committed murder of his father. Prosecution has been able to prove charge framed under Section 302 and 323 of the Indian Penal Code. The conviction of the appellant under Section 302 and 323 of the Indian Penal Code is affirmed. Death Sentence is modified and commuted into life sentence with fine of Rs.20,000/-. 20. The appeal preferred by the appellant is dismissed. (Mridula Mishra, J) (Syed Md. Mahfooz Alam,J) Patna High Court The 11th November,2008 N.A.F.R./sss/-