IN THE HIGH COURT OF JUDICATURE AT PATNA (Against the judgment of conviction dated 23.08.2011 and order of sentence, dated 26.08.2011, passed by Shri Bashishtha Prasad Singh, learned Additional Sessions Judge, Fast Track Court No.-IV, Siwan in Sessions Trial No. 14 of 1994, arising out of Marhaura P.S. case no. 82 of 1993) Criminal Appeal (DB) No.911 of 2011 Arising Out of PS. Case No. -0 Year- null Thana -null District- SARAN =========================================================== 1. Satya Narain Rai, son of late RamChandra Rai 2. Lal Babu Rai, son of late Ram Chandra Rai 3. Raghu Nath Rai, son of late Ram Chandra Rai All residents of village- Lal Tola Khalispur, P.S.- Marhawrah, District- Saran. .... .... Appellants Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant/s : Mr. Radha Mohan Singh, Advocate : Mr. Satya Prakash, Advocate For the Respondent/s : Mr. A.K. Sinha, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH And HONOURABLE MR. JUSTICE SANJAY KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH) Date: 22-12-2016 The instant appeal is filed against the judgment of conviction, dated 23.08.2011 and order of sentence dated, 26.08.2011, passed by learned Additional Sessions Judge, Fast Track Court No.IV, Chapra in Sessions Trial No. 14 of 1994, arising out of Marhaura P.S. Case No. 82 of 1993, whereby and whereunder the learned trial court convicted all the three appellants under Sections 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life. 2. The prosecution case in short, as setout in the Patna High Court CR. APP (DB) No.911 of 2011 dt.22-12-2016 2/10 Fardbeyan of Dilip Kumar Yadav, son of Vishwanath Prasad Yadav (deceased) resident of Village Khalispur, Lala Tola, P.S.- Marhaura, District- Saran recorded on 20.05.1993 at 8.00 P.M. in Emergency Ward of Sadar Hospital, is as follows: The informant stated that as soon as he returned from Gaura Bazar at 3.30 P.M., he saw his uncle Raghunath Rai, Satya Narayan Rai and Lal Babu Rai dragging his father from his door to their house. There was land dispute with the uncles from before. All the three accused persons were assaulting him with Lathi and sticks. When the informant tried to save his father, Lal Babu Rai caught his hand. In the meantime, Satya Narayan Rai went to his house and came with a sword and struck his father. The informant sustained injury on his palm, while trying to avert the blow. The informant’s father fell instantly and blood started oozing from his intestine. The accused persons also threw brick bats at Kusum Devi, sister of the informant. On seeing the serious condition of his father, he was taken on a jeep to Sadar Hospital, Chhapra with the help of Manager Rai, Ganesh Rai and Munshi Rai. The occurrence has been witnessed by the aforesaid villagers and others. 3. On the basis of the fardbeyan of the informant, Marhaura P.S. Case No. 82 of 1993 was registered under Sections 302/34 of the Indian Penal Code. 4. The police after investigation, submitted charge-sheet Patna High Court CR. APP (DB) No.911 of 2011 dt.22-12-2016 3/10 under Sections 302/34 of the Indian Penal Code against the accused persons, whereafter cognizance was taken and the case was committed to the Court of Sessions. The trial court framed charges under Sections 323, 324 and 302/34 of the Indian Penal Code to which the accused pleaded not guilty and claimed to be tried. 5. The prosecution in support of its case examined as many as 10 witnesses, namely, Munshi Rai (P.W.1); Ganesh Rai (P.W.2); Manager Rai (P.W.3); Dilip Prasad Yadav (P.W.4); Dr. Shaligram Vishwakarma (P.W.5); Birbal Rai (P.W.6); Krishna Goshwami (P.W.7); Mohan Singh (P.W.8); Rama Kant Ram (P.W.9); and Kushum Kumari (P.W.10). Out of these 10 witnesses, P.W.1 Munshi Rai, P.W.2 Ganesh Rai, P.W.3 Manager Rai, P.W. 4 Dilip Prasad Yadav (informant) and P.W.10 Kushum Kumari have claimed to be the eye witnesses of the occurrence. P.W.5 Dr. Shaligram Vishwakarma conducted post-mortem on the dead body of Vishwanath Prasad Yadav, the father of the informant and also prepared injury report of Dilip Kumar Yadav and Kusum Kumari, P.W. 7 Krishna Goshwami and P.W.8 Mohan Singh are formal witnesses, whereas P.W. Rama Kant Rai is the investigating officer of the case. The prosecution, besides the oral evidence, adduced documentary evidence including Fardbeyan, injury report of Kusum Kumari, injury report of informant and post-mort report etc. 6. The defence did not examine any oral evidence nor Patna High Court CR. APP (DB) No.911 of 2011 dt.22-12-2016 4/10 produced any documentary evidence in support of their case. 7. On consideration of materials on record, the learned trial court convicted all the three appellants and sentenced as noticed in the earlier paragraphs of the judgment. 8. Assailing the impugned judgment, learned counsel for the appellants submits that the prosecution has not been able to establish the time of occurrence beyond all reasonable doubt, in so much so, that the informant in his fardbeyan stated that the occurrence took place at 3.30 P.M., whereas in para 1 of the evidence he stated that the occurrence took place at 1-1.30 P.M. He submits that the same witness in para7 stated that the occurrence took place between 1.30 – 2.00 P.M. Besides this, the time of occurrence given by P.W.1, P.W.2, P.W.3 and P.W.10 also differs. For instance P.W.1 stated that occurrence took place at 3.30 P.M., P.W.2 stated that the occurrence took place at 1.00 P.M., P.W.3 stated that the occurrence took place between 1.00 – 2.00 P.M. and P.W.10 stated that occurrence took place at 2.00 P.M. He next submits that there were brick batting from both sides, however, the investigating officer (P.W.9) did not find any sign of brick batting from the defence side, as no brick, stones or any other incriminating materials was found in front of the house of the informant to suggest that there was brick batting from the defence side. He further submits that the investigating officer found some blood stains on the boundary wall of the appellants, but did not send Patna High Court CR. APP (DB) No.911 of 2011 dt.22-12-2016 5/10 the same to Forensic Science Laboratory in order to establish that it was the human blood or that of an animal. He submits that the informant is not the eye witness of the occurrence. In support of his submission, learned counsel has referred to para 3 of P.W.1 and submits that the informant was not present at the place of occurrence at the relevant time. Furthermore, P.W.2 stated that he along with P.W.1, P.W.3 and one Tribhuvan Rai brought the deceased to the hospital, which also shows that the informant was not present at the place of occurrence. Besides this, learned counsel for the appellants submits that the weapon used in the commission of murder was not found. He lastly submits that in any view of the matter, it was the prosecution side, which was an aggressor and the occurrence took place in the heat of moment, on account of brick batting made by the prosecution side, because of the land dispute. 9. On the other hand, counsel for the State submits that there is minor discrepancies in the statement of informant with respect to time of occurrence, as most of the eye witnesses stated that the occurrence took place between 1.00 to 2.00 P.M. It is not the defence case that the informant was wearing watch at the relevant time. So the trifle error in gauzing the time would not be of much consequence. He next submits that there is a land dispute because of which the accused persons committed the murder of the deceased. 10. We have heard the counsel for the parties and Patna High Court CR. APP (DB) No.911 of 2011 dt.22-12-2016 6/10 perused the materials on record. We find that the informant (P.W.4) has fully reiterated the prosecution case in his evidence as well. In his evidence, the informant stated that when he returned from Gaura Bazar around 1.00-1.30 P.M., he saw the appellants dragging his father (deceased) towards their house. When the informant tried to intervene, Lal Babu Rai caught his hand. In the meantime, Satya Narayan Rai went to his own house and returned with a sword, which he pierced in his father’s belly, on account of which he died in the hospital. He stated that occurrence took place on account of land dispute. He also stated that in process of warding off the sword blow, he too sustained injury on his palm. The doctor has also found cut injury on the palm of the informant. P.W.1, P.W.2 and P.W.3, who are neighbours have supported the prosecution case in their evidence. P.W.10, who is the daughter of the deceased and sister of the informant, has also supported the prosecution case in its entirety. She stated that while she tried to save her father, she was also assaulted. She further stated that her father was dragged to the courtyard after crossing the boundary wall, which was raised up to a knee height. The doctor has also confirmed the injury on the person of the daughter of the deceased in his evidence. The investigating officer (P.W. 9) also stated that he found blood on the boundary wall leading to courtyard of Satya Narayan Rai. 11. On closer scrutiny of the evidence of the witnesses, Patna High Court CR. APP (DB) No.911 of 2011 dt.22-12-2016 7/10 we do not find much merit in the submission of the appellants that the prosecution has not been able to establish the place of occurrence. All the witnesses stated that the accused persons (appellants) dragged the informant’s father from his house towards their house. P.W. 4 stated that they even dragged his father inside the courtyard after crossing the boundary wall of their house, which was up to a knee height. All the witnesses, and, even the investigating officer has also found the blood on the boundary wall, as such we find that the prosecution has been able to establish the place of occurrence, which is courtyard of Satya Narayan Rai. 12. The other submission of the appellants that the prosecution has not been able to establish the time of occurrence is also without merit, as most of the witnesses stated that the occurrence took place about 1.00-200 P.M. A minor deviation in the statement of the informant in the fardbeyan that the occurrence took place at 3.00- 3.30 P.M. is of no avail to the defence, as there is no submission that the informant was wearing watch at the relevant time. Furthermore, the informant in his evidence stated that the occurrence took place at around 1.00 P.M., as such the prosecution has also established the time of occurrence. 13. So far the manner of occurrence is concerned, all the witnesses have consistently stated that the accused persons dragged the informant’s father from his door towards their house, thereafter Patna High Court CR. APP (DB) No.911 of 2011 dt.22-12-2016 8/10 Satya Narayan Rai goes to his house and comes out with a sword, which he pierced in the belly of the informant’s father. Thus, the witnesses are consistent in their statement that the appellant Satya Narayan Rai hurled one sword blow into the belly of the informant’s father. 14. So far as the presence of the informant at the place of occurrence is concerned, except for P.W.1, other witnesses specifically stated that P.W.4 was present. Even if we discard the statement of P.W.1, there is no apparent inconsistency in the statement of other witnesses, as such the prosecution has been able to establish that Satya Narayan Rai caused death of the deceased by piercing sword blow in the belly of the informant’s father. 15. The main issue is whether the appellants could be held guilty for the charge of murder under Section 302 of the Indian Penal Code or 304 of the Indian Penal Code, as defence alternatively argued that the prosecution side was the aggressor. 16. Counsel for the appellants has argued that the investigating officer did not find any sign of brick batting at the house of the informant, rather he found bricks and stone strewn all over the courtyard of the accused. The prosecution witnesses themselves have stated that there were brick batting from both sides. Learned counsel for the appellants submits that absence of any sign of brick batting from the appellant side towards the informant side would show that it Patna High Court CR. APP (DB) No.911 of 2011 dt.22-12-2016 9/10 is the prosecution side, which is aggressor. 17. To the aforesaid extent, we would agree with the submission of the learned counsel for the appellants. We find that there was land dispute between the parties. The prosecution witnesses stated that there was brick batting, however, no bricks/stones were found in front of the informant’s house, rather the bricks and stones were found in the courtyard of the appellants, which does establish the defence version that there was brick batting from the prosecution side. It appears that on account of brick batting from the prosecution side and the provocation so made, the three accused persons dragged the informant’s father from his house towards their house. None of the accused persons were then armed with any weapon. The appellant Satya Narayan Rai after dragging the deceased to his courtyard alone went to his house and brought a sword and pierced the same in his belly. Though the appellant Satya Narayan Rai pierced the sword with an intention to kill the deceased, however, he acted on the provocation of the prosecution side and as such this case would fall under Section 300, Explanation-I of the Cr.P.C. Accordingly, we convict him under Section 304 Part-I of the Indian Penal Code and alter the conviction from one under Section 302/34 of the Indian Penal Code to one under Section 304 Part-I of the Indian Penal Code, as against appellant Satya Narayan Rai. Considering the fact that occurrence took place in the year 1993, we are of the view that imprisonment for a period of 10 Patna High Court CR. APP (DB) No.911 of 2011 dt.22-12-2016 10/10 years (ten years) would meet the ends of justice and accordingly sentence the appellant no.1, namely, Satya Narayan Rai so. 18. So far as the other two appellants, namely, appellant nos.2 and 3 are concerned, we alter the conviction under Section 302/34 of the Indian Penal Code to one under Section 326/34 of the Indian Penal Code for causing grievous hurt, as they had not assaulted the deceased nor they were armed with any weapon. In this view of the matter, it would meet the ends of justice, if the sentence passed against the appellant nos. 2 and 3 is reduced to the period already undergone under Section 326/34 of the Indian Penal Code. 19. With the aforesaid modification in conviction and sentence, the appeal is partly allowed. Uday/- (Samarendra Pratap Singh, J.) (Sanjay Kumar, J.) AFR/NAFR NAFR CAV DATE NA Uploading Date 19.01.2017 Transmission Date 19.01.2017