Criminal Appeal (SJ) No. 358 of 2007 ------- Against the judgment and order of conviction and sentence dated 17.2.2007 and 22.2.2007 passed in Shri Harendra Kumar Singh, Additional Sessions Judge, Fast Track Court II, Saharsa in S.T. No. 10 of 1991. -------- Guli Singh, son of Late Botal Singh, resident of village – Belbara, Police Station – Bakhtiarpur, District – Saharsa ……………… Appellant Versus The State of Bihar ……………….. Respondent. -------- For the Appellant : Smt. Nutan Sahay, Advocate (Amicus Curiae) For the State : Shri Ajay Mishra, A.P.P. -------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------- Dharnidhar Jha, J. The present appeal is directed against the judgment dated 17.2.2007 passed by the Additional Sessions Judge-cum-Presiding Officer, Fast Track Court II, Saharsa in Sessions Trial No. 10 of 1991 by which while being acquitted of the charge under section 449 IPC, the appellant was held guilty of committing offence under section 304 II IPC. After being heard on the point of sentence on 22.2.2007, was directed by the learned trial court to suffer RI for five years as also to pay a fine of rupees one thousand. In case of default in payment of fine, the trial judge directed the appellant to undergo SI for two months only. 2. The mother of the deceased Yashoda Devi is the informant of the case and she gave her fardbayan about four days after the occurrence on 10.6.1988 alleging that the deceased along with one Inglish Singh had gone into the field of the present appellant for plucking Mung pods. The appellant chased them and it is stated that he assaulted the deceased with Paina (Paina is a hard blunt substance created by splitting up a bamboo). The deceased ran for safety into his house and hid himself. The prosecution alleged that the appellant entered into the house of the deceased and assaulted him there also. 2 3. As may appear from the evidence, the deceased died four days after the occurrence. The case was registered and the investigation was undertaken and after close of the same, the solitary appellant was sent up for trial, which ended in his conviction. 4. The defence of the appellant was twofold. It was suggested to P.W. 4 Kumul Kumari that the deceased was ill since long and he died of illness. The appellant himself stated during his statement under section 313 Cr.P.C. that he had some dispute for a particular land with the father of the deceased and in order to putting criminal pressure, the appellant had falsely been implicated. In fact, no occurrence had taken place, as was alleged. 5. For bringing the charges home, which were framed under sections 449 and 302 IPC, the prosecution examined nine witnesses out of whom, P.W. 5 Chena Singh, P.W. 7 Ram Nath Singh and P.W. 8 Chandar Singh were declared hostile. P.W. 3 Ganeshi Singh was tendered for cross-examination. So far as P.W. 2 Reshma Devi is concerned, besides being the grand mother of the deceased, she does not appear to be an eye-witness as she herself admitted that she had gone to earn her wages and when she returned and asked as to what had happened to the deceased, she was told that the deceased was assaulted and died of assault. P.W. 4 was the sister of the deceased and she had given eye witness account of the occurrence. P.W. 6 Yashoda Devi is the mother of the deceased but, she also does not appear an eye witness to the occurrence. P.W. 9 Kartik Prasad Singh was a witness of formal character, who proved the fardbeyan (Ext.1). The doctor was not examined and the I.O. was also not produced for his evidence. 6. It was contended by Smt. Nutan Sahay, the learned amicus curiae that the death was after three days of the occurrence and there does not appear any evidence that the deceased was even taken to a doctor for her examination. In spite of the report being made, there does not appear any postmortem held and, as such, no doctor was produced to support the story that either the deceased was assaulted and that he died on account of the assault given to him. It was contended that the manner of occurrence as narrated by P.W. 4 appears not supported by witnesses, like, P.Ws 2 and 6 and that creates a doubt in the prosecution story. 3 7. P.W. 4 Kumul Kumari is the only eye witness in the case. She stated that while she was going to fetch water, she found that her brother was weeping and coming running and on being asked by P.W. 4 about reason, he stated to her that he was being followed by the present appellant for being assaulted. P.W. 4 stated that her brother went inside his house and this appellant also followed him with a piece of split bamboo. He dragged the deceased out of the house and started beating him. The witness did not go to fetch water and came back and when she objected to the assault being given to her brother, she was abused. P.W. 4 stated that her mother and others had gone to field for plucking Mung. She further stated that the appellant had thrown the deceased on the ground by his chest. The deceased complained of chest pain on account of assault being given to him and, lastly, he died on Thursday, the occurrence having taken place on Monday, i.e., on the 4th day of the occurrence on account of the assault which was given to him. 8. As may appear from the evidence of P.W. 4 in cross-examination, paragraph 6, except this witness, there was none in the house when the occurrence had taken place and no one from the neighbouring houses came there at the time the deceased was being beaten by the appellant. She has stated that the Paina, which was used for assaulting the deceased was about one and half cubit in length and was about two fingers in width and that she had seen the mark of injuries caused on account of the assault given to him. She could not give the count of injuries which had been caused by the assault given by the present appellant. P.W. 4 has stated that it had bled from the injuries but the same had never been dressed up. P.W. 4, in cross-examination, on the genesis of the occurrence stated that the deceased had told her that the appellant had assaulted him only because he had plucked Mung pods from his field. She has also admitted that her brother was not taken for treatment to any doctor who was thrown on a stone which was lying there in the Angan part of her house and on that account, the deceased was hit in his chest but, she could not say whether any bone had been broken or not. 9. Thus, what appears from the evidence of P.W. 4 is that the deceased was not only beaten up by Paina but was also thrown on the ground and, probably, on a piece of stone. The cross-examination part of evidence of the witness does not indicate that she 4 had wavered anywhere from her statement recorded in the examination-in-chief part of evidence and there was no fact brought through her cross-examination, which may discredit her testimony. Thus, the evidence of P.W. 4 appears to me trustworthy. 10. So far as other witnesses, like, P.Ws 2 and 6, the grand mother of the deceased and mother of the deceased respectively are concerned, on the very strength of their evidence, they were not eye witnesses to the occurrence. P.W. 4 has stated in paragraph 6 of her cross examination that she was all alone in her house and there was none present there, thus, ruling out the presence of P.W. 2 or P.W. 6 at the time of the occurrence. They appear making the statement or having learnt either from P.W. 4 or P.W. 1. 11. P.W. 1 has stated that he and the deceased went to pluck Mung pods from the field of the present appellant, who came and started chasing both of them. P.W. 1 ran to his house and came in the evening to the house of the deceased to find that he was lying and was told by the deceased that he had been beaten up by the present appellant. He does not appear stating that he had stated anything either to P.W. 2 or P.W. 6. Thus, on account of being hear say witnesses or on account of having attempted to gather details of the occurrence, there might be a possibility that P.Ws 2 and 6 might not have got the correct manner in which the deceased was assaulted by the appellant. As such, if there was any discrepancy in their evidence as regards the manner of occurrence, that appears not material. Above all, is not it a disputed fact that the deceased prior to his death, was beaten up by the present appellant ? 12. It is true that the learned trial judge has convicted the appellant after acquitting him under sections 449 and 302 IPC, but the contention is that in absence of the doctor, there was no evidence available to the learned trial judge to record a finding of guilt under that particular provision of the Penal Code inasmuch as there was no opinion as regards the cause of death and the nature of injuries, which could have resulted into the death of the deceased. It was, as such, submitted by the learned amicus curiae that the conviction of the appellant under section 304 II IPC may also not be sustainable in law. 13. The doctor has not been examined. The solitary eye witness P.W. 4 has stated in her evidence that there was no visible signs of injury anywhere on the body of 5 the injured, specially, on his chest so much so that his chest was not even swollen. She has been candid in pointing out to the court, as may appear from paragraph 10 of her evidence, that no chest bone of the deceased had been broken. The deceased was not taken to any doctor as well for being treated. This is also not known to this court whether the dead body had been sent for postmortem examination. As such, it could be highly unsafe for this Court to sustain the finding recorded by the learned trial judge that it was the assault administered by the appellant which had caused the death of the deceased. Paina, which has been described by P.W. 4 measuring about one and half cubit in length and might be one inch in width, could be the weapon which might be used for assaulting someone but it could be as dangerous a weapon as could be causing death of a person, could not be said with certainty, specially when it is not known to this court as to what was the age of the deceased on the date of the occurrence. 14. For establishing a charge under section 304 II IPC, the prosecution is required to establish that the appellant was knowing that the act he was likely to commit, was likely to cause death. There is no evidence also to indicate that the appellant was intending to cause such bodily injuries as was also likely to cause death. In absence of evidence in the above behalf, in my considered view, the conviction of the appellant under section 304 II IPC may not be sustainable. However, what I find is that the evidence of P.W. 4, who has been held to be a trustworthy witness, does indicate that the appellant was assaulting the deceased in the field and thereafter chased him up to his house where he had gone to hid himself and thereafter dragged him out of the house and again was assaulting him. Therefore, what this Court perceives is that the appellant was definitely intending to cause hurt to the deceased and was knowingly giving the blows so as to achieving the effect which he was desired to have on account of that particular assault. Thus, what I find is that it may be a case in which the appellant, in absence of the medical opinion, should be convicted under section 323 IPC. 15. I, accordingly, set aside the conviction of the appellant under section 304II IPC and convict him under section 323 IPC and sentence him to SI for one year without imposing any sentence of fine, which has been prescribed in the alternative of the substantive sentence. The appellant is in custody since the day of the judgment, i.e., 6 17.2.2007. He shall be released forthwith if not wanted in any other case. The appeal is dismissed with above modification in the order of conviction and sentence. 16. Smt. Nutan Sahay, learned amicus curiae has assisted this court immensely and, as such, she deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee, for which purpose, let a copy of the first and the last pages of the judgment be made over to her. (Dharnidhar Jha, J.) Patna High Court, The 8th September, 2011, NAFR/Anil/