CRIMINAL APPEAL (DB) No.278 OF 2003 -------- Against the judgment of conviction dated 29.4.2003 and order of sentence dated 30.4.2003 passed by Shri Radha Krishna, 3rd Additional Sessions Judge, Gopalganj in Sessions Trial No. 46 of 2001/118 of 2001. ------ SAJJAN MANJHI @ SANJAN MANJHI ………… Appellant Versus THE STATE OF BIHAR …………………… Respondent ------ For the Appellant: : M/S Ranjit Kr. Pandey, Lallan Kumar No. I, Dhirendra Kumar Mishra, Advocates For the State: : Mr. Lala Kailash Bihari Prasad, Sr. Advocate. ------ P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE DHARNIDHAR JHA Navin Sinha,J. The present appeal arises out of the judgment of conviction and sentence dated 29.4.2003/30.4.2003 passed by the 3rd. Additional Sessions Judge, Gopalganj in Sessions Trial No. 46 of 2001/118 of 2001. 2. The appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life along with fine of Rupees. One thousand with three months simple imprisonment in the event of default. 3. The fardbeyan of Bishwanath Singh, P.W. 5, father of the deceased Shailesh Singh was recorded on 5.1.2001 at 12. P.M. marked as exhibit-3. He stated that his son along with P.Ws. 1, 2 and 3. went to the egg shop to eat eggs at about 6 P.M. The informant also was out looking for labour. An argument ensued with the appellant at the egg shop with regard to contesting elections for the post of Mukhiya. P.W.'s 1,2,& 3 pacified the quarrel. The informant also reached there. While he was making queries, the appellant pulled out a knife from the „Lungi‟ around his waist and assaulted Shailesh Singh on his left neck. The latter ran towards his house but fainted on the way. His friends 2 brought him home. While the informant was looking for a transport to take the injured to Gopalganj, he expired. The informant asserted that the assault was with the intention to kill. 4. The Investigating Officer, P.W. 8 arrived at the house of the informant at about 12 P.M. when he drew up the inquest report marked exhibit-5 witnessed by P.Ws. 6 and 7 and the seizure list marked exhibit-6 witnessed by P.W.4.. The post-mortem report of the deceased marked as exhibit-7 was proved by P.W. 9. The formal F.I.R. was registered on 6.1.2001 at 9.30 A.M. 5. Learned counsel for the appellant contended that of the 12 charge sheet witnesses, Suresh Tiwary, Rohan Manjhi and Baijnath Manjhi, who were the only independent witnesses had not been examined. The owner of the egg shop Jag Mohan Manjhi had also not been examined. P.Ws. 1 to 7 are either relatives or close friends of the deceased and are, therefore, interested witnesses, not impartial. They were not consistent on the genesis of the occurrence. There was contradiction between the statements made in the F.I.R. Of one assault only and that made during trial of two assaults after the post-mortem report was made available. The inquest report records only one injury on the left side of the neck. The original allegation is for an occurrence at the egg shop but during trial the place of occurrence was shifted 50 yards east from the same. The appellant was a backward class leader, falsely implicated to prevent him from contesting elections to the post of Mukhiya. The occurrence is at 6 P.M. in the month of January, when darkness envelops. There is no source of light suggested 50 yards from the egg shop to facilitate identification. There was no motive to commit the murder and the Investigating Officer did not properly investigate the aspect of the appellant being a candidate for election to the post of Mukhiya. The prosecution witnesses are not consistent on the nature of apparel worn by the appellant and varied betwen his wearing a shirt and a vest. The blood stained earth seized by the I.O. was not sent for 3 forensic examination. The clothes of the deceased were not seized. On the question of sentence, it was submitted that even if the allegation be accepted, the assault was not premeditated but made in a sudden fight. Relying upon 2002(4) PLJR 452 (Kayum Mian v. State of Bihar), 2005 (4) PLJR 582 (Sadanand Yadav & anr. V. State of Bihar), 2003(2) PLJR 204 (Arsad Reza Khan v. State of Bihar) and 2003(3) PLJR 632 (Rasheed Mansuri v. State of Bihar), it was submitted that at best in the nature of assault and injury caused, an offence could be made out under section 304 part II of the Indian Penal Code. The appellant surrendered on 2.2.2001 and by now has completed nearly eight and half years of continuous custody. 6. Learned Senior Counsel, Sri Lala Kaishal Bihari Prasad submitted that P.Ws. 1, 2, 3 and 5 are reliable eye-witnesses of the occurence. The evidence of a related or interest witness cannot simpliciter be discarded. Independent witnesses may not be available and were generally reluctant to get involved in court cases, more so in a murder trial. In a factional dispute involving village politics, it shall be difficult to get independent witnesses to depose. Placing reliance on AIR 2006 SUPREME COURT 2716 "S. Sudershan Reddy v. State of Andhra Pradesh" it was submitted that mere darkness was not sufficient to doubt identification. Relying on (2007) 1 SCC (Cr.) 476 it was submitted that the assault was not in a sudden fight in the heat of passion but was premeditated as evident from the appellant coming to the egg shop with a concealed knife and springing a surprise assault. The non-examination of Jag Mohan, the egg shop owner is not relevant. No occurrence of assault took place at the egg shop. The witnesses were consistent with regard to the initial altercation and separation at the egg shop, proceeding away from the egg shop, two assaults made at 50 yards east, and that the deceased and appellant were contestants for the post of Mukhiya. Motive was not relevant in face of direct evidence. There is no cross-examination by the defence of P.W. 5, the 4 informant, who stated in his examination in chief that the appellant assaulted twice. 7. In a criminal trial, under section 134 of the Indian Evidence Act it is not the number of witnesses which shall lend credibility or discredit the evidence. Reliable solitary evidence can also be sufficient. Similarly, the evidence of a related or interested witness cannot be discarded simpliciter. If circumstances so indicate, in a particular case, the Courts are generally cautious in relying upon such witnesses and may seek corroboration from independent sources but, this cannot be considered the universal rule for reliable evidence in a criminal trial. The changing social and cultural ethos has made man more self centered and rooted to his own immediate environment. This has led to a reluctance to depose in Courts both as a matter of unconcern in a problem of others as also a disquieting concern not to create unnecessary problems and animosity in ones own life and that of his family. 8. Applying the aforesaid principles, the non-examination of the three independent charge sheet witnesses shall be of no consequence unless those examined are discredited or found unreliable as a related or interested witness. Jag Mohan Manjhi, the egg shop owner is also not a necessary witness. No occurrence of assault has taken place at the egg shop. He is, therefore, not an eye-witness to the assault. 9. It is hardly of any relevance who came first to the egg shop, the appellant or the deceased with his companions. Any contradiction in the evidence on that score is irrelevant. The presence of all at the egg shop including the appellant is a fact. An argument with fisticuffs ensued between the appellant and the deceased, both desiring each other to sit down in favour of the other for election to the post of Mukhiya. The heated atmosphere was pacified and the two warring parties separated. The deceased then proceeded towards the east from 5 the egg stall with his father, P.W. 5 and friends P.Ws. 1, 2 & 3. The appellant was behind him. They were all walking four to five steps ahead or behind each other in a random manner. It is no body‟s case that any other person joined them in their walk towards the east. In this congregation of the informant, P W 's 1 to 3 and the deceased the appellant was the only outsider. He was walking behind but at a proximate distance and left the egg shop simultaneously with them. 10. The darkness at 6 P.M. in the month of January at the place of occurrence and absence of any light is of no relevance when no third unknown person apart from the appellant is stated to be present. This Court, therefore, finds no merit in the argument that darkness without any source of light prevented identification of the appellant. 11. Even otherwise, in the case of S. Sudarshan Reddy (supra), the Supreme Court has observed as quoted hereinafter with regard to ocular powers of a villager as distinct from a town dweller when even a clear night, moonlit night or starry night may be sufficient for silhouette identification by them. 12. The submission that there is contradiction between the prosecution witnesses as to the appellant being in between them or completely behind is again peripheral. P W ' 1 to 3 and 5 have consistently stated that they were all walking together at random position behind each other. The evidence is consistent that the appellant was behind the deceased. When he made the assault on the deceased from behind, at night, naturally the others must have rushed to his rescue. In this melee, it may have been difficult for the informant to specifically see and narrate the number of assaults. He specifically talks of an assault on the left side of the neck, which is corroborated by the inquest and post-mortem report. When the body of the deceased was brought home it was laid flat on its back. P.W. 6, an inquest report witness, states that the body was not turned over when the Police came. P.W. 8, the Investigating Officer, also did not turn 6 over the body of the deceased at this time. It is for that reason that the inquest report mentions of the injury on the neck only. P W's 1 to 3 and 5 accompanying the deceased at the time of assault, have consistently stated that two assaults were made with a knife by the appellant on the deceased, the first assault is stated to be on the back near the shoulder and the second assault on the left side of the neck. 13. The four eye witnesses to the assault have further consistently stated of their attempt to apprehend the appellant being thwarted by the threat held out by the latter holding the knife in his hand. 14. P.W. 8 states that he seized blood soaked earth from the place where the deceased was assaulted. The seizure list was witnessed by P.W. 4. In his deposition he admits his signature but was hostile otherwise. This is hardly relevant when P.W. 8 has proved the same in accordance with law. In view of the direct nature of ocular evidence available with regard to the assault on the deceased, that P.W. 8 did not send the same for a forensic report or did not seize the clothes of the deceased does not in any manner weaken or raise doubts on the case of the prosecution in any manner. 15. In the statement of accusation explained to the appellant under Section 313 Cr. P.C., it was specifically put to him that he assaulted the deceased twice with a knife, on the back and the neck. 16. The Police came to the house of the deceased where he had been carried in the meantime in an injured condition as stated by the prosecution witnesses. The Police are stated to have come at 12 P.M. It stayed back in the village after the fardbeyan was recorded at midnight and the formal F.I.R. was drawn up in the morning at 9.30 A.M. on 6.1.2001. The body was sent for post-mortem and reached the Medical Officer, Gopalganj at 1.30 P.M. 7 17. The defence has not brought any material on record or submitted in a manner to raise doubts upon the first information report or the credibility of the prosecution witnesses as interested or related witness. They are consistent, cogent and convincing and natural witnesses. The Court finds no reason not to accept their statements. 18. The unsubstantiated and uncorroborated submission that the deceased was an accused in two cases at Exhibit A and A/1, to suggest the death in another manner and by another at another place is but a desperate attempt in what is otherwise a case proved beyond all reasonable doubt against the appellant. 19. The prosecution can, therefore, safely be stated to have proved its case with regard to the appellant as the sole assailant to the satisfaction of the Court by direct evidence. There is no occasion to interfere with the conviction of the appellant to warrant interference by this Court. 20. In so far as the sentence is concerned, the Court does find merit in the submission on behalf of the appellant that the present was not a case for imposition of the sentence of life imprisonment under section 302 of the Penal Code. 21. The post-mortem report of the deceased reads as follows: (i) Incised penetrating wound 2 “x ½”xthoracic cavity deep situation on the left side of the neck in supra clivicular region (ii) Incised wound 2”x1/2” bone deep situated over right side of scapula. Death was scribed to injury no. 1 and was sufficient to cause death in ordinary course of nature. 21 It is not the case of the prosecution that the appellant was aware that he shall be meeting the deceased at the egg shop in the evening and, therefore, carried the knife with a premeditated design. It is difficult to believe that in a congregation of 8 five people, the appellant would have the intention to assault one of them in a premeditated manner to cause death. On the evidence, it transpires, that both of them wanted the other to sit down in favour of the other for the forthcoming elections to the post of Mukhiya. An altercation ensured which was separated. The deceased and others proceeded from the egg shop when no sooner at the distance of 50 yards only the assault was made. The question of a premeditated design or intention originating in the short period of time after the altercation does not arise. In that event the appellant would not have proceeded along with the deceased and others from the egg shop but would have laid in wait at a secluded place for the deceased. Clearly there was continuity in the passion that had been aroused in the heated argument at the egg shop when the assault took place within minutes. In the case of Arshad Reza Khan (supra) relied upon by the appellant consequent to an altercation, the assault was made 15-20 minutes later with a dagger causing injury on chest, stomach and back. The injury on the lateral part of the shoulder was some what similar. This Court held that the assault was made in the heat of the moment appropriately covered by Exception 4 of Section 300 I.P.C. making the offender guilty of culpable homicide not amounting to murder. The appellant therein was held not to have the intention to cause death or such bodily injury as was likely to cause death. Nonetheless, it was held that he certainly had the knowledge that it was likely to cause death or was such bodily injury as was likely to cause death. The sentence was, therefore, altered from one under Section 302 I.P.C. to Section 304 Part II I.P.C. and reduced to the period of custody undergone of nine years. 22 In A.I.R. 1997 S.C. 689, in the heat of the moment a scissor blow was made on the right side of the chest and repeated on the right cheek. The Apex Court held that the offence more appropriately fell under Section 304 Part II of the Penal Code and the appellant must be 9 presumed to have the knowledge although he may not have intended to commit murder. The sentence was altered from one under 302 I.P.C. to 304 Part II. In the facts of the present case given the background and the manner in which the assault was committed we are satisfied that the appellant did not intend to cause death. He certainly intended to cause injury to the deceased presumably to compel him to withdraw from the election fray and also to vent his ire by teaching a lesson to the accused for not acceding to his request. But, the conduct of the appellant in the assault satisfies us that the in the nature of the injury caused he had the knowledge that it may cause death or at least that he may cause such bodily injury as was likely to cause death. Knowledge is again to be gathered from the surrounding circumstances, nature of weapon, manner of assault etc. The offence committed by the appellant, therefore, clearly falls under exception 4 to Section 300 of the Penal Code and is classified as culpable homicide not amounting to murder. 23 Section 304 Part II of the Penal Code provides for a sentence of imprisonment up to 10 years. The appellant is stated to be in custody since 2.2.2001 and has undergone eight and half years of continuous custody. In view of the aforesaid discussion, We direct that the period of sentence be confined to that already undergone. He is directed to be released forthwith, if not wanted in any other case. 24 With the modification in conviction and sentence as above, the appeal is dismissed. (Navin Sinha,J.) Dharnidhar Jha,J. I agree. (Dharnidhar Jha,J.) Patna High Court The 12th August, 2009 AKS/- (NAFR)