CRIMINAL APPEAL No.324 OF 1993 (Against the judgment and order of 3rd Additional Sessions Judge, Saran at Chapra dated 10.9.1993 in Sessions Trial No. 313/1986) 1. SHEO PRASAN SINGH 2. SHYAM BIHARI SINGH, BOTH ARE SONS OF LATE RAM SEWAK SINGH, RESIDENT OF VILLAGE JAMALPUR, POLICE STATION- MARHOWARAH, DISTRICT- SARAN. -------------------------------------------Appellants Versus STATE OF BIHAR -----------------------------------Respondent For the appellants : Mr. Pramod Kumar, Advocate. For the State : Mr. Satya Narain Prasad, APP P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL Kishore K. Mandal, J The present appeal arises out of and is directed against the judgment and order dated 10.9.1993 passed by 3rd Addl. Sessions Judge, Saran at Chapra in Sessions Trial No. 313/1986 whereby the appellant no. 2 Shyam Bihari Singh has been convicted under section 307 of Indian Penal Code and sentenced to undergo rigorous imprisonment for 03 years. 2. Records indicate that two appellants namely Sheo Prasan Singh and Shyam Bihari Singh had preferred the appeal. During the pendency, appellant no. 1 Sheo Prasan Singh died whereafter an application (I.A. No. 1005/2006) was filed intimating the Court about the death of the said appellant. A report from the concerned Superintendent of Police regarding the death of appellant no. 1 (Sheo Prasan Singh) was called for. 2 Upon receipt of the report under order dated 12.10.2006, the appeal as against appellant no. 1 Sheo Prasan Singh stood abated. Now, therefore, the present appeal survives only in respect of appellant no. 2 namely Shyam Bihari Singh. 3. Back ground facts in a nutshell are as follows: On 10.2.1985 at 5 p.m., the informant Ram Swarath Singh (P.W. 6) while being treated at the Government Hospital, Marhowrah made a fardbeyan (Ext.3) alleging therein that on the date of occurrence i.e. on 10.2.1985 at 10 a.m., he went to the field adjacent to his house seeing that certain woods and bricks had been stacked thereon. There he found appellant present along with other accused persons named in the F.I.R. A protest was made by him on the ground that the land belonged to him by virtue of a decree/order passed in a civil proceeding whereafter there was hot verbal exchanges between them. Accused Bikramaditya Singh exhorted the accused present to assault the informant and in pursuance thereto, co-accused Sheo Prasan Singh (since dead) gave a “farsa” blow on the head of the informant. On hearing the hulla, the present appellant Shyam Bihari Singh rushed to the place of occurrence and gave a “bhala” blow on the right temple of the informant (P.W. 6). The prosecution case further is that co-accuseds namely Hari Narayan Singh and Jai Prakash Singh (since acquitted) thereafter assaulted the informant with “lathi”. When the son of the informant (P.W. 1) rushed to save his father (P.W. 6), he was 3 assaulted by accused Sheo Prasan Singh (since deceased) with “farsa” on his head as a result whereof he sustained injury. As per prosecution case, the occurrence was witnessed by several co-villagers named in the F.I.R. including P.Ws. 2 Pashupati Nath Singh and P.W. 3 Nishideo Singh who intervened in the matter and thereafter the informant was saved from further assault. Both the injureds were thereafter first brought to the Primary Health Centre, Nautan where they were given first aid and thereafter they went to the Government Hospital, Marhowrah where the injureds were treated of their injuries by Dr. Parshuram Singh (P.W. 4). The police arrived there and fardbeyan (Ext.3) was recorded which gave rise to formal F.I.R. (Ext. 4). The matter was thereafter investigated by P.W. 5 Narendra Singh. The injury reports respecting the two injureds namely P.W. 6 (informant) and his son (P.W. 1) were received. Those documents are on record as Ext.1 and 1/1 respectively. Upon conclusion of investigation, the I.O.(P.W. 5) submitted chargesheet against the accuseds including the appellant but not against one of the accuseds namely appellant Sheo Prasan Singh (since dead). He was subsequently summoned and put on trial by reason of an order passed under section 319 of the Code of Criminal Procedure. Charges were framed u/s 307 I.P.C. and read over and explained to the appellant. The appellant abjured the guilt and claimed to be tried. 4. In order to prove the charge(s) so framed against the 4 appellant, the prosecution examined as many as 07 witnesses. The defence also adduced oral evidence and brought on record certain documents to show the alibi of one of the accuseds and enmity between the parties. P.W. 1 Anirudh Singh is the son of the informant who also received injury in course of the occurrence. P.W. 2 Pashupati Nath Singh and P.W. 3 Nishideo Singh are the co-villagers whose names figure in the F.I.R. as witnesses. They supported the prosecution case as spelt out in the F.I.R. (Ext. 4) and in course of trial by the informant (P.W. 6). P.W. 4 Dr. Parshuram Singh is the doctor who medically examined the informant (P.W. 6) and his son (P.W. 1) of their injuries and issued injury reports(Ext.1 and 1/1 respectively). P.W. 5 Narendra Singh is the Investigating Officer of the case who made investigation into the allegations and thereafter submitted chargesheet. P.W. 6 Ram Swarath Singh is the informant of the present case who also suffered injuries at the hands of the accuseds including the present appellant. P.W. 7 Parsuram Singh is a formal witness who has proved the fardbeyan (Ext.3) and the formal F.I.R. (Ext.4). 5. Mr. Pramod Kumar, learned counsel for the appellant, assailed the judgment and order under appeal. He placed before the Court the evidence of P.W. 1, P.W. 4 and P.W. 6 only in support of his contention. On the contrary, learned A.P.P. supported the judgment and order of conviction recorded by learned Trial Court. 5 6. In view of the rival submissions, this Court proceeds to analyse the evidence of the P.Ws which have been referred to and relied upon by the Counsel for the appellant. P.W. 6 is the informant of the case who received injuries in course of the occurrence. He has deposed that on the date of occurrence at about 10 a.m., he went to the field which was adjacent to his house located in village Jamalpur and found bricks and woods stacked in the field. The accused persons were present there from before. This witness tried to know as to how and why they had stacked bricks and woods on the land whereupon the accused persons declared that the land belonged to them. This witness, on the other hand, claimed the land on the basis of an order passed by the Civil Court and also asserted possession thereon. This was followed by hot verbal exchanges between them. Paragraph 2 of his deposition indicates that before the assault had taken place, there was hot verbal exchange(s) between the parties on the issue of possession of the land in question whereafter one of the co-accuseds exhorted the others present there to assault. On such instigation, accused-appellant Sheo Prasan Singh (since deceased) picked up „farsa‟ which was lying on the stack of husk kept nearby and assaulted him on his head. He fell down whereafter the present appellant assaulted him by means of a “bhala” which hit him close to his right temple. Further allegation levelled therein is that two other accuseds present there assaulted him with “lathi”. When the son of the 6 informant namely Anirudh Singh, P.W. 1 came to intervene in the matter and save him appellant appellant Sheo Prasan Singh (since deceased) assaulted him also by means of “farsa” which hit him on the head. His deposition further indicates that both of them were thereafter brought to the Local Primary Health Centre where first aid was offered and thereafter to the Government Hospital, Marhowrah where treatment was/were offered to both the injureds. Paragraphs 11, 12 and 13 of his cross-examination indicate that the prosecution claimed the land in question being the ancestral land whereas the accused persons claimed title and possession by means of partition and exchange of lands. On analyzing his evidence, it is found that barring minor contradictions, this witness has proved the prosecution case. The doctor has found injuries on his person as alleged by him in the F.I.R. (Ext. 4) as also in course of his deposition. His evidence thus found to be reliable and trustworthy. 7. P.W. 1 is the son of the informant who too suffered injury in course of the occurrence. According to him, on 10.2.1985 at about 10 a.m., he was at his door, P.W. 6 had gone to nearby field/land. On hearing loud and hot exchange of words, he went to the place of occurrence. According to him, such hot exchange of words between them was followed by assault by the accused. Co-accused Bikramaditya Singh exhorted the other accused persons to assault his father whereafter accused appellant Sheo Prasan Singh (since deceased) assaulted his 7 father with “farsa” on his head. On receiving the blow, he fell on the ground whereafter he was again struck by the present appellant by means of a “bhala” which hit his father on his right temporal region (kanpatti). He rushed to save his father from further assault whereafter accused Sheo Prasan Singh (since dead) assaulted him with “farsa” causing injury on his head. According to this witness, two other accuseds (since acquitted) also assaulted his father with “lathi”. The witnesses named in the F.I.R. including P.Ws 2 and 3 arrived at the place of occurrence and witnessed the incident. 8. P.W. 4 Dr. Parshuram Singh is the doctor who, during the relevant time, was posted as the Civil Assistant Surgeon at Marhowrah State Dispensary and examined both the injureds (P.Ws. 1 and 6) of their injuries on 10.2.85 at 11 a.m. On the person of the informant (P.W. 6), he found one sharp cut and scalp deep injury on the front of head with profuse bleeding and with horizontal dimension of 3” X 1/3” X ¼”. He found on his person one more sharp cut injury on right cheek vertically placed with dimension 2 ½” x 1” x ¼”.. According to him, both the injuries were grievous in nature. This witness has further opined that injury no. 1 might have been caused by “farsa” blow whereas injury no. 2 was possible by “bhala”. This witness (P.W. 4) found one sharp cut injury on the person of son of the informant (P.W. 1) with dimensions of 2 ½” X 1/3” X ¼” . According to him, this injury was possible by sharp cut weapon like “farsa”. This injury 8 was ,however, found simple in nature. The injuries found on the persons of P.Ws 1 and 6 was/were caused within 12 hours of their examination. Counsel for the appellant on the basis of evidence of these witnesses submits that P.W. 6 in his own deposition has admitted that a dispute between the parties over possession of land had occurred prior to the occurrence followed by hot verbal exchange of words and thereafter the “farsa” which was not brought from before but was found kept on the stack of husk was picked up by one of the accused (Sheo Prasan Singh (since dead) and injuries were inflicted on the informant and P.W. 1. Subsequently, the appellant also gave a “bhala” blow which hit P.W. 6 (informant) on his temple/cheek area. Referring to the medical evidence of the doctor (P.W. 4), it has been argued that the injuries were not found such so as to put P.W. 6 in danger of life. The opinion of the doctor that the injuries were grievous in nature is not based on any radiological test. Referring to the nature of the injuries found on P.W. 6 and the provision of law as contained in Section 320 of Indian Penal Code, it has been submitted that the same cannot be held to be grievous in nature. Counsel for the appellant further highlights that the deposition of the informant (P.W. 6) at paragraph no. 2 would show that the accuseds were not armed from before. The assault was preceded by quarrel between the parties over title and possession of the piece of land which is the place of occurrence in the present case. Having regard to the evidence available on record, 9 particularly that of P.Ws 1 and 6, it has been submitted that the intention of the present appellant to cause death cannot be necessarily inferred from the materials on record. The intention or knowledge that by such act death might be caused to the informant (P.W. 6) cannot be inferred. It is further contended that there is no allegation of repetition of blow by the present appellant. 9. Counsel for the State on the other hand submitted that the nature of weapon used by the present appellant and the situs of injury inflicted by him indicates the intention of the appellant. According to him, the evidence on record indicates that the appellant had the knowledge that by such act, he was likely to cause death of the injured/informant. 10. This Court thoughtfully considered the submissions advanced on behalf of the parties. Considering the factual background emerging from the evidence of P.Ws. 1 and 6 and keeping in view the injuries sustained by them, as reflected from the deposition of the doctor (P.W. 4), this Court is of the considered view that the intention of the appellant to kill the informant (P.W. 6) cannot be necessarily inferred therefrom. The submission of learned counsel for the appellants therefore, carries weight. This Court minutely perused the evidence of the doctor (P.W. 4). Except detailing the situs and dimensions of the injuries on the person of the informant (P.W. 6) he has not deposed any thing so as to infer conclusively that the injury 10 caused by the appellant was grievous in nature. True it is that P.W. 6 sustained injuries on his head and temporal region caused by “farsa” and “bhala” respectively but this Court is of the view that the opinion of the doctor that those injuries were grievous in nature cannot be accepted. It appears to the Court that on account of sudden quarrel between the parties on the issue of possession of the piece of land (place of occurrence) followed by hot verbal duo, injuries were inflicted on P.W. 6. It has not been alleged that the appellant was armed from before. The positive evidence as can be seen from the evidence of the informant (P.W. 6) is that Sheo Prasan Singh (appellant since dead) picked up one “farsa” which was kept on the nearby stack of husk and inflicted injuries followed by the present appellant. In the light of factual scenario appearing from the record, this Court is of the view that the appellant is guilty of having voluntarily causing hurt to the informant (P.W. 6) by dangerous weapon. The appellant is, therefore, held guilty of having committed an offence punishable u/s 324 of the Penal Code. 11. It has been submitted that the occurrence is of the year 1985. The appellant had to fight litigation since then and as such a lenient view, so far as imposition of sentence, be taken in the matter. Looking to the records, it has been submitted that this appellant has remained in custody for less than 03 weeks. 12. Having considered the submissions on behalf of the parties, this Court is of the view that the following sentence shall 11 meet the ends of justice: Appellant Shyam Bihari Singh is found guilty under section 324 of Indian Penal Code and sentenced to undergo rigorous imprisonment for three months besides imposition of fine of Rs. 1,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for 15 days. In case of realization of fine, the same shall be paid to the informant (P.W. 6) or his son (P.W. 1). The bail bonds of the appellant are hereby cancelled. He is directed to surrender to arrest forth with. 14. In the result, the appeal is dismissed with modification in conviction and sentence. Patna High Court 25th March, 2009 NAFR/pkj ( Kishore K. Mandal, J. )