CRIMINAL APPEAL No.56 OF 1998 Against the judgment and order dated 11.2.1998 passed by the learned Sessions Judge, Vaishali at Hajipur in Sessions Trial Case No. 56 of 1993. AJAY KUMAR, son of Saryug Singh of Village- Megurahi, P.S.- Mahua, District- Vaishali -------- Appellant Versus STATE OF BIHAR-------------------------------------------------- Respondent P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN For the appellant:- Mr. S.S. Sinha Shyam, Advocate For the State :- Mr. S.N. Prasad, A.P.P. S.A. Khan, J. By the impugned order and judgment dated 11.2.1998, three persons namely Saryug Singh, Kishun Singh and Laxman Singh have been acquitted whereas the appellant Ajay Kumar has been convicted under Section 304 I.P.C. to undergo rigorous imprisonment for 10 years. 1. There is relationship between the appellant, the acquitted accused and the informant in this case. Saryug Singh and Baidyanath Singh are brothers. The informant, Rajesh Kumar (P.W. 4) is the son of Baidyanath Singh (P.W. 3) the accused persons i.e. appellant Ajay Singh, Laxman Singh and Kishun Singh are the sons of Saryug Singh. 2. According to the First Information Report, the occurrence took place on 4.8.1991. 2 Rajesh Kumar threw water of the „Naad‟ on the land of Saryug Singh. The appellant objected to it which led to a dispute between the appellant and the informant and the appellant is said to have assaulted the informant with fists and slaps. In the mean time, the other co-accused persons came to the place of occurrence armed with „Lathi‟ and Rod and it is said that Bedami Devi, mother of the informant intervened in the matter and all the accused persons are said to have assaulted her by „Lathi‟ and Rod. Bedami Devi was taken to the hospital and she succumbed to the injuries after four days of the occurrence. 3. Altogether seven witnesses have been examined in this case. P.Ws. 1, 2, 3 and 4 are the eye witnesses and P.W. 5 is the doctor who has examined injuries on the person of the informant and P.W. 6 is the doctor who conducted the post mortem on the deceased. P.W. 7 is the Investigating Officer of this case. 4. The points raised in this case are that firstly there are several discrepancy in the evidence of the witnesses inasmuch as the 3 informant has not stated in the First Information Report that it was Ajay Kumar who had given a blow on the head of the deceased whereas in his further statement in Court he has changed the manner of occurrence, it is also submitted that there is no evidence to indicate that Ajay Kumar was armed with any weapon. There is no evidence to show that he subsequently picked up a „Lathi‟/Rod to assault Bedami Devi. Secondly, it has been argued that the medical evidence shows that there were several injuries on the person of Bedami Devi and as such if the appellant was to be convicted under Section 304 I.P.C., the Court ought to have altered the charge, as the non alteration has caused prejudice to the appellant. 5. To answer the questions raised in this appeal would be relevant to examine the evidence of P.Ws. 3, 4, 5, 6 and 7. 6. P.W. 3 is the father of the informant. In his Examination-in-Chief, he has supported the case in the First Information Report except that he has said that Ajay Kumar had inflicted a „Lathi‟ blow on Bedami Devi. 4 This witness denies the suggestion that his wife had received injuries due to some other reason such a fall and it is only to implicate the appellant, that the case has been filed. P.W. 4, the informant has also supported his case as made out in Court that others were carrying Rods and the appellant was carrying „Lathi‟ and he is said to have given a „Lathi‟ blow. He also alleges that others also assaulted. There was nothing in his evidence that may lead this Court to disbelieve this statement. Similarly P.Ws. 1 and 2 who came to the place of occurrence on „Hulla‟ have also supported the prosecution version. P.W. 1 states that one of the sons of Laxman Singh had given a „Lathi‟ blow to Bedami Devi. I may mention here that on that date the appellant was not on the dock as such this witness identified Laxman Singh only. Therefore, it has been submitted that in fact P.W. 1 has not identified the appellant as the persons who gave the fatal blow on the head of Bedami Devi. P.W. 2 Bitan Singh is named in the First Information Report, he has also stated that Ajay Kumar had inflicted a „Lathi‟ blow on 5 the head of Bedami Devi and Laxman Singh and Saryug Singh were standing armed with „Lathi‟ and Rod when the occurrence took place. 7. The Investigating Officer has been examined in this case as P.W. 7. According to the Investigating Officer, he did not note in the case diary any of the facts relating to the genesis of the occurrence. He has not stated that he found water flowing in the field of Baidyanath Singh which is said to be the genesis of the occurrence and had caused annoyance to Ajay Singh. It appears that the Investigating Officer is not a very truthful witness because he has in fact noted in the diary that he found the „Naad‟ and water present at the place of occurrence. 8. Lastly, I would like to refer to the evidence of the Doctors in this case. The occurrence took place on 4.8.1991. The injury report shows that there was a swelling on the head, chest and neck of the deceased and the injuries were caused by a hard and blunt substance. The Doctor has specifically stated in the cross examination that the injury on the head can only be caused by a very hard 6 substance and in normal circumstances this injury cannot be caused by falling on the ground. The post mortem was conducted on 5.8.1991 which supports the injury report and indicates that there was a fracture of the temporal parietal and left temporal bone. 9. Having discussed the entire evidence on record, this Court will now address itself to the issues raised in this case. Firstly, It has been submitted that the evidence does not indicate as to how Ajay Kumar came to be armed with a „Lathi‟. It is the consistent case of the witnesses that Ajay Kumar was not armed at the time when the occurrence commenced and he had in fact assaulted Rajesh Kumar the informant by inflicting fists blow on him. It also appears on perusal of the evidence that Bedami Devi came into the picture during the course of the occurrence and it is said that when she tried to stop Ajay Kumar from hitting her son, he, i.e. Ajay Kumar is said to have inflicted „Lathi‟ blow on her head. It is true that none of the witnesses have stated as to how Ajay Kumar came to be armed with a „Lathi‟ which 7 according to the appellant is major defect in prosecution case. In my opinion the fact that even if informant and other witness do not state that Ajay Kumar was not armed with „Lathi‟, it would amount to an omission and not a contradiction, especially in view of the fact that it is the prosecution case that all the named accused persons were armed with either a „Lathi‟ or a Rod. The omission aforesaid in my opinion is a minor one and not fatal to the prosecution case. 10. The second submission is that Ajay Kumar was not specifically named as the person who inflicted the „Lathi‟ blow on the head of the Bedami Devi in the F.I.R. and he has been named after 24 hours i.e. on 6.8.1991 as the person who inflicted the „Lathi‟ blow on the head after the lady was examined by the Doctor, P.W. 6. I do not think that this aspect is fatal to the prosecution case. The First Information Report is not supposed to be a detailed account of the occurrence but should state the main aspects of the manner in which the occurrence took place. Now considering that the fight took place between Rajesh 8 (informant) and Ajay (appellant), and the mother Bedami Devi received injuries when she intervened between the two cousins, it would stand to reason that Ajay assaulted Bedami Devi. Therefore, I do not agree with the submission of the learned counsel for the appellant that the name of Ajay Kumar as assailant has been introduced as an after thought. 11. The learned counsel relying on a judgment of the Supreme Court State of West Bengal Vs. Vindu Lachmandas Sakhrani @ Deru reported in 1994 Cr.L.J. Pg. 919 submitted that the Apex Court refused to interfere with the judgment of Kolkata High Court when it acquitted the accused on the ground that no separate charge was framed under Section 302 of the Indian Penal Code against the accused wife, when the husband was acquitted and where the core of the charge was Section 34 of the Indian Penal Code. Both husband and wife were charged as having a common intention to murder. In the present case charges framed against Ajay Kumar (appellant) Laxman Singh, Kishun Singh and Sarjug Singh were as follows: 9 12. “That you or about the 4th day of August, 1991 at village- Magurahi, P.S. Mahua, District- Vaishali in prosecution of the common intention of you all committed culpable homicide not amounting to murder causing the death of Smt. Bedami Devi and thereby committed an offence punishable under Section 304 read with Section 34 of the Indian Penal Code.” 13. It is true that the charges which have been framed indicate that the common intention is the core of the charge. It is submitted that others namely Laxman, Kishun and Sarjug Singh have been acquitted of the charges, and the appellant should have been charged separately for the offence under Section 304 of the Indian Penal code. However, I find that I cannot rely on the judgment cited aforesaid because of the reason that the reasoning of the Kolkata High Court are not available which would indicate the circumstances under which the accused (husband) was acquitted by the Kolkata High Court, which was upheld by the Supreme Court. 14. Apart from the submission on behalf of the appellant, there is a very 10 important aspect to this case which emerges from the allegations made by the prosecution. 15. It is submitted that Rajesh (informant) threw water from the „Naad‟ on the field of the appellant, in other words the provocation was by the informant, which led the appellant to loose self control and resulted in assault by fists and slaps, and it was only when Bedami Devi intervened that she too was assaulted by a „Lathi‟ which led to her death. Therefore, in my opinion this case would fall under exception I of Section 300 of the Indian Penal Code which reads as follows: 16. In order to bring the case within exception I of Section 300 of the Indian Penal Code, the settled principles as laid down by different judgments are: 1. The offender must have done the act which deprived of the power of self control. 2. He must have been deprived by reasons of provocation. 3. The provocation must be sudden. 4. The provocation must not have been sought by the offender. 11 17. The facts discussed above indicate that the conviction of the appellant under Section 304 of the Indian Penal Code is misconceived and the appellant is liable to be punished under Section 304 part II. 18. However, considering the fact that the appellant has gone the agony of trial, the occurrence is of the year 1989 and the appeal was pending in this Court for 10 years, he is convicted to undergo R.I. for 2 years and to pay a fine of Rs. 5000/- failing which to undergo further S.I. for 3 months. The period undergone shall be set off. 19. The appeal is dismissed with the aforesaid directions. Patna High Court, April 22nd , 2009 A.F.R./Sanjay (Sheema Ali Khan, J.)