Cr. Appeal (D.B.) No. 170 of 2004 **** Against the judgment of conviction and order of sentence, dated 29.01.2004, passed by Shri Sushil Kumar, Additional Sessions Judge, Fast Track Court, I, Bhagalpur, in Session's Trial No. 13 of 1985 **** Rajendra Yadav, s/o Aasho Yadav, r/o Kola Narayanpur, P.S. Jagdishpur, district Bhagalpur .. Appellant Versus The State of Bihar .. Respondent **** For the appellant : M/S Dhirendra Nath Jha & Janki Nandan Prasad, Advs. For the respondent : Mr. Ashwini Kumar Sinha, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Shyam Kishore Sharma & Gopal Prasad, JJ. The sole appellant has been convicted under Section 302Penal Code and has been sentenced to undergo rigorous imprisonment for live. 2. The prosecution case, as alleged, in the fardbeyan by the informant, Dasrath Yadav, that he has five bigha of land at village Bada Daharpur, on the bank of river Katria out of which he had sole one bigha and ten katha of land to Sakhichand Yadav, resident of village Gopalpur, P.S. Gopalpur abut two years back by his father by a sale deed. Sakhichand Yadav did not pay the consideration money and, hence, the sale deed executed by his father got cancelled by filing petition in the 2 registry office. It is further alleged that Sakhichand Yadav sold the land by a sale deed to Rajendra Yadav and Rajendra Yadav tried to get possession over it. Further, case of the prosecution is that this year he has grown some maize and gahuan grasss to be used for feeding the cattle and on 21.09.1983 at 05.00 p.m. he along with his father, Laxmi Yadav, mother, Sudha Devi, cousin brother, Ram Jeet Yadav, were cutting the said crops then Rajendra Yadav armed with “hasua”, Ashok Yadav armed with “garasa”, Bhola Yadav armed with “garasa”, Bhutti Yadav armed with lathi, Anandi Yadav armed with “farsa” and Jaldhar Yadav armed with “bhala” came forming an unlawful assembly and protested the cutting of gahuan grass and claimed that he has purchased the land on which the informant said that they have grown gahuan grass and so they are cutting on which there was verbal altercation and all the accused persons chased to assault them. The informant and his cousin brother fled away and remained standing by the side, his mother, Sudha Devi, continued to cut the gahuan grass and then it is alleged that the accused persons surrounded his mother and said that she is instrumental and all started assaulting her and thrown on the ground and Rajendra Yadav started cutting the neck. On the cry the neighbour came and saw the occurrence and on the intervention of the villagers the accused persons fled away. Further, case is that when after the occurrence the informant went to his mother he found cut injury on the neck and he left her mother at the place of occurrence and, along with his father, went to the Police Station to informant the police. On the fardbeyan of the informant at about 08.00 p.m. the first information report was lodged on 21.09.1983. However, the fardbeyan was received in the 3 office of the Magistrate on 24.09.1983. The first information report was lodged under Sections 307, 324, 147, 148 and 149 of the Penal Code, subsequently, Section 302 of the Penal Code was added on 07.10.1983. The charge sheet was submitted, cognizance taken and case was committed to the Court of Session. After the commitment the charge was framed under Sections 302/149 of the Penal Code against seven accused persons and against Rajendra Yadav charge was framed under Section 302 of the Penal Code by order, dated 16.06.1988. However, during trial five witnesses were examined on behalf of the prosecution. P.W. 1 is Laxmi Yadav, P.W. 2 is Ram Jeet Yadav, P.W. 3 is Dasrath Yadav, P.W. 4 Dr. Kailash Jha and P.W. 5 is Ambika Singh, the investigating officer, who has submitted the charge sheet. The documentary evidence adduced on behalf of the prosecution are Exhibit 1, post mortem report, and Exhibit 2, formal first information report. 3. The defence has also adduced oral and documentary evidence. The oral evidence adduced on behalf of the defence is D.W. 1, Sudhanshu Prasad Yadav, D.W. 2, Sudhir Prasad Singh, and D.W. 3, Diwakar Chandra Sinha. The documentary evidence adduced on behalf of the defence is Exhibit „A‟ sale deed and Exhibits „B‟, „B/1‟ and „B/2‟ are the rent receipts. 4. After considering the oral and documentary evidence the learned lower Court acquitted the other accused persons, but, convicted the appellant for offence under Section 302 of the Penal Code. 5. The defence of the accused persons during the trial as apparent from the suggestions that no occurrence, as alleged, occurred and 4 the witness has falsely deposed and there is rumor in the village that Laxmi Yadav has done to death his wife along with Sakhichan Yadav and has falsely implicated the accused persons. 6. The learned Lawyer for the appellant, however, contended that the prosecution has established that the injury is not sufficient in ordinary course of nature to cause death and there is evidence that there was verbal altercation between the parties. Had there been an intention to kill Sudha Devi, the accused persons, who were armed would have inflicted injury by “bhala” “garasa” and the occurrence took place at about 05.00 p.m., but, accused persons left the victim uncared and first went to the Police Station to inform the police and none of the member of the prosecution party even took Sudha Devi to hospital and, hence, it was a negligence on the part of the prosecution contributed to death of deceased as well and further the prosecution has not been able to prove the charges beyond reasonable doubts as informant has also turned hostile in the cross examination and has not supported the prosecution case. 7. Further, we proceed to consider the evidence of the witness in the light of the submission taken by them and the defence taken by the accused persons. 8. The prosecution case, as alleged in the fardbeyan, is that Rajendra Yadav came along with seven persons and protested the cutting of the crops claiming that he has purchased the land whereas the prosecution party claimed that the land belonged to them and they have grown the crop then verbal altercation took place between them. It is alleged that when the accused persons chased the male member of the 5 prosecution party fled away and remained standing there at some distance, but, Sudha Devi remained cutting there crop and, thereafter, Rajendra Yadav said that she is instrumental and there is allegation of assault by slaps and fists and cutting of the neck. 9. However, we proceed to consider the evidence of doctor first for convenience. P.W. 4 is Dr. Kailash Jha. From his evidence, itself, it is apparent that he has stated in his evidence that on 23rd September, 1983, he performed the post mortem examination on the person of Sudha Devi, wife of Laxmi Yadav, and found the following ante mortem injury : (i) A stitched wound on neck in front 3” x minimum margin – sharp regular. On removal of stitch on skin – sharp cutting wound on trachea, whole of tracheal ring was cut posterior in opposition with soft tissue. Major carotid vessel intact. Anterioraly medial part of sternomastoid muscle both sides have sharpened external jugular cut opposite. (ii) On dissection – heart empty, lungs both sides congested, stomach content 4 oz. fluit, urinary bladder empty, colon with lose stool intestine mesentry pale – uterus non-graved atrophied. Brain with meninginges congested. Time elapsed since death is 18 to 24 hours. 10. However, he has proved the post mortem report as Exhibit 1, but, there is no report or evidence of doctor that the injury was sufficient in ordinary course of nature to have caused death. However, in the cross examination has stated that injury no. 1 may be caused by light of heavy 6 weapon depending upon momentum at 11.50 a.m. on 23.09.1983 and it is submitted that the time elapsed since 18-24 hours and, hence, the death may be in between 06.00 to 12.00 p.m. on 22.09.1983 whereas the occurrence took place on 21.09.1983 at 05.00 p.m. then victim taken to hospital in the night, but, no time is mentioned when they reached at hospital. However, the doctor to conduct post mortem observes that surgical intervention by a doctor, but, doctor who conducted surgical intervention has not been examined and injury report has not been brought on record post mortem report suggests that a stitched wound on the neck. 11. The investigating officer, who conducted the investigation, has also not been examined as P.W. 5. The police officer has stated that he took the charge of the case on 30.12.1983 and has formally proved the formal first information report as he had neither inspected the place of occurrence nor recorded the statement of the witness, but, had assumed the charge during investigation and had only submitted the charge sheet. 12. However, P.Ws. 1, 2 and 3 are the only witnesses. P.W. 3 is the informant though this witness, in his evidence, has submitted that occurrence took place at 05.00 p.m. and he was at the place of occurrence at 02.00 p.m. and accused persons, Rajendra Yadav, along with others, came and assaulted his mother. Rajendra Yadav was armed with “farsa” and other accused persons were farsa, garasa, bhala, lathi and farsa and when the accused persons came that the informant went out from the field and Rajendra Yadav assaulted his mother by “hasua” and, thereafter, he went to Jagdishpur Police Station to give his statement and, thereafter, daroga came and by that time her mother succumbed to injury. However, 7 in cross examination he has stated that the land on which occurrence took place is claimed by the accused persons on the ground that he has purchased from Sakhichand Yadav. However, it is pertinent to mention here that his examination and cross examination was conducted on 20th January, 1989. He has stated that at the time of occurrence his mother was in the field and he and his cousin brother, Ram Jeet Yadav, were not at the house and he went in the filed after the murder of his mother. He has, further stated that daroga did not lodge the contents of the fardbeyan and neither he nor his brother saw the occurrence. He has, further, stated that he has named the accused persons, but, in his subsequent cross examination it appears that he has not supported his evidence in his examination-in- chief appears to have been manoeuvred so that point of cross examination is not a true version. 13. However, this witness supported the prosecution case in his examination-in-chief, but, he has obliterated his evidence in cross examination as appears to have been manoeuvred, hence, the case hinges on the evidence of P.Ws. 1 and 2. However, P.W. 1 is the father of the informant and he has stated in his evidence that at the time of occurrence at about 05.00 p.m. he was with the informant, Dasrath Yadav and they were cutting gahuan grass. He has further stated that he has sold the land to one Sakhichand Yadav of Gopalpur. Further, he has submitted that he saw the occurrence and injury was inflicted by Rajendra Yadav on the neck of the deceased. He was at the distance of ten hands and then he stated that he went to Police Station by foot and from place of occurrence village Jagdishpur and returned with daroga and jamadar at about 06.00 p.m., at 8 that time his wife was alive and then he took her to Jagdishpur Hospital and, thereafter, at the advice of doctor she was taken to Bhagalpur Hospital and she died on the same night. He has stated that he was cutting gahuan grass, which was protested by the accused persons then verbal altercation took place between them and on chase he fled away and, thereafter, the accused persons assaulted his wife. There was blood at the place of occurrence. He has, further, stated that he went to Police Station by foot. However, the fardbeyan (Exhibit 2) mentions that distance of place of occurrence and Police Station is nine kilometer. From the evidence of this witness it appears that accused persons came protested lead to verbal altercation and then assault took place. However, this witness has stated that he went to Police Station after the occurrence and returned with daroga at place of occurrence about 06.00 p.m. whereas the fardbeyan suggests that first information report instituted on the statement of Dasrath at 08.00 p.m. at the Police Station which is 9 K.M. away from place of occurrence and the prosecution case is that this witness went to Police Station with the informant on foot and, hence, the evidence is that he returned back at place of occurrence with police at 06.00 p.m. is not reliable and acceptable. 14. P.W. 2, however, supported the prosecution case that while they were cutting the gahuan grass the accused persons came and Rajendra Yadav gave injury on the neck of the deceased. Further, this witness has stated that at the time when the police reached there, Sudha Devi, the victim was alive and she was taken to hospital and from there to Bhagalpur where she died. In his cross examination he has stated that the accused persons came from the west and there was verbal altercation 9 between them that the land belonged to her and the accused persons protested which followed with the assault. 15. However, the defence has also adduced two witnesses and they have not supported the prosecution case and asserted that it was Laxmi Yadav, who killed his wife and falsely implicated the accused persons. However, the defence, itself, devoid of any normal common sense that a person will kill his wife to implicate the accused and further D.W. 3 has come to prove the sale deed. However, the prosecution case is that gahuan grass were grown by the prosecution party and, hence, taking into consideration the evidence of P.Ws. 1 and 2 it is apparent that the accused persons came at the place of occurrence and protested and then the occurrence took place in which the appellant, Rajendra Yadav, caused injury to the deceased, Sudha Devi. However, it is apparent that as per the allegation and the evidence the accused persons had come with farasa, bhala, garasa, lathi. There is allegation in the fardbeyan, itself, about the assault by slaps and fists and there is no injury by garasa, bhala and farsa nor there any allegation of assault by other accused armed with lathi, bhala and garasa. Only injury is found on the person of the deceased on neck, but, there is no report or evidence of doctor that the injury was sufficient in ordinary course of nature to cause death. Further, the case in the cross examination appears to be otherwise that deceased remained there at place of occurrence till arrival of police, but, no medical aid was given to the deceased as from evidence of P.W. 2, who is nephew of the deceased. 16. Hence, in the facts and circumstances of the case, the occurrence took place regarding land when the accused persons were 10 claiming the land to have purchased and there is verbal altercation and occurrence took place in the fit of moment, it can well be inferred that had there been any intention to kill, the accused persons, who were variously armed with lethal weapons, must have assaulted the prosecution party, but, there is no case of the prosecution that the accused persons, seven in numbers, have assaulted and the injury inflicted also does not mentions in the evidence of the doctor and it was in ordinary course of nature to cause death and, hence, it can well be inferred that the occurrence took place in the fit of anger and the injury concern there is no report or evidence that the injury was sufficient to cause death, hence, does not suggests in Section 299 or even Section 300 of the Indian Penal Code as the degree of probability of causing death of the said injury has not come in the evidence of doctor and, hence, has not proved by the prosecution as the injury was as such to have cause death whereas there is negligence on the part of the prosecution that deceased was not taken to hospital and was left at place of occurrence till the arrival of daroga and the place of occurrence is at the distance of 9 K.M. and prosecution party went to Police Station on foot and fardbeyan recorded at 08.00 p.m. at Police Station and then they returned with daroga till then though P.W. 2 was at place of occurrence as per his evidence with his father who is non-else than the son of the brother of the husband of deceased and, hence, negligence on the part of prosecution contributed the death of deceased. 17. Hence, under the facts and circumstances, the conviction under Section 302 of the Indian Penal Code be altered to offence under Section 304 Part II of the Indian Penal Code and, hence, in the interest of 11 justice, since, the appellant is in jail since 29.01.2004, hence, the end of justice shall meet the purpose by sentencing the appellant for the for the period already undergone. 18. The criminal appeal is dismissed with modification. We direct that the conviction under Section 302 of the Penal Code be altered to offence under Section 304 Part II of the Penal Code. The ends of justice shall meet the purpose by sentencing the appellant for the period already undergone. The appellant is in custody since 29.01.2004, he is directed to be released on bail forthwith, if not required in any other case. (Shyam Kishore Sharma, J.) ( Gopal Prasad, J. ) The Patna High Court, The 14th day of July, 2010, N.A.F.R./S.A.