CRIMINAL APPEAL No.81 OF 2003 ---------- Against the judgment of conviction and order of sentence dated 31.01.2003 passed by Sri Kamla Prasad Sinha, learned presiding officer, Additional Court of Sessions, Fast Track Court, Nawada in Sessions Trial No. 79 of 2002/ 243 of 1988 arising out of Hisua P.S. Case No. 71 of 1986, Gr. No. 1115 of 1986. ---------- 1. Karu Ram, S/o Chaman Ram 2. Jogendra Ram, S/o Rajo Ram 3. Anil Kumar @ Anil Ram, S/o Ram Khelawan Ram Both of Village-Dhurihar, P.S. Hissua, District-Nawada. ……………….. Appellants. Versus The State of Bihar ……….Opposite Party. ---------- For the Appellants :- Sushri Nutan Sahay,Amicus Curiae. Shri Gauri Shankar Prasad, Advocate. For the State :- Sushri Shashi Bala Verma, A.P.P. ---------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE BIRENDRA PRASAD VERMA ---------- Dharnidhar Jha, B. P. Verma,JJ. There were originally four accused who were convicted in Sessions Trial No. 243/88/79/2002 by 4th Additional Sessions Judge, Nawada, by framing charges under Section 302/34 of the Indian Penal Code. Those four accused persons including one Rajo Ram, whose death caused the deletion of his name during the trial from the record on 16. 03. 2001 were charged together under Section 302/34 of the Indian Penal Code. The said accused Rajo Ram had been 2 charged under Section 302/34 as also Section 302/109 of the Indian Penal Code. 2. The judgment was delivered by the Presiding Officer-cum-Additional Sessions Judge, Fast Track Court, Nawada, on 31st January, 2003 and all the three appellants were held guilty of committing murder of Dinesh Singh under Section 302/34 of the Penal Code and each of them was sentenced to undergo rigorous imprisonment for life. No sentence of fine was imposed on any of the appellants. The appellants preferred the present criminal appeal for bringing in question the finding recorded by the trial court. 3. The prosecution case is contained in F.I.R.(Exihibit-1) of Ram Nandan Singh (P.W.8) which was recorded on 17. 09. 1986. It was stated by the informant that his mother had some exchange of hot words with the wife of appellant Karu Ram on 16. 09. 1986. Before that altercation, accused persons came to darwaza of the informant, where the informant, his brother Dinesh Singh and other family members were sitting. The appellant Karu Ram was armed with Farsa whereas other accused persons were armed with lathi. The deceased-accused Rajo Ram ordered Karu Ram to assault the deceased, upon which the appellant 3 Karu Ram was said to have given Farsa blow on the head of Dinesh Singh, injuring his head. 4. It was stated by the informant that the accused persons were his Gotias and there had been some altercation between the two sides in respect of certain wall in the morning on 09. 06. 1986 and as such the occurrence. 5. The informant stated that the deceased was lying in an unconscious state, and he could not bring him to the police station in absence of any conveyance. He himself came with his mother Dhaneshwari Devi (P.W.2) and villager Akhilesh Kumar (P.W.7) to the Police Station for lodging a report. 6. The Investigating Officer of the case has not been examined. Thus we have no evidence as to how the investigation proceeded. After the F.I.R. was drawn up, this much appears clear from the records that witnesses were examined during the course of investigation. The dead body was sent for Post Mortem examination after the death of the deceased and prior to that, deceased was shifted to Additional Primary Health Centre, Amba, somewhere in Aurangabad. After collection of sufficient materials, the accused persons were sent up for trial. 4 7. During the trial of the case, accused persons took the plea that the father of the informant died in harness while working in Government Press, Calcutta. The informant, as such was appointed on compassionate ground. The informant had undertaken to his employers to support and maintain other dependents of his father and in fact he was not maintaining them. As such, there was quarrel between the deceased and his brother and the informant had himself assaulted and killed Dinesh Singh. We find suggestion to above effect given to P.W.8 in paragraphs 18 and 28, P.W.6 in paragraphs 3 and 4 and, lastly to P.W.7 in paragraph 11. 8. The prosecution in support of its case examined as many as nine witnesses, out of whom P.W. 1 Rama Prasad and P.W.9, Krishna Prasad are witnesses of formal character. P.W.1 proved writings on F.I.R. and the fact that it was recorded by S.I. Ram Chandra Singh, Officer-in- Charge, of Hisua Police Station and, as such, F.I.R. was marked (Exhibit-1). P.W.9 Krishna Prasad had identified and proved the signature of the above noted Officer-in-Charge on the F.I.R. and that part of the document has been marked as Exhibit 4/1 and 4/2. The defence did not examine any witness 5 nor produced any document in support of their plea. 9. After considering the evidence on record, the learned trial court recorded the finding of guilt against the appellants and passed sentence as indicated at the outset of the judgment. 10. We have heard Smt. Nutan Sahay, learned amicus curiae who had been assisted by Mr. Gauri Shankar Prasad at the very fag end of the present hearing. Smt. Sahay read out the evidence of material witnesses like P.Ws. 2, 3, 6, 7 and 8 who are eye witnesses to the occurrence, besides reading out the evidence of P.Ws. 4 and 5, the two doctors, who held Post Mortem examination and attended to the injured respectively and issued their reports, i.e. Post Mortem Examination Report (Exhibit-2) and Injury Report (Exhibit-3) respectively. She has contended that there were many contradictions in the evidence of witnesses as regards their presence at the place of occurrence. To illustrate, Smt. Sahay has drawn our attention towards the evidence of P.W.2, Dhaneshwari Devi, mother of the deceased who has stated that she along with P.W.6 Meena Devi, wife of the deceased, were inside the house while they were cooking meal. She has further 6 contended that the informant has stated that wife of Dinesh Singh was also present at the time of occurrence but she was never produced for evidence. Besides, some of the witnesses have stated that P.W.6, Meena Devi, wife of the deceased was not at her darwaza, rather she was inside the house. 11. Our attention has also been drawn to the circumstances that solitary blow was weilded by appellant-Karu Ram in presence of the informant and other of his family members. But no one even intervened while the deceased was being assaulted. It was next contended that P.W.5 found multiple injuries on the dead body of Dinesh Singh which may be supporting the evidence that the appellants other than Karu Ram had also assaulted the deceased and Dinesh Singh had fallen down. But the Doctor (P.W.4) who held the Post Mortem examination did not even find a scratch mark or injury described at paragraph 2 and this contradiction in the medical opinions of the two doctor further compound the infirmities of the prosecution case. It was, lastly, contended by Smt. Sahay that at any rate and in any view, the conviction of the appellants under Section 302 of the Indian Penal Code was not justified. In the facts 7 and circumstances of the case, the appellants would not have been convicted and sentenced for committing the offence under Section 302/34 of the Indian Penal Code as they have not given any dagger blow and admittedly, the injured was not shifted for medical treatment after being assaulted to any Doctor so as to providing to him the minimum medical aid. Smt. Sahay contended that external circumstances could have hastened the death of the deceased. 12. As regards other appellants, Smt. Sahay submitted that prosecution evidence does not suggest that the appellants assaulted the deceased as would be revealed by the evidence of Doctors P.W.4, though, P.W.5 has stated that there were multiple abrasions on the person of the injured and they could be convicted under Section 323 of the Penal Code. 13. Sushri Shashi Bala Verma, learned Additional Public Prosecutor while resisting the submission noted above tooth and nail, cited provision of Section 300 of the Indian Penal Code and after referring to the evidence on the record submitted that a dangerous weapon like Farsa was in the hand of appellant Karu Ram and he assaulted the deceased with force as a result of 8 which scalp bone was fractured and on dissection haemotoma was found under the scalp with fracture of left parietal bone in the region of the injury, as a result of which death had occurred. It was an intended act and, as such, it could be covered by any of the first three clauses of Section 300 of Indian Penal Code to bring it into the ambit of the offence punishable under Section 302 of Indian Penal Code. Sushri Verma further contended that motive was there that there was a construction or repair of an existing platform by the deceased and the informant and that the accused did like it and wanted to obstruct it and such came with weapon and fully prepared for achieving the ultimate goal which indicated that they had acted in furtherance of their common intention. 14. Eye witnesses examined in the case were P.Ws.2, 3, 6 and 7, out of whom P.Ws. 3 and 7, namely, Umesh Singh and Akhilesh Kumar respectively are cited in the F.I.R. and they do not appear to be the family members of the deceased. Both the above witnesses have stated that they had seen the occurrence as soon as after picking up commotion emerging from the darwaza of the deceased they reached there. P.W. 3 has stated 9 that while he was sitting at his darwaza he rushed out and came near the house of the informant to see the occurrence. In paragraph 2 of his evidence he has stated that his house was situated west of the house of the deceased and he came running to the house of the informant. His claim does not appear such as not to be accepted. In fact there is no suggestion given that his house was situated at such a place so much far away from the place of occurrence or was at quite a distance intervened by a structure to obstruct seeing the occurrence. Similarly, P.W. 7, Akhilesh Kumar, appears a competent eye witness, and as such stated in his evidence that while he was sitting at the house of his uncle he heard some altercation coming out from the house of the deceased Dinesh Singh and he came there and saw the occurrence. Taking into consideration situation of the house of the uncle of P.W.7 and of house of the deceased has been stated by P.W. 7 in paragraph 4 in detail, it appears that the two houses were separated by a road and that the darawaza of the uncle of P.W.7 was facing west while the darwaza of the deceased was facing south. There was no intervention in between the houses. Thus we find that he is competent person who had seen the occurrence. 10 15. As regards other witnesses like P.Ws. 2, 6 and 8, they are the mother, wife and brother of the deceased and they were present at the place of occurrence i.e. their house. In the facts and circumstances, they were supposed to be there when the occurrence took place at 8 P.M. on 16th September, 1986. It could be early in the evening. Evidence of witnesses like P.W.8 and other of his family members indicates that a lantern was burning at the darwaza. That does not appear unusual to us, because in rural area no house specially a darwaza is kept in darkness under some orthodox belief. It may not be sacred, as per the village people, to keep their houses in darkness. This fact, above all, has not been challenged by suggesting to the above witnesses that there was no lantern was burning there on the dark night. There is some minor variations in the evidence as regard presence of Dhaneshwari Devi, P.W.2, and Meena Devi, P.W.6, at the darwaza. Meena Devi has stated that she was also present at the darwaza at the time of occurrence. That evidence has been supported by P.W.8 the informant of the case. Evidence of P.W. 2 Dhaneshwari Devi, aged about 60 years on the date of her deposition, was recorded by the trial court and she had been called 11 to the witness box under a very peculiar circumstance, thats for deposing about the murder of her son and has stated that she along with P.W. 6 Meena Devi was cooking meal inside the house. This contradiction was highlighted by the learned amicus curiae by submitting that the two witnesses were ladies and after having referred the statement of P.W. 6 in paragraph 9, it was contended that it was natural that both PWs 2 and 6 could be in the kitchen. We do not subscribe to the argument. 16. P.W.6, wife of the deceased, was cross-examined in two paragraphs on the conduct of herself as also her mother-in-law (P.W.2) in paragraph 7 of her evidence. She was put question on her own conduct, after her husband was assaulted and injured and she replied to the question that the dead body remained there for one to two hours and she kept wailing and weeping near the dead body and, further, that she wept by clinging to it. When it came to the turn of conduct by her mother-in-law, then her reply had been recorded in paragraph 9 of the evidence. She has stated that her mother-in-law had no blood mark on her as she did not go near the dead body. She volunteered that her mother-in-law had behaved as 12 an insane person after the occurrence. We have extracted the above evidence only to show as to what else can be expected of a mother who had lost her son. Therefore, when she was in the witness box facing the barrage of questions coming from the trained lawyer to answer, it must have disturbed her mental equilibrium. As such we do not attach much importance to the variance in the evidence of P.Ws. 2 and 6 on who was where. 17. The witnesses, P.Ws. 2, 3, 6, 7 and 8 have given the complete account of the occurrence. Their evidence appears natural and they do not appear making untrue statements or statements out of imagination. For this reason, the court below has placed reliance on the evidence of above witnesses 18. P.W.5, Dr. Ajay Kumar, who first attended upon the injured in the Additional Primary Health Centre found lacerated wound 3” x 1” x bone deep on the left side of the head of the deceased in addition to finding multiple bruises on his person. In his opinion, the incised wound was caused by weapon like Farsa which is a sharp cutting weapon which may not cause laceration. P.W.4, Dr. Ajay Kumar, who held the Post Mortem examination, and has stated he found only one 13 incised wound measuring 4" x 1/2 " x bone deep over left parietal region as a result of which there was a haematoma and the underlying brain matter with meniages was found damaged. But he did not find any bruises or lacerated wounds on the dead body of Dinesh Singh. Thus, the findings of the two Doctors supporting the prosecution story that Farsa blow was given on the head of the deceased could not be established. The oral evidence established that it was appellant-Karu Ram, who dealt Farsa blow. 19. It is true that witnesses have named other accused persons also to have assaulted the deceased by lathi. But the doctor holding Post Mortem examination was not finding any other injury except one which caused the death of the deceased. In that view of the matter, we have some reservations about the participation of other accused persons in furtherance of their common intention as a result of which benefit of doubt could accrue to appellants-Yogendra Ram and Anil Kumar @ Anil Ram and they shall have to be acquitted. 20. This fact brings us to consider the vital question on sentence which should be passed in this case. This is a case which came out the 14 dispute which already existed, for which the parties were quarrelling between them since many days. Just not on that particular day any specific work had been done rather it was to be carried out by the deceased or his family members on that the date of occurrence too. It appears that there was a exchange of hot words between the appellant Karu Ram and the mother of the deceased thats, Dhaneshwari Devi. Moreover, what appears from evidence is that Karu Ram came with Farsa and assaulted the deceased. But, after the deceased had fallen down, he did not attempt any further blows. The other circumstance which emerges out of the evidence and which appears admitted is that deceased was not shifted or taken to any doctor for treatment for quite sometimes. The informant and his mother P.W.2, Dhaneshwari Devi went to the Police Station leaving the deceased in his precarious condition and not-attended by a doctor which might also have hastened his death. 21. We find no justifiable reason for the said appellant-Karu Ram for wielding a weapon like Farsa giving a blow on such vital part of the body of the deceased like head. He must be assumed to know the consequence of his act. So the knowledge that his act being so dangerous, may be causing 15 death or grievous bodily injury which may cause death and that would bring the offence of Karu Ram into the category of an offence punishable under Section 304 II of the Indian Penal Code. 22. The period of detention of appellant- Karu Ram has now come to seven years. We propose to impose upon him a sentence of eight years under Section 304 II of the Indian Penal Code. He shall be released from custody after completion of total number of eight years he had remained in custody. 23. With the above modification in the sentence of Karu Ram, his appeal is dismissed. The appellants-Jogendra Ram and Anil Kumar @ Anil Ram are on bail and they are discharged from the liabilities of bail bond. The appeal stands allowed in their respect. 24. Let the copy of the first page and the last page of the present judgment be handed over to Smt. Nutan Sahay, Amicus curiae, for needful. Patna High Court, The 11th March, 2010, N.A.F.R/m.p. (Dharnidhar Jha, J.) (Birendra Prasad Verma,J.)