IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.611 of 2007 Against the judgment/ order dated 28.03.2007/ 30.03.2007 passed by Additional Sessions Judge, F.T.C. V, Saran at Chapra in Sessions Trial No. 332/04 =========================================================== Raj Kumar @ Ram Kumar @ Raj Kumar Ram @ Bhuar, son of Deolal Ram, resident of village Hariharpur Majhawalia, P.S. Baniyapur, district Saran .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : M/s. Rajesh Kumar Singh, Satyendra Kumar Singh, Advocates. For the State : Mr. Ashwani Kumar Sinha, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE V.N. SINHA) Date:
09. 09-2013 This appeal is directed against the judgment/ order dated 28.03.2007/ 30.03.2007 passed by Additional Sessions Judge, F.T.C. V, Saran at Chapra in Sessions Trial No. 332/04 whereunder sole accused/ appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life.
2. Prosecution case, in brief, according to the fardbeyan of informant Chandeshwar Ram, P.W. 2 recorded by S.I. Arjun Lal Officer in charge Baniyapur P.S. on 26.04.2003 at 9.35 P.M. in the Referral Hospital, Baniyapur is that on 26.04.2003 at about 7 P.M. he was returning home from Puchhri market, near the house on the road found Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 2 son of the appellant and grand-son of Nathuni Ram quarrelling with each other. Informant chided the children asked them to go back home, as on the road, in the evening time they were likely to meet with accident. Some time thereafter appellant came to the house of informant and began to altercate as also abuse him. Cousin of the informant Parmeshwar Ram (deceased) intervened in favour of informant, which infuriated the appellant, who took out dagger from his possession and gave a single blow on the left side of chest of Parmeshwar Ram causing grievous injury. Parmeshwar Ram was thereafter carried to the Referral Hospital, Baniyapur on a trekker, where he was declared brought dead.
3. In the light of the fardbeyan (Ext.
3) Baniyapur P.S. Case No. 50/03 was registered on 26.04.2003 for the offence under Section 302 I.P.C. with direction to S.I. Ram Pravesh Singh, P.W. 8 to investigate the case. Before P.W. 8 could take up investigation scribe of the fardbeyan prepared inquest report in presence of two independent witnesses i.e. P.W. 6 Adalat Ram and Satyendra Kunwar (not examined). Having prepared the inquest report scribe of the fardbeyan also sent the dead body for post mortem to Sadar Hospital, Chapra, which was conducted by P.W. 7 Dr. Shambhu Nath Singh. Later, Investigating Officer P.W. 8 visited the place of occurrence, collected the blood stained earth vide seizure list, Ext. 4 in presence of P.W. 5 Ashok Ram and examined the witnesses of the occurrence. Having Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 3 conducted the investigation and collected the post mortem report Investigating Officer, P.W. 8 submitted charge-sheet against the appellant. In the light of the charge-sheet cognizance was taken and after supply of police paper case was committed to the court of sessions.
4. During trial prosecution examined 8 witnesses, namely, P.W. 1 Kalawati Devi, wife of the deceased. P.W. 2 Chandeshwar Ram cousin brother of the deceased and informant. P.W. 3 Baijnath Ram, son of the deceased. P.W. 4 Chandrawati Devi, neighbour of the deceased. P.W. 5 Ashok Ram, witness of the seizure list seizing blood stained earth. P.W. 6 Adalat Ram, signatory to the inquest report. P.W. 7 Dr. Shambhu Nath Singh who conducted post mortem on the dead body of the deceased. P.W. 8 Ram Pravesh Singh, Sub-Inspector who is the Investigating Officer of the case.
5. We now proceed to consider the details of the prosecution evidence. P.W. 1 Kalawati Devi is the wife of the deceased who has deposed in court that on the day, time of occurrence she was present in her house and was cooking meal. Her husband has come back to house after serving as labourer during the day and was sitting in the house, her younger brother in law, the informant had also returned to the house and was changing his cloth. At the same time appellant also came to the house of P.W. 1, climbed the entrance and began to abuse in connection with preceding quarrel between the son of Amerika Ram and Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 4 daughter of appellant, which had taken place in the same evening and the informant had asked the children not to quarrel on the road. Husband of P.W. 1 joined the altercation and asked the appellant not to abuse. In retaliation appellant took out the dagger, pierced the same on the left side of the chest of her husband Parmeshwar Ram leading to his fall. Appellant, however, managed to escape after pulling out the knife. It is further stated by P.W. 1 that after her husband became injured a vehicle was arranged and he was carried to Baniyapur Referral Hospital where doctor declared him brought dead. During cross-examination evidence of P.W. 1 has not been shaken and she appears to be a truthful eye witness of the occurrence.
6. P.W. 2 Chandeshwar Ram is the informant of the case who deposed that while he was returning from Puchhri market to his home in the village saw son of Amerika Ram and daughter of appellant quarrelling on the road in the evening. Having chided the two children, informant asked them to go back to their home as on the road they were likely to meet with an accident. Having chided the two children informant and the children came to their respective home(s). Appellant came to the house of informant and began to abuse. Younger brother of the informant i.e. the deceased asked the appellant to restrain himself. The appellant protested by saying that he is trying to become arbitrator and having observed as above pierced the dagger in the left side of chest Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 5 of the deceased leading to his fall. Informant tied the wound (bandaged) with the help of cloth (Lungi) and took the injured to the hospital where he was declared brought dead. Informant thereafter recorded his fardbeyan in the hospital itself and having found the contents of the fardbeyan to be true put his L.T.I. over the same. During cross- examination evidence of informant has not been shaken and he also appears to be a truthful witness of the occurrence.
7. P.W. 4 Chandrawati Devi is the neighbour of the informant and also an eye witness of the occurrence. P.W. 4 stated in her evidence that occurrence took place 1 ½ years earlier. At the time of occurrence P.W. 4 was in her house, hearing hullah came out from her house near the door of Amerika Ram and saw that the appellant gave dagger blow on the chest of Parmeshwar Ram (deceased), who fell down but the appellant managed to escape with the dagger. The injured was taken to Baniyapur Hospital on a vehicle where he was declared brought dead by the doctor. In paragraph 4 of his evidence P.W. 4 has further deposed that cause behind the occurrence is that son, daughter of Amerika Ram and the appellant were quarrelling, informant asked them not to quarrel and go back home which was not appreciated by the appellant who came to protest and was abusing. In paragraph 1 of his cross-examination witness has stated that the deceased Parmeshwar Ram is her village cousin and her parental home is in the place of occurrence Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 6 village. From further cross-examination of the witness it does not appear that evidence of the witness recorded in her examination in chief has been shaken in any manner and is worthy of acceptance.
8. P.W. 3 Baijnath Ram is the son of the deceased but from his evidence it is quite evident that on the date of occurrence he was not present in the place of occurrence village and after having come to know about the occurrence came to the village and learnt about the occurrence.
9. P.W. 5 Ashok Ram is the witness of seizure of the blood stained earth from the place of occurrence and during evidence confirmed that Investigating Officer visited the place of occurrence, collected the blood stained earth and prepared seizure list, over which he also put his L.T.I. In paragraph 3 of the cross-examination the witness further stated that Investigating Officer had taken his L.T.I. on a blank paper but clarified that it is incorrect to suggest that Investigating Officer had not collected blood stained earth in his presence.
10. P.W. 6 Adalat Ram is a witness who put his signature on the inquest report, which he has proved as Ext. 1/1.
11. P.W. 7 is Dr. Shambhu Nath Singh who conducted post mortem on the dead body of deceased Parmeshwar Ram on 24.07.2003 at 11.05 A.M. and found the following anti-mortem injury : “(a) external- one penetrating wound about 1 ½” left to lower border of sternum 1” X ½” X cavity deep.” Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 7 According to P.W. 7 cause of death of Parmeshwar Ram was due to haemorrhage and shock resulting from injury found on the person of the deceased which was caused by sharp pointed weapon. P.W. 7 also proved the post mortem report, Ext.
2. During cross-examination P.W. 7 clarified that Chhura (Dagger) is a penetrating and sharp cutting weapon. The injury caused on the person of the deceased is possible by penetrating the Chhura (Dagger).
12. P.W. 8 Ram Pravesh Singh is the Investigating Officer of the case, who on the date of occurrence i.e. 26.04.2003 served as Sub- Inspector attached with Baniyapur P.S. Arjun Lal Officer in charge of said P.S. asked him to investigate the case. He further stated that fardbeyan of the case was recorded by the Officer in charge Arjun Lal, which has been proved by the Investigating Officer as Ext.
3. In paragraph 3 of his evidence Investigating Officer has stated that the place of occurrence of the instant case is the vacant land of Nathuni Ram measuring 50 ft. X 4.ft. situate east of the house of accused Raj Kumar Ram in the middle of village Majhwalia Khurd from where he collected blood stained earth and prepared seizure list in his own handwriting and proved the same as Ext.
4. In paragraph 4 of his evidence Investigating Officer stated that house of the informant is 100 yards away from the aforesaid vacant land. North of the vacant land is the house of Nathuni Ram. In the south there is vacant land of Deolal Ram father of the Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 8 appellant. East, west of the vacant land is the house of Dwarika Ram and Deolal Ram father of the appellant. From paragraph 5 of the evidence of Investigating Officer, it appears that he examined the witnesses Kalawati Devi, Dewanti Devi, Chandrawati Devi and they supported the occurrence. Investigating Officer has also confirmed that inquest report of the deceased was prepared by the Officer in charge Arjun Lal in his own handwriting and thereafter the deceased was sent for post mortem. Investigating Officer further stated in the same paragraph that charge- sheet was submitted later showing the appellant as absconder.
13. Learned counsel for the appellant has questioned the conviction with reference to the prosecution evidence, as according to him the assault on the deceased has taken place on the door of the informant where the appellant came after he learnt about the quarrel and while he was altercating with the informant the deceased interfered in support of his cousin brother but from the evidence of Investigating Officer, P.W. 8 paragraph 3, it is quite evident that the place of occurrence is the vacant land of Nathuni Ram situate east of the house of the informant and not the door of the informant. In the light of the aforesaid discrepancy/ contradiction in the evidence of the prosecution eye witnesses i.e. P.Ws. 1, 2 and 4 and the Investigating Officer, P.W. 8, it is submitted that the place of occurrence as described by the prosecution witnesses is not the place of occurrence found by the Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 9 Investigating Officer and is sufficient to disbelieve the prosecution story.
14. Learned counsel for the appellant next submitted that even if place, manner of occurrence is not disbelieved on the ground of discrepancy/ contradiction in the evidence of the prosecution witnesses and the Investigating Officer, P.W. 8 with reference to the place of occurrence, the conviction of the appellant for the offence under Section 302 I.P.C. is wholly disproportionate to the allegation and evidence led against him. According to learned counsel appellant was altercating with the informant and he had no intention to assault the deceased, who intervened in the altercation in support of his cousin brother, the informant and as the appellant had no intention to assault the deceased did not repeat the blow, the conviction under Section 302 I.P.C. is required to be converted into Section 304 Part II I.P.C. In support of the aforesaid submission learned counsel for the appellant has relied on the judgment of the Supreme Court in the case of Tholan Vs. State of Tamil Nadu, (1984) 2 Supreme Court Cases 133, paragraph 12 and Gurmail Singh and others Vs. State of Punjab, (1982) 3 Supreme Court Cases 185, paragraph 7.
15. To appreciate the submission of the learned counsel for the appellant, it is necessary to notice the facts of the case of Tholan (supra). From paragraph 3 of the judgment it appears that appellant Tholan was aggrieved by the conduct of K.G. Rajan and P.W. 4 Chinnu Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 10 who were running a chit as the appellant and his brother gave a bid at the auction for a chit paid the amount, wanted loan, which was refused. To protest the conduct of those who refused loan to the appellant, appellant came to Sampat complaining against the organizers of the chit. While complaining against the organizers of the chit appellant was in front of the house of one Palaniammal who on hearing the shout of the appellant asked him to go away. Appellant in turn abused Palaniammal. While the appellant was abusing Palaniammal deceased Sampat came out of his house and cautioned the appellant not to indulge in abusive language as ladies were present and told him to go away. The appellant questioned the authority of deceased Sampat to whom he had come complaining about the conduct of those who were running the chit and had refused him loan. Being aggrieved by the conduct of Sampat appellant stabbed him on the right side of the chest and pushed the deceased to a distance of 25 ft., left him there and escaped. In the aforesaid facts Supreme Court in paragraph 12 of the judgment observed that even if Exception I to Section 300 I.P.C. is not attracted, the requisite intention cannot be attributed to the appellant that he ever desired to kill the deceased Sampat and converted the conviction of the appellant from the offence under Section 302 to 304 Part II of the Indian Penal Code with direction that sentence of 5 years would be quite adequate. The other case relied upon by the learned counsel for the Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 11 appellant Gurmail Singh (supra) is also on similar lines.
16. Counsel for the State, on the other hand, supported the impugned judgment and submitted that appellant having come armed with dagger was quite clear in his intention to assault, the conviction recorded is not required to be interfered with by this Court. As regards submission no. 1 made on behalf of the appellant that place of occurrence as described by the prosecution witnesses and the one found by the Investigating Officer is different, learned counsel for the State submitted with reference to the evidence of Investigating Officer in paragraph 4 of his evidence that the Investigating Officer has categorically observed that house of the informant is at a distance of 100 yards from the vacant place of occurrence land, north whereof is the house of Nathuni Ram. South of the vacant land is the land of the appellant. In the east of the place of occurrence land is the house of Dwarika Ram. It is, thus, quite evident from the evidence of Investigating Officer in paragraphs 3, 4 that place of occurrence land is in the midst of the village situate very close to the house of the informant and the other villagers. As per the prosecution story the altercation had begun at the door of the informant. Deceased joined the altercation supporting his cousin brother, which prompted the appellant to assault in his chest by dagger leading to the fall of the deceased, may be on the door or 100 yards away in the vacant land of Nathuni Ram. In view of Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 12 totality of the prosecution evidence there does not appear any discrepancy about the place of occurrence in the evidence of the prosecution witnesses or the Investigating Officer.
17. In view of our discussion above, we are satisfied that the prosecution witnesses including Investigating Officer are quite consistent in their evidence about the manner, place of occurrence of the assault and submission raised by the learned counsel for the appellant with regard to point no. 1 does not merit consideration.
18. Now coming to the second submission that appellant had no intention to assault the deceased as he had come to the door of the informant to altercate with him as he has chided his daughter who was earlier in the evening quarrelling with the son of Amerika Ram on the road and had asked them to go to their houses. It so happened that while the altercation was on deceased intervened in the altercation to support his cousin brother, the informant which infuriated the appellant, who observed that he is trying to become arbitrator and having observed so proceeded to assault him with dagger causing injury on the chest of the deceased leading to his death. It is evident from the prosecution case that appellant was having altercation with the informant, the deceased intervened to support the informant, intervention infuriated the appellant who observed against him that he is trying to become arbitrator in the dispute and then assaulted him, which is indicative of the fact that on the Patna High Court CR. APP (DB) No.611 of 2007 dt.09-09-2013 13 spur of moment the occurrence took place on account of sudden intervention by the deceased to support the informant. In our opinion, the case is covered by Exception IV of Section 300 of the Indian Penal Code and does not amount to culpable homicide amounting to murder.
19. Accordingly, this appeal is allowed. The conviction of the appellant for an offence under Section 302 I.P.C. and the sentence of life imprisonment are set aside. The appellant is convicted for having committed an offence under Section 304 Part II, I.P.C. and is sentenced to suffer rigorous imprisonment for 8 years. (V.N. Sinha, J) Rajesh/- (Rajendra Kumar Mishra, J)