Sudhu Bhogta Vs. State of Bihar - Court Judgment

Excerpt:
(a) indian penal code, 1860, sections 301 and 304, part ii - murder by inflicting are blow on head--at 8 a.m. in front of deceased's 'bari'--mother and wife of deceased who were inside 'bari' came out and sow accused--their evidence not shaken in cross examination, except on point of inflicting more than one blow-high court ignored this contradiction, putting it within the term 'exaggeration'--non-examination of i.o. also not found fatal as there was no dispute about place of occurrence and seizure of blood stained earth etc.--as there was full opportunity to inflict more than one blow, but accused inflicted only one blow--high court converted conviction under section 302 into section 304, part ii and reduced sentence to period (more than 6 1/2 years) already undergone.(b) maxim - 'fallacious in uno, fallacious in omnibus'--applicability--scope of--maxim is not applicable in criminal cases.(c) criminal trial - non-examination of investigating officer-not always fatal-in the instant case, as there was no dispute about place occurrence, seizure of blood stained earth and other incriminating material, recording of fir and other necessary facts--non-examination of i.o. not found fatal as no prejudice was caused to accused due to non-examination. - n.n. singh, j.1. this appeal has been preferred against the order of conviction and sentence passed by the addl. sessions judge, simdega, in sessions trial no. 61 of 1990 against the appellant on 4.3.1994 by which he convicted the appellant under section 302 of indian penal code and sentenced him to undergo rigorous imprisonment for life thereunder.2. the prosecution case, in short, as mentioned in the fard beyan (ext. 4) of the informant ram chandra bhogta (since deceased) is that on 3.1.1990 at about 8.00 a.m., when the informant ram chandra bhogta was cutting soil in the field adjacent to the 'bari' of dashrath bhogta (deceased), he saw the appellant going with an axe in his hand in the bari of dashrath bhogta, where he was engaged in repairing the fencing. the further case of the prosecution is that this appellant gave an axe blow on the head of dashrath bhogta, as a result of which he fell down on the ground and that the informant and aghnu bhogta (not examined) rushed there and that the mother and the wife of dashrath bhogta also came there. at this the appellant fled away with the axe and they saw dashrath bhogta lying dead. the informant ramchandra bhogta gave his fard beyan (ext. 3) at 2.00 p.m. at the place of occurrence itself, on which, a formal fir (ext. 3) was drawn up and kolebira p.s. case no. 1 of 1990 was registered under section 302 of the indian penal code, against this appellant. after due investigation, ' the appellant was charge sheeted. the case was committed to the court of sessions and a charge under section 302 of the indian penal code was framed against this appellant and he was put on trial.3. the defence of the appellant appears that he has been falsely implicated in this case. after trial, the addl. sessions judge, simdega convicted the appellant as aforesaid.4. in course of trial, 7 pws were examined by the prosecution. pw 1, babulal bhogta, a seizure list witness was declared hostile by the prosecution. however, he had proved his signature ext. 1 and that of another witness hem sagar singh (ext. 1/1) on the seizure list. pw 2, hem sagar singh, is another seizure list witness. pw 6, manager and pw 7 narain mahato are formal witnesses, who proved formal fir ext. 3 and fard beyan (ext. 4) respectively. pw 5 is doctor a.k. singh, who held post mortem examination on the dead body of dasshrath bhogta and he proved his post mortem report (ext. 2). pw 3, budhmi devi is the widow of the deceased dashrath bhogta and pw 4 is hazim bhogtain, the mother of the deceased, who claims to be an eye-witness of the alleged occurrence. the investigating officer of this case has not been examined and as stated above, the informant ramchandra bhogta could not be examined as he had since died. pw 3, budhni devi claimed that at the time of the occurrence, she was also inside her 'bari' along with her mother-in-law (pw4) for uprooting raddish, while her husband dashrath bhogta was repairing the fencing of the 'bari' and that the appellant came with an axe in his hand and gave an axe-blow on the head of her husband, as a result of which he (dashrath bhogta) fell down. she further claimed that thereafter the appellant gave further blow to her husband with the rear portion of the axe. she stated that the appellant had a land dispute with her husband and that after assault, the appellant fled away with his axe. in her cross-examination. pw3 further stated that the husband's brother aghan was ploughing land in a nearby field. the said aghan has not been examined as he is reported to have left the village and is residing somewhere in sambalpur, the address of which was not known to her. she also stated that the informant ranchandra bhogta has also died. she denied that at the time when the informant raised alarm, she was inside her house, or that she was not in her 'bari'. giving the description of the bari, she stated that it was 50 yards long formeast to west and its breadth was to the similar extent and that the entrance in the bari was from west. she further stated that there husband was repairing the fencing in the southern portion and that she and her mother-in-law were in the eastern side of the bari. she has been cross-examined at length, but nothing has come out in her cross-examination to discredit her statements. pw4, hazim, the mother of the deceased, has fully supported the evidence of pw3 and stated that she alongwith her daughter-in-law, budhni (pw3) had gone to the bari to uproot raddish and that she had seen this appellant giving axe blows on the head of her son. dashrath, as a result of which he fell down and died. she also stated that the bari was 50 yards x 50 yards and that the entrance of the bari was from west and at that time, dashrath was repairing his southern fencing. she further stated that raddish was planted in. the eastern side of the bari and they were uprooting the raddish towards the eastern side, when this appellant came and gave the axe blows. she had fully stood the lengthy cross-examination made on behalf of the defence. she also explained that aghan had left the village the same day and that his where about is not known. this is to explain the non-examination of aghan bhogta, who is a charge sheeted witness. on careful perusal of the evidence of pws 3 and 4, we find that in spite of searching cross-examination, the defence could not succeed in exciting any favourable answer so as to persuade us to hold that their evidence was unworthy of credit. the claim of the pw 3 regarding inflicting of more than one blow of axe by this appellant can be termed as exaggeration in view of the evidence of pw 5, the doctor who found only one injury on the person of the deceased.5. pw 5, dr. a.k. singh stated to have held post mortem examination on the dead body of dashrath bhogta on 4.1.1990 and claimed to have found the following ante mortem injuries:-(i) incised wound on occipital area of scale size 7cm x 0.5 cm., scalp deep with fracture of occipital bone. on opening of the skull, blood clot was found between the skull and the membrane intact. on opening of membrane, intra cerebral hemorrhage was found.pw 5 opined that the death was caused by coama due to head injury caused by sharp cutting weapon, such as tangi. he further opined that the injury was sufficient to cause the death. he proved the post mortem examination (ext. 2).6. the investigating officer of the case has not been examined, as he died subsequent to the recording of the fard beyan. however, his fard beyon (ext. 4) finds corroboration from the evidence of pw 3 and 4, as discussed above.7. i have also mentioned above that in view of the evidence of pw '5 regarding existence of only one injury on the head of the deceased, the claim of pw3 regarding the appellant inflicting more then one injury of axe on the deceased can be treated as an exaggeration as the maxim' fallacious in uno, fallacious in omnibus' is not applicable in criminal trial. no doubt, the investigating officer has not been examined in this case, non examination of investigating officer in certain circumstances is fatal to the prosecution case, but where the place of occurrence is located and no prejudice is caused to the defence, non-examination of the investigating officer is not very material. in this case, the place of occurrence has been described in the evidence of pws 3 and 4. pw 2 atleast has proved the seizure of blood stained earth from the place of occurrence and as discussed above, ext. 4 the fard beyan, even without examination of its maker, who is since dead has been corroborated by the evidence of pws 3 and 4 fully.8. now the question arise as to whether the intention of the appellant was to cause the death of the deceased when only one injury was inflicted even though, it is shown to be sufficient in ordinary course of nature to cause death.the question still arises that even though the appellant had a chance and opportunity to inflict more injuries, yet he did not avail of it, can an inference be made that the was injury intended to be inflicted. the appellant used the axe, a weapon, for inflicting the injury and that too, on the head of the deceased. it goes to establish that he had least the knowledge that he is likely, by his such act, to cause death and it indicated that he must have the knowledge that such an injury caused by him would result in the following probabilities:(a) that the injured might die, as a result of such injury; or(b) the injured might survive.9. when two such alterations are available, it cannot be said that the appellant caused the injury with the intention to kill the deceased. in identical cases of inflicting one injury without any pre-planning, in jagrup singh's case 1981 (3) scc 616; and kulwant raoy's case 1981 (4) scc 245, the supreme court altered the conviction under section 304/part-ii, holding that having regard to all the circumstances of the case, it could not be said that the injury, which was inflicted was intended to be inflicted. in this view of the matter, i find it a fit case in which the conviction of the appellant be altered to under section 304 (part-ii) of the indian penal code. the appellant is in custody since 4.1.1990 and has served more than 6 1/2 years as under trial prisoner. in my view, the ends of justice would be met if his conviction under modified section 304 (part-ii) is reduced to the period already undergo by the appellant.10. in the result, this appeal is dismissed with the modification in the conviction and sentence, as discussed above.

Judgment:

N.N. Singh, J.

1. This appeal has been preferred against the order of conviction and sentence passed by the Addl. Sessions Judge, Simdega, in Sessions Trial No. 61 of 1990 against the appellant on 4.3.1994 by which he convicted the appellant under Section 302 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for life thereunder.

2. The prosecution case, in short, as mentioned in the Fard Beyan (Ext. 4) of the informant Ram Chandra Bhogta (since deceased) is that on 3.1.1990 at about 8.00 a.m., when the informant Ram Chandra Bhogta was cutting soil in the field adjacent to the 'Bari' of Dashrath Bhogta (deceased), he saw the appellant going with an axe in his hand in the Bari of Dashrath Bhogta, where he was engaged in repairing the fencing. The further case of the prosecution is that this appellant gave an axe blow on the head of Dashrath Bhogta, as a result of Which he fell down on the ground and that the informant and Aghnu Bhogta (not examined) rushed there and that the mother and the wife of Dashrath Bhogta also came there. At this the appellant fled away with the axe and they saw Dashrath Bhogta lying dead. The informant Ramchandra Bhogta gave his fard beyan (Ext. 3) at 2.00 p.m. at the place of occurrence itself, on which, a formal FIR (Ext. 3) was drawn up and Kolebira P.S. Case No. 1 of 1990 was registered under Section 302 of the Indian Penal Code, against this appellant. After due investigation, ' the appellant was charge sheeted. The case was committed to the court of sessions and a charge under Section 302 of the Indian Penal Code was framed against this appellant and he was put on trial.

3. The defence of the appellant appears that he has been falsely implicated in this case. After trial, the Addl. Sessions Judge, Simdega convicted the appellant as aforesaid.

4. In course of trial, 7 PWS were examined by the prosecution. PW 1, Babulal Bhogta, a seizure list witness was declared hostile by the prosecution. However, he had proved his signature Ext. 1 and that of another witness Hem Sagar Singh (Ext. 1/1) on the seizure list. PW 2, Hem Sagar Singh, is another seizure list witness. PW 6, Manager and PW 7 Narain Mahato are formal witnesses, who proved formal FIR Ext. 3 and Fard Beyan (Ext. 4) respectively. PW 5 is Doctor A.K. Singh, who held post mortem examination on the dead body of Dasshrath Bhogta and he proved his post mortem report (Ext. 2). PW 3, Budhmi Devi is the widow of the deceased Dashrath Bhogta and PW 4 is Hazim Bhogtain, the mother of the deceased, who claims to be an eye-witness of the alleged occurrence. The investigating officer of this case has not been examined and as stated above, the informant Ramchandra Bhogta could not be examined as he had since died. PW 3, Budhni Devi claimed that at the time of the occurrence, she was also inside her 'Bari' along with her mother-in-law (PW4) for uprooting raddish, while her husband Dashrath Bhogta was repairing the fencing of the 'Bari' and that the appellant came with an axe in his hand and gave an axe-blow on the head of her husband, as a result of which he (Dashrath Bhogta) fell down. She further claimed that thereafter the appellant gave further blow to her husband with the rear portion of the axe. She stated that the appellant had a land dispute with her husband and that after assault, the appellant fled away with his axe. In her cross-examination. PW3 further stated that the husband's brother Aghan was ploughing land in a nearby field. The said Aghan has not been examined as he is reported to have left the village and is residing somewhere in Sambalpur, the address of which was not known to her. She also stated that the informant Ranchandra Bhogta has also died. She denied that at the time when the informant raised alarm, she was inside her house, or that she was not in her 'Bari'. Giving the description of the Bari, she stated that it was 50 Yards long formeast to west and its breadth was to the similar extent and that the entrance in the bari was from west. She further stated that there husband was repairing the fencing in the southern portion and that she and her mother-in-law were in the eastern side of the Bari. She has been cross-examined at length, but nothing has come out in her cross-examination to discredit her statements. PW4, Hazim, the mother of the deceased, has fully supported the evidence of PW3 and stated that she alongwith her daughter-in-law, Budhni (PW3) had gone to the Bari to uproot raddish and that she had seen this appellant giving axe blows on the head of her son. Dashrath, as a result of which he fell down and died. She also stated that the Bari was 50 yards X 50 yards and that the entrance of the Bari was from west and at that time, Dashrath was repairing his southern fencing. She further stated that raddish was planted in. the eastern side of the bari and they were uprooting the raddish towards the eastern side, when this appellant came and gave the axe blows. She had fully stood the lengthy cross-examination made on behalf of the defence. She also explained that Aghan had left the village the same day and that his where about is not known. This is to explain the non-examination of Aghan Bhogta, who is a charge sheeted witness. On careful perusal of the evidence of PWs 3 and 4, we find that in spite of searching cross-examination, the defence could not succeed in exciting any favourable answer so as to persuade us to hold that their evidence was unworthy of credit. The claim of the PW 3 regarding inflicting of more than one blow of axe by this appellant can be termed as exaggeration in view of the evidence of PW 5, the doctor who found only one injury on the person of the deceased.

5. PW 5, Dr. A.K. Singh stated to have held post mortem examination on the dead body of Dashrath Bhogta on 4.1.1990 and claimed to have found the following ante mortem injuries:-

(i) Incised wound on occipital area of scale size 7cm x 0.5 cm., scalp deep with fracture of occipital bone. On opening of the skull, blood clot was found between the skull and the membrane intact. On opening of membrane, intra cerebral hemorrhage was found.

PW 5 opined that the death was caused by coama due to head injury caused by sharp cutting weapon, such as tangi. He further opined that the injury was sufficient to cause the death. He proved the post mortem examination (Ext. 2).

6. The investigating officer of the case has not been examined, as he died subsequent to the recording of the fard beyan. However, his fard beyon (Ext. 4) finds corroboration from the evidence of PW 3 and 4, as discussed above.

7. I have also mentioned above that in view of the evidence of PW '5 regarding existence of only one injury on the head of the deceased, the claim of PW3 regarding the appellant inflicting more then one injury of axe on the deceased can be treated as an exaggeration as the maxim' fallacious in uno, fallacious in omnibus' is not applicable in criminal trial. No doubt, the investigating officer has not been examined in this case, non examination of investigating officer in certain circumstances is fatal to the prosecution case, but where the place of occurrence is located and no prejudice is caused to the defence, non-examination of the investigating officer is not very material. In this case, the place of occurrence has been described in the evidence of PWs 3 and 4. PW 2 atleast has proved the seizure of blood stained earth from the place of occurrence and as discussed above, Ext. 4 the fard beyan, even without examination of its maker, who is since dead has been corroborated by the evidence of PWs 3 and 4 fully.

8. Now the question arise as to whether the intention of the appellant was to cause the death of the deceased when only one injury was inflicted even though, it is shown to be sufficient in ordinary course of nature to cause death.

The question still arises that even though the appellant had a chance and opportunity to inflict more injuries, yet he did not avail of it, can an inference be made that the was injury intended to be inflicted. The appellant used the axe, a weapon, for inflicting the injury and that too, on the head of the deceased. It goes to establish that he had least the knowledge that he is likely, by his such act, to cause death and it indicated that he must have the knowledge that such an injury caused by him would result in the following probabilities:

(a) that the injured might die, as a result of such injury; or

(b) the injured might survive.

9. When two such alterations are available, it cannot be said that the appellant caused the injury with the intention to kill the deceased. In identical cases of inflicting one injury without any pre-planning, in Jagrup Singh's case 1981 (3) SCC 616; and Kulwant Raoy's case 1981 (4) SCC 245, the Supreme Court altered the conviction under Section 304/Part-II, holding that having regard to all the circumstances of the case, it could not be said that the injury, which was inflicted was intended to be inflicted. In this view of the matter, I find it a fit case in which the conviction of the appellant be altered to under Section 304 (Part-II) of the Indian Penal Code. The appellant is in custody since 4.1.1990 and has served more than 6 1/2 years as under trial prisoner. In my view, the ends of justice would be met if his conviction under modified Section 304 (Part-II) is reduced to the period already undergo by the appellant.

10. In the result, this appeal is dismissed with the modification in the conviction and sentence, as discussed above.