JUDGMENT
Narinder Singh Rao, J.
1. Mangan Rabidas, resident of village Maliachak, district Godda, the appellant, stands convicted under Section 304 of the Indian Penal Code (hereinafter referred to as the Code) and sentenced to undergo rigorous imprisonment for 10 years. He has also been sentenced to undergo rigorous imprisonment for two years under Section 354 of the Code, and rigorous imprisonment for one year under Section 323 of the Code. His sentences have been ordered to run concurrently. Feeling aggrieved, he has preferred this appeal through jail.
2. Mahendra Rabidas, the deceased, was the husband of Champa Devi P.W. Parmod Rabidas, P.W. is their son. Their house in village Maliachak is close to that of the appellant. The house of Rajendra Rabidas (P.W. 3), Auladi Ansari (P.W. 4), Seikh Bashir (P.W. 5) and Md. Ibrahim (P.W. 8) are also nearby.
3. The prosecution version, in brief, is that since about three months before the date of occurrence (31.8.1987), the appellant had started entertaining evil designs towards Champa Devi, P.W. However, she was hot responding to his advances towards her. On 31.8.87 at about 8 a.m., when Champa Devi, was all by herself in the house, the appellant had trespassed into the same. He wanted to commit rape upon Champa Devi, P.W., but her resistance offered had made that attempt foiled. The alarm raised by Champa Devi, P.W. had attracted to the house her son Parmod Rabidas, then aged about 8 years. The appellant had given this witness a few slaps. The appellant had continued struggling with Champa Devi for satisfying his lust. The latter had continued thwarting all such efforts. Her alarm had also brought to the place of occurrence neighboured like Rajendra Rabidas, Auladi Ansari, Seikh Bashir and Md. Ibrahim, P.Ws. In the meanwhile, Parmod Rabidas had brought to the scene his father Mahendra Rabidas from the place of his work. On seeing him, the appellant had fled away inside his house. Champa Devi, P.W., and for that matter other witnesses collected had told Mahendra Rabidas about the crime committed by the appellant in his absence. Thereafter Mahendra Rabidas had gone to the appellant and lodged a protest about his misbehaviour towards Champa Devi in his absence. Instead of seeing reason, the appellant had started causing injuries to Mahendra Rabidas by giving thrust blows with his lathi. That had resulted in Mahendra Rabidas losing consciousness.
4. The prosecution version further proceeds that Champa Devi, P.W. and other had brought Mahendra Rabidas to Mahgama police station, situate at a distance of 14 K.M. where she had lodged her F.I.R. (Ext. 2) on 1.9.1987 at 1 P.M.. Unfortunately Mahendra Rabidas had died after a couple of days of the occurrence. Investigations were carried, and after completion of the same, the appellant chargesheeted.
5. Although the prosecution had examined 13 witnesses for providing its case, the success of the same hinges on the evidence of P. Ws. 3, 4, 5 and 7, 8, 9, all eye witnesses. Kauleshwar Das (P.W. 2) and Ram Sunder Yadav (P.W. 6 and 13) are formal witnesses. They had proved the signatures of the scribe of the F.I.R. and other police papers. Narayan Paswan (P.W. 11) is the Chowkidar and he had learnt about the occurrence from the concerned P.Ws. immediately after the occurrence. The evidence of Naresh Rabidas (P.W. 12) is also formal. He had attested the inquest report.
6. The Apellant, in his examination, had denied the prosecution allegation and stated that he was innocent. He had not examined any witness in his defence.
7. Learned Counsel for the parties have been heard, and records carefully gone through.
8. It has remained undisputed that Maheudra Rabidas has received injuries on 31.8.1987 at about 8 a.m. near his house and that of the appellant. There is also no denying that at that very time Champa Devi, P.W. had received some injuries. Dr. Surendra Kumar Singh (P.W. 10) had conducted medical examination of Mahendra Rabidas on 1.9.1987 at 4.50 p.m. and had found pain in his chest. He also found bruises on the back and legs of Champa Devi P.W. Subsequent to the death of Mahendra Rabidas, his body was subjected to autopsy by doctor Ajoy Kumar Jha (P.W. 1) in Saddar Hospital, Godda on 6.9.1987 at 8.30 a.m. and apart from finding abrasions on different parts of his body, had also found bruise 2″ x 1″ over a defused swelling on left temporal region. The injuries were caused by hard and blunt substance. On dissection, communated fracture of left temporal bone with extensive extradural haematoma and tear of middle meningeal artery were detected. The death was due to that head injury. Ext. 1 is the post mortem report. Now according to prosecution, the appellant alone was responsible for causing those injuries on Mahendra Rabidas and Champa Devi, P.W. beside outraging the letters modesty. From his side a case of denial simplifier was put forward. The material question for determination is to see as to if satisfactory evidence is available on records for bringing home the guilt against the appellant.
9. As stated above, the success of the prosecution rests on the evidence of P.Ws. 3, 4, 5 and 7, 8, 9. The occurrence having taken place close to the houses of these witnesses, they are natural and probable witnesses. What to say of proof, there is not even a suggestion that any out of these P.Ws. was hostile towards the appellant and was thus interested in his false implication. In spite of searching cross-examination, the credibility of these P. Ws. was not shaken. They had described the occurrence in a highly convincing and straightforward manner. In fact, the evidence of even one out of them is sufficient to connect the appellant with the offences charged. Their unanimous deposition is to the effect that when Champa Devi, P.W. was thwarting the attempt of the appellant in committing rape upon her he had started roughing her up. He also used force against her son Parmod Rabidas, P.W. Subsequently, the appellant had not even spared Mahendra Rabidas when he had shown the courage of lodging protest for his misbehaviour towards his wife. The independent witnesses like P.Ws. 3, 4, 5 and a have fully corroborated the version of Champa Devi, P.W. and her son Parmod Rabidas, P.W. All these P. Ws. have testified about causing injuries to Mahendra Rabidas, by the appellant. The trial court was absolutely right in acting upon the evidence of these P. Ws.
10. However, learned Counsel for the appellant is right in submitting that the offence committed by the appellant towards Mahendra Rabidas does not fall within the ambit of Section 304 of the Code. It has come in the evidence of almost all the P.Ws. that Mahendra Rabidas had received his head injury when he was given a severe push by the appellant resulting in the striking of his head with a big stone. In the given circumstances, it cannot be vouchsafed that the appellant was then possessed of the knowledge that his act was likely to cause death or such bodily injury as is likely to cause death. There was no intention on his part to cause the death of Mahendra Rabidas or even to cause such bodily injury as was likely to cause death. The severity of push given by the appellant to Mahendra Rabidas resulting in his violent fall on the stone because of which his skull bone was broken requires his conviction under Section 325 of the Code. Of course, his convictions under Sections 323 and 354 deserves to be maintained.
11. For reasons stated above, the conviction of the appellant under Section 304 of the Code is set aside, but he is held guilty and, accordingly, convicted under Section 325 of the Code.
12. As regards sentence, one awarded to the appellant under Sections 323 and 354 of the Code does not appear to be excessive. The same are upheld. Then as regard appellant’s conviction under Section 325 of the Code, it will be seen that his conduct throughout the course of occurrence was highly obnoxious. He had behaved in somewhat cruel manner towards Mahendra Rabidas. The appellant had outraged the modesty of Champa Devi, P.W. and when she had offered resistence was caused hurt. The appellant had also not spared her son Parmod Rabidas, P.W. and then her husband, Mahendra Rabidas (the deceased). Taking into consideration all the facts and circumstances of the case, the appellant is sentenced to undergo rigorous imprisonment for five years under Section 325 of the Code.
13. His sentences shall run concurrently. Of course, the period spent by the appellant in jail shall be set-off from his dues sentences.
14. Subject to modification in conviction and sentence, as indicated above, this appeal fails and his hereby dismissed.