JUDGMENT
Shiva Kirti Singh and Subash Chandra Jha, JJ.
Page 1481
1. This appeal is directed against judgment and order dated 28th May, 2002, passed by Additional District and Sessions Judge-Presiding Officer, 1st Additional Fast Track Court at Siwan, in Sessions Trial No. 343 of 1981/260 of 2001, arising out of Mairwa P.S. case No. 12/80 dated 13.11.80. Appellant No. 1 Ramjit Pathak has been convicted under Section 302 I.P.C. and awarded R.I. for life and a fine of Rs. 5000/- and in default to suffer further R.I. for two years. He has also been convicted for offences under Sections 148 and 324/149 I.P.C. and awarded R.I. for two years for each offence. Appellants No. 2 to 5, namely, Kanhaiya Pathak, Rabindra Pathak, Yogendra Pathak and Jitendra Pathak, have been convicted for offences under Sections 148, 324/149 and 323/149 I.P.C. They have been awarded sentence of R.I. for one year, six months and three months respectively for the said offences.
2. The prosecution case is based upon fardbeyan of Kedar Pathak (P.W.9), resident of village Pathkhauli, P.S. Mairwa, district Siwan, recorded by A.S.I. Binodanand Thakur on 13.11.1980 at 14.30 hours at village Pathkhauli. In brief, the prosecution case is that the informant is one of the four co-owners and from two such co-owners, namely, Babu Nand Pathak and Kailash Pathak, accused-appellant Ramjit Pathak purchased 6 kathas 12 dhurs of land through sale-deed, pertaining to plot Nos. 2036 and 2040. In each of the said plots there is katahal(jack fruit) tree which the accused Ramjit Pathak wanted to capture but the informant party did not permit him to do so because the sale-deed did not Include those trees. Two years earlier an occurrence of assault had taken place on account of attempt to take forceful possession of the said trees leading to cases which are pending in court. For settlement of the dispute relating to those trees a Panchayati had been convened on 13.11.80 at 12 noon for which Dr. Raghunath Singh (P.W.5), Brij Prasad, Dr. Kalamuddin(Mukhiya), Maksudan Mishra (P.W.4) and Rambilas Tiwary had come and panchayati was held under the said katahal three. At about 1 P.M. after looking into the documents of both the parties Kalamuddin declared that the katahal tree belongs to the informant party. On hearing this, accused-appellant Ramjit Pathak declared that he would not accept the said verdict. On that the panches got ready to leave. At that time Arti Devi, daughter of Ramjit Pathak, handed over a bhala and a dagger to her father. Thereafter other accused persons went running and brought weapons like bhala, barchhi and farsa from a nearby sugarcane field. Ramjit Pathak assaulted the deceased Bihari Pathak in the abdomen with a bhala. Bihari Pathak fell down on the ground. Panchdeo Pathak (P.W.1), Sudama Pathak (P.W.8) and Byas Pathak (P.W.2) attempted to save. Bihari Pathak and then appellant Kanhaiya Pathak assaulted P.W.1 on the chest with a bhala. Appellant Yogendra Pathak assaulted P.W.8 on the back with a bhala. Appellant Rabindra Pathak assaulted P.W.2 by throwing brick bats. Co-accused Sarvajeet Pathak who died during course Page 1482 of trial allegedly assaulted the informant by throwing brick bats. Seeing such occurrence the persons who had gathered for doing panchayati started fleeing away. Bihari Pathak died at the same place. The accused persons went to darwaja of Naresh Pathak and assaulted him there. After the accused persons escaped then the dead body of Bihari Pathak was brought to darwaja of the informant due to fear that accused persons may take away the dead body. The injured persons, namely, Naresh Pathak, Sudama Pathak, Panchdeo Pathak and Byas Pathak were sent to Mairwa hospital for treatment.
3. It appears that the fardbeyan recorded by A.S.I. Binodanand Thakur was sent to Officer-in-charge, Mairwa police station, Damodar Pd. Singh (P.W.11) and on that basis the criminal case was instituted and P.W.11 took up investigation. He went to Mairwa hospital and recorded the statement of injured Sudama Pathak (P.W.8) and Ram Naresh Pathak (could not be examined as he died in course of trial). He claims to have issued injury reports of those two injured which have been marked as Exts. 6/1 and 6/2. He went to the place of occurrence and collected the inquest report which had already been prepared by A.S.I. Binodanand Thakur. He claims to have prepared a true copy of the inquest report in his hand writing in paragraph 11 of the case diary which he has proved as Ext.7. After sending dead body for post mortem examination and recording the statement of witnesses he submitted chargesheet. He also claims to have seized certain articles near the place of occurrence and from the house of appellant No. 1 Ramjit Pathak.
4. Charges were framed against all the accused persons for offences under Sections 302/149, 307/149, 148 and 447 of the Indian Penal Code. They pleaded not guilty of the charges and claimed to be tried. On conclusion of trial they have been convicted by the impugned judgment as already noticed earlier.
5. The prosecution in order to prove its case has examined altogether 12 witnesses. P.W.1 Panchdeo Pathak, P.W.2 Byas Pathak, P.W.8 Sudama Pathak are three injured witnesses who have claimed to have seen the occurrence, P.W.9 Kedar Pathak, the informant, who also has claimed to have received some injuries, has also claimed to be an eye-witness. P.W.3 Birendra Pathak, P.W.7 Babu Nandan Pathak and P.W.12 Bhut Narayan Tiwari are formal witnesses. P.Ws. 3 and 7 have Droved the signatures on fardbeyan and seizure list. P.W.12 has proved the post mortem report claiming to be a Compounder familiar with the hand writing of the doctor concerned who was dead.
6. P.W.4 Shivdatt Nonia, P.W.5 Raghunath Rai and P.W.6 Madhusudan Mishra have claimed to have participated in the panchayati as panches and out of them only P.W.5 has claimed to have seen the initial occurrence in which appellant No. 1 Ramjit Pathak save a bhala blow on the abdomen of deceased Bihari Pathak. P.W.10 Dr. Bacha Prasad has proved the injuries on the persons of P.Ws. 1,2,8 and 9 and also the injury of Ram Naresh Pathak. P.W.11 Sub Inspector of Police Damodar Pd. Singh investigated the case in the capacity of Investigating Officer.
7. On behalf of defence, D.W.1 Bacha Singh has been examined as a formal witness to prove certain documents, such as, invitation card to support the defence claim that the female accused who now stands acquitted namely, Arti Devi, was already married prior to the alleged occurrence. The defence case in respect of other accused persons is total denial of the occurrence and from the trend of cross examination it Page 1483 appears that the defence case is that the occurrence took place at some other place in another manner and the accused persons have been implicated only on account of previous enmity.
8. The prosecution case rests mainly upon the eye-witnesses’ account of the informant P.W.9 Kedar Pathak supported by the eye-witnesses’ account of other injured witnesses, such as, P.W.1, P.W.2 and P.W.8. No doubt, P.W.1 and P.W.8 are sons of the informant P.W.9 and P.W.2 Byas Pathak has admitted enmity with the accused persons by admitting some old cases between the parties but the evidence of the doctor shows that these witnesses had received injuries on the date of the alleged occurrence. Their presence at the time of the occurrence in which Bihari Pathak received injury and died cannot be disbelieved. But for some minor contradiction and deviation there is no flood material to discredit the testimony of these eve-witnesses regarding the actual occurrence in which Bihari Pathak received fatal injury at the. hands of appellant No. 1 Ramjit Pathak and these witnesses received injuries on account of assault by other accused persons.
9. The claim of the eye-witnesses and of the Informant regarding holding of the panchayati on account of persisting dispute between the parties in respect of katahal trees has been supported by the witnesses, such as, P.Ws.4, 5 and 6. They are neither inimical nor interested. Except P.W.5 other panch witnesses avoided to make, any allegation of assault against accused persons by claiming that they went away when there was tension between the parties on refusal of appellant No. 1 to accept the verdict of panchayati. Hence, this Court is reassured from the deposition of panch witnesses that they have not attempted to implicate the accused persons which is expected of a inimical witness. Even P.W.5 Raghunath Rai has claimed to have seen only the initial assault on deceased Bihari Pathak by appellant No. 1 Ramjit Pathak.
10. The evidence of the doctor(P.W.10) is also free from any doubt and it gives credence to the prosecution case that in the alleged occurrence P.Ws. 1, 2, 8 and 9 received some injuries.
11. The evidence of investigating officer shows that he first proceeded to the hospital to issue injury reports of the injured and recorded their statement and then came to the place of occurrence for its inspection at about six in the evening. During the month of November at about six in the evening there will be hardly sufficient light to enable the I.O. to appreciate foot marks or trampling marks in an agricultural field where the alleged occurrence took place. It will also be difficult to locate the marks of blood. Even considering the nature of injuries on the injured which were simple and the fact that deceased was inflicted with one bhala injury on the abdomen, too much of blood was not expected to be found at the place of occurrence specially when it was a freshly ploughed agricultural field. It has come in the evidence that in course of panchayati more than 100 persons gradually assembled near that place and hence after the occurrence the movement of such large number of persons was bound to disturb the soil at the place of occurrence. In such circumstances, non-finding of mark of blood or any special marks like trampling by the I.O. cannot lead to disbelieving the prosecution case that the occurrence took place in the field near the katahal tree where panchayati had been convened. The reason indicated for removing the dead body, as disclosed in the F.I.R., also appears convincing. It has come in the evidence that the house of the accused persons at the relevant time Page 1484 when the occurrence had taken place was situated close to the katahal trees and, hence, there could be genuine apprehension of removal of dead body with a view to destroy the evidence of the offence in the likely case of late arrival of police. Hence, the prosecution case in respect of explanation for shifting of the dead body of Bihari Pathak from the field to the darwaja of the Informant appears reasonable and acceptable.
12. On behalf of appellants, besides highlighting the aforesaid facts, it was contended that since the female accused Arti Devi has been acquitted by the trial court, it affects the entire prosecution case specially in respect of assault by appellant No. 1 Ramjit Pathak upon the deceased with a bhala which allegedly had been handed over to him by his daughter Arti Devi. A perusal of paragraphs 21 and 22 of the impugned judgment shows that considering the tradition of keeping girls away from the scene of occurrence etc. and by accepting the defence that just prior to the alleged occurrence Arti Devi had already been married, she has been given benefit of doubt by the trial court. The suggestion of the learned Counsel for the appellants that giving of such benefit to Arti Devi affects credibility of entire prosecution case cannot be accepted because that part of the occurrence is not the sub-stratum of the prosecution case. Other accused persons allegedly brought arms from a sugarcane field situated near the place of occurrence. So, there was opportunity of weapon going in the hands of appellant No. 1 Ramjit Pathak also from other sources. Hence, in our view, the role given to acquitted accused Arti Devi can safely be treated as chaff which can be separated from the grains and on account of benefit of doubt given to her the entire prosecution case based upon reliable testimony of eye-witnesses relating to assault cannot be disbelieved.
13. No other substantial ground remains to be discussed so far as the actual occurrence of assault as alleged by the prosecution is concerned. The prosecution case in respect of time, place and manner of occurrence deserves to be accepted as has been done by the trial court and there is no flood around to interfere with the same.
14. An alternative submission advanced by Sr. counsel for the appellants requires serious consideration. It has been submitted that on a careful consideration of minute details leading to assault by appellant No. 1 upon deceased Bihari Pathak will show that there was no intention on his part to cause death and the single assault made by him, as per prosecution case itself, was occasioned due to exchange of abuses involving this appellant and the deceased. Hence, it has been submitted that the conviction of appellant No. 1 under Section 302 I.P.C. deserves to be altered to a conviction under Section 304 I.P.C. because apparently the offence of culpable homicide committed by the appellant is covered by Exception 4 and, therefore, such homicide should not be accepted as murder. Exception 4 to Section 300 of the I.P.C. provides that –
Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
In respect of other appellants it has been submitted that considering the fact that they have been convicted only for minor offences under Sections 148, 324/149 and 323/149 and have been awarded the maximum punishment of one year only for the offence under Section 148 I.P.C. and sentence of six Page 1485 months and three months respectively for the other two offences, they should have been given the benefits of the Probation of Offenders Act, 1958 and this Court should allow them such benefit of Probation on reasonable terms and conditions.
15. In respect of offence alleged against appellant No. 1 Ramjit Pathak it has been highlighted that according to prosecution case itself he has purchased lands over which the katahal trees allegedly stand and on account of dispute over those trees the parties agreed for a panchayati and for quite some time the deliberations for panchayati proceeded. It was further highlighted that none of the accused persons had any weapon in their hands for most of the time and only when the panchayati failed and was followed by exchange of abuses between the deceased and appellant No. 1, allegedly weapons were brought from other place and only a single blow was inflicted by appellant No. 1 in the abdomen. The post mortem report (Ext.8) shows that death was caused due to injury No. 1 which was a penetrating injury on the left side of abdomen just below coastal margin size 1/ -1/4″ x 1/2″ In the abdominal cavity. The only other injury was obviously simple a bruise on the back. The post mortem report further shows that on opening of abdomen the doctor had found the stomach punctured in the size 1/2″ x 1/4″. Apparently the bhala had penetrated and punctured stomach by a small size of 1/2″ or 1/4″. The single blow was admittedly precipitated by exchange of abuses. The witnesses have categorically stated that after the deceased fell down nobody made any attempt to assault him.
16. In view of aforesaid facts and circumstances, we are persuaded to accept the submission advanced on behalf of appellant No. 1 that he had no intention to cause death and the assault was made by him without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. Appellant No. 1 apparently took no undue, advantage or did not act in any cruel or unusual manner. Hence, the submission that Exception 4 to Section 300 I.P.C. applies to the offence committed by appellant No. 1 is found acceptable. Hence, appellant No. 1 is found guilty for offence under Section 304 (part 1) of the I.P.C. because the bodily injury intended was such as was likely to cause death. The conviction of appellant No. 1 is, therefore, altered from one under Section 302 to Section 304(part 1).
17. It appears that at the time of judgment appellant No. 1 was aged about 65 years. He has remained in custody for about five years. Now he is aged about 70 years. The ends of justice would be satisfied if he is sentenced to undergo R.I. for seven years for the offence under Section 304(part 1). He is sentenced accordingly.
18. So far as the submission relating to application of Probation of Offenders Act in respect of other appellants is concerned, it is found that the offences for which they have been found guilty by the trial court are not punishable with death or imprisonment for life. The occurrence took place in the year 1980, i.e., about 27 years earlier. It appears that appellant Nos. 4 and 5 Yogendra Pathak and Jitendra Pathak were approximately aged about 18 years at that time. The injuries proved on the injured witnesses are simple in nature and none of the remaining appellants, i.e., appellant Nos. 2 to 5 have assaulted the deceased. As already noticed, the genesis of occurrence lay in dispute over katahal trees and was occasioned on account of failure of panchayati and exchange of abuses between the deceased and appellant No. 1. Considering all these facts and circumstances, we are of the view that while the conviction and sentence of appellant Nos. 2 to 5 is fit to be confirmed, Page 1486 instead of straightway imposing upon them the sentences awarded by the trial court, they deserve to be given benefit of Probation of Offenders Act, 1958. Their bail bonds shall stand cancelled but we direct the trial court to release the appellant Nos. 2 to 5 on their executing a bond of Rs. 5000/- each with two sureties of the like amount each to keep the peace and be of good behaviour for a period of one year, in accordance with the provisions of Section 4 of Probation of Offenders Act.
19. With the aforesaid modification in respect of conviction of appellant No. 1 and in respect of sentence awarded to him and the modification in respect of sentence only to appellant Nos. 2 to 5, the appeal is dismissed.