JUDGMENT
Manohar Lal Visa, J.
1. The appellants, four in number, before us are aggrieved by the judgment and order dated 21.9.1987 rassed by the 14th Additional Sessions Judge, Munger, in Sessions Trial No. 6/85 convicting the appellant Shankar Singh under Section 302 of the Indian Penal Code (in short, IPC) but sentencing him to undergo imprisonment for life under Section 302 IPC as well as under Section 302/34 IPC and convicting and sentencing the remaining three appellants to undergo imprisonment for life each under Section 302 read with Section 34 IPC.
2. The case of prosecution as stated in the Fardbeyan (Ext. 2) of informant Sudhir Pd Yadav (PW 1), in short, is that on 17.8.1984 at about 3 p.m. the informant along with his villagers namely, Damodar Pd Yadav (PW 1), Brahmadeo Yadav (PW-2) and Janardan Pd Yadav (PW-3) was easing out at ‘Nauka Ahra’when he saw his villager deceased Ram Bilas Yadav was returning to his house in village Sanpo from village Sahora after cultivation along with two bullocks and when he reached near Nauka Ahara all the appellants surrounded him and started abusing him saying that why he was taking the bullocks through their field and on this point an altercation took place and appellant Shankar Singh who was armed with ‘bhala’, gave a bhala blow on the chest of Ram Bilas who after receiving injury fell down and blood stated oozing out from the injury. Thereafter remaining three appellants assaulted him with lathis and some time thereafter Ram Bilas Yadav died at the spot. On ‘hulla’, appellants fled away towards their houses and occurrence was seen by PWs. 1, 2 and 3 and on ‘hulla’, villagers came there running and they also saw the deceased dead and they were told about the occurrence by informant and PWs. 1, 2 and 3. About the motive of the occurrence the informant has stated that it was on account of taking the bullocks by deceased through the field of appellants. Fardbeyan of informant was recorded on the day of occurrence at about 11 p.m. by SI Kedar Nath Singh (PW-5). On the basis of fardbeyan of informant a case under Section 302/34 IPC was registered against all the four appellants and charge sheet was submitted, cognizance of the case was taken and the case was committed to the Court of Session where charge under Section 302/34 IPC against all the appellants and a separate charge under Section 302 IPC against appellant Shankar Singh were framed.
3. The case of appellants before the trial Court was complete denial of occurrence and their false implication in this case on account of previous enmity. Three witnesses on behalf of the appellants have also been examined.
4. After trial the appellants were found guilty and were convicted and sentenced as indicated above.
5. In order to prove its case the prosecution has examined six witnesses in this case. Sudhir Pd Yadav (PW-4) is the informant. Damodar Pd Yadav (PW-1), Brahmdeo Yadav (PW-2) and Janardan Yadav (PW-3) are said to be eye-witnesses to the occurrence. Dharmraj Roy (PW-6) is the doctor who had held autopsy on the dead body of deceased. Kedar Nath Singh (PW-5) is the 1.0. in this case.
6. Sudhir Pd Yadav, the informant (PW-4), in his evidence has stated that on 17.8.1984 at about 3 p.m. he was sitting for easing out at a distance of about 10 cubits from a place where dam of Nauka Ahar has taken turn towards south and Damodar Pd Yadav (PW-1), Brahmdeo Yadav (PW-2) and Janardan Yadav (PW-3) were also sitting near him for easing out and he saw deceased Ram Bilas Yadav coming with two bullocks from village Sahora. According to him, the dam coming from village Sahora joins Nauka Ahra at a place 50 yards south from the place where he was sitting for easing out and when deceased Ram Bilas Yadav reached the place 20 yards from the aforesaid junction he went down from the dam along with his bullocks and thereafter he again climbed on the dam along with bullocks at a place 20 yards from his and thereafter all the four appellants surrounded him and started abusing him saying that why he was taking the bullocks through their field and on this altercation took place and thereafter appellant Shankar Singh gave a bhala blow on the chest of Ram Bilas Yadav who fell down and thereafter remaining three appellants assaulted him with lathis. On ‘hulla’ raised by him and other witnesses appellants fled away and thereafter they went near Ram Bilas Yadav who after 2-4 minutes died there. He has further said that on the same day at 11 p.m. police reached the place of occurrence and recorded his fardbeyan which was read over and explained to him and he put his signature on it and witness Janardan Yadav (PW-3) and Imam Khan (not examined) also put their signatures. He has proved his signature on the fardbeyan (Ext. 2). He has further said that police prepared inquest report (Ext. 1) of deceased on which he put his signature. He has denied the suggestion of defence that he and Ram Swaroop Yadav who is father of witness Janardan Yadav (PW-3) had uprooted the crop of Rajniti Singh, father of appellant Bharat Singh, and for this occurrence a police case was registered. He has further denied that he and PW-3 had uprooted the crop from the field of Rajniti Singh for which a criminal case was lodged and he has further denied that he and others were found fishing in the ditch of Rajniti Singh and has also denied that a dispute between Ram Swaroop Singh and Rajniti Singh had arisen forwhich a Panchayati was held and Ram Swaroop Singh was imposed fine in that Panchayati. In para 14 of his cross examination he has admitted that after the appellants fled away a number of persons came at the place of occurrence but parents or brother of deceased did not come and parents of deceased are old and his brother was not present in the village on the day of occurrence. He has denied the suggestion that appellants have been falsely implicated in this case.
7. Damodar Pd Yadav (PW-1), Brahmdeo Yadav (PW-2) and Janardan Yadav (PW-3) supporting the case of prosecution have stated that they along with informant on the day of occurrence at about 3 p.m. had gone to ease out to Nauka Aharwhen they saw the deceased coming from village Sahora with two bullocks and when he reached Nauka Ahar appellants surrounded him and stated abusing him why he was taking his bullocks through their field and thereafter appellant Shankar Singh gave bhala blow on the chest of deceased and when deceased after receiving injury fell down, the other appellants assaulted him with lathi. Janardan Yadav (PW-3) in para 4 of his cross examination has stated that he is not related with either deceased or informant, or PW-1 or PW-2 and deceased had no dispute with appellants. He has denied the suggestion of defence that a dispute had arisen between his family and Rajniti Singh, father of appellant Bharat Singh, on account of grazing of crop of field and he has also denied the suggestion that he and informant used to cut the crop from the field of Rajniti Singh and he had dispute with Rajniti Singh on account of fishing in the ditch of Rajniti Singh and Panchayati was held and he and informant were fined in that Panchayati. Brahmdeo Yadav (PW-2) has denied the suggestions of defence that he happens to be the cousin of deceased and for this reason he deposed falsely.
8. Dr. Dharmraj Roy (PW-6), in his evidence, has said that on 18.3.1984 at about 11 hours he held post-mortem examination on the dead body of deceased and found the following ante-mortem injury:
(i) One incised wound on the right side of the chest near the coastal margin and hypochondriac region, size 1/2″ x 1/4″ x 1/2″ in depth. One skin muscle and peritoneal layer was cut.
On dissection the liver was found enlarged and ruptured about 2 1/2″ in length, the spleen was slightly enlarged and there was collection of blood and blood clot in the intraperitonial cavity. According to him, the time elapsed since death was within 24 hours and death was due to shock and haemorrhage due to injury described above, which may be caused by bhala and injury was sufficient to cause death. He has proved his post-mortem examination report which is marked as Ext. 6.
The evidence of this witness establishes that death of deceased was homicidal.
9. Kedar Nath Singh (PW-5) is the investigating Officer of this case and in his evidence he has stated that on 17.8.1984 he was posted as officer-in-charge of Chandradip Police Station and on that day at 8.15 a.m. he left the police station for Sikandara for attending a crime meeting and made the literate constable Kanhaiya Tiwari Incharge of Police Station after making entry of it in the Station Diary (Ext. 3) and on the same day he returned to his police station at 8.15 p.m. and took the charge of Station Diary and made note of this fact (Ext. 3/1) in the Station Diary and also perused the other entries made in the station diary in his absence and from the entry in the Station Diary No. 253 (Ext. 3/2) which was in the pen of Kanhaiya Tiwary he came to know that some persons of Maina Ahar had killed the deceased and the dead body of deceased was still lying at Maina Ahar and thereafter he proceeded for the place of occurrence where he reached at about 11 p.m. where he recorded the statement of informant. He has proved his signature and endorsement (Ext. 4) on the fardbeyan. He has also proved formal FIR (Ext. 5). He has said that he took up the charge of investigation and investigated the place of occurrence which is about 5′ west from Nauka Ahar dam and there was water at a distance of 3′ from the place of occurrence where he found the dead body of deceased lying and he also found blood which had been mixed with soil on account of rain and therefore, he could not collect the blood. He has further said that he prepared inquest report of the dead body of deceased and found a hole on the right side of chest and blood was oozing out from that hole and injury appeared to be caused by a pointed weapon. He has further said that he sent the dead body of deceased for post-mortem examination and he recorded the statements of witnesses and after getting the post-mortem examination report completed the investigation and submitted charge sheet.
10. Ram Munshi Singh (DW-1) has said that in a Panchayati held to resolve the dispute between Ram Swaroop Singh and Rajniti Singh he was appointed as one of the Punches and for Panchayati, Ekrarnama (Ext. A) was prepared which was signed by Ram Swaroop Singh and Rajniti Singh. He has proved signature of Ram Swaroop Singh (Ext. B) and Rajniti Singh (Ext. B/1) on Ekrarnama. Nand Kishore Singh (DW-2) has said that he knows Rajniti Singh and Ram Nandan Singh is cousin of Rajniti Singh and Rajniti Singh has also sons, namely, Shankar Singh and Vijay Singh who both are appellants and Bal Kishori Singh is father of appellant Ranjan Singh and this Bal Kishori Singh happens to be the son of Santoshi who is brother of Rajniti Singh and Bharat Singh son of Rajniti Singh is also one of the appellants. About witness Janardan Yadav (PW-3), he has said that he is son of Ram Swaroop Mahto and about informant he has said that he is son of Shali Gram Singh who is cousin of Ram Swaroop Yadav. He has further said that a dispute had arisen between Ram Swaroop and Rajniti six years prior to occurrence. Ho has further said that in the ditch of Rajniti Singh informant and Janardan Yadav (PW-3) had caught fishes on which dispute arose and a case was also instituted by Rajniti Singh against them and informant and PWs 1, 2 and 3 had uprooted the crop from the field of Rajniti Singh for which a case with the police was lodged. Chandra Shekhar Yaday (DW-3) has proved the copy of station Diary No. 116 dated 18.3.1981 and he has also proved the report said to be in the pen of Sadanand Babu (Ext. D). He has proved the carbon copy of Sanha No. 116 dated 18.3.1981 which has been marked Ext. E.
11. The aforesaid witnesses have been examined on behalf of the appellants in order to prove their case that they have been falsely implicated on account of their enmity with Rajniti Singh who is father of appellant Bharat Singh. The Court below has discussed the evidence of defence witnesses and has rightly held that Ext. D and E are not admissible in evidence because Ext. D and E have not been proved under the provision of Evidence Act and the register has not been called for to show that Sanha No. 116 dated 18.3.1981 has been destroyed. We further find that the Court below has rightly held that evidence of DW-1 that he was appointed as a Punch to decide the dispute between Rajniti Singh and Ram Swaroop Singh does not inspire confidence because in para 9 of his evidence he has said that he had heard that informant and PW-3 used to forcibly fish in the ditch of Rajniti Singh but in the verdict which was pronounced after Panchayati which he has proved and is marked Annexure ‘C it is mentioned that the allegation against the informant and PW-3 for fishing in the ditch of Rajniti Singh was found very serious. Besides this, the dispute between Rajniti Singh and Ram Swaroop Yadav is said to have arisen in the year 1981 and the occurrence is said to have taken place much thereafter i.e. in the year 1984.
12. The case of prosecution is that first appellant Shankar Singh gave a bhala blowto the deceased and when deceased fell down the remaining appellants assaulted him with lathi. The evidence of Dr. Dharmraj Singh (PW-6) who conducted the autopsy on the dead body of deceased does not show that any other injury except the injury on the right side of chest of deceased caused by ‘bhala’ was found. The Court below in its judgment has taken note of this fact and has observed that with the lapses of time the lathi injuries might have been subsided and because there is clear cut evidence of PWs 1 to 4 that deceased was assaulted by lathis, therefore, other appellants besides appellant Shankar Singh are also liable for the alleged offence. We find it very difficult to agree with this observation of the Court below. When there is specific evidence of prosecution witnesses that appellants Ranjan Singh, Bharat Singh and Vijay Singh assaulted the deceased with lathis when he had fallen down after receiving bhala injury inflicted on him by appellant Shankar Singh and in the post-mortem examination report only one injury said to be caused by ‘bhala’ was found, the case of prosecution on the point that deceased was assaulted with lathi by appellants becomes quite doubtful and it can not be held true but so far appellant Shankar Singh is concerned, there is evidence of witnesses, namely, PWs, 1, 2 and 3 that he gave bhala blow on the right side of chest of deceased and according to the Doctor Dharmraj Singh (PW-6) that injury proved fatal. The prosecution witnesses have admitted that appellants had no enmity with the deceased and occurrence took place because the deceased was taking his bullocks through the field of appellants. They have further said that appellants started abusing the deceased and on this score an altercation took place. In the Fardbeyan also informant has stated that the appellants after surrounding the deceased started abusing him saying that why he was taking his bullocks through their field and on this point altercation took place and thereafter appellant Shankar Singh gave a bhala blow on the right chest of deceased. These facts establish that there was no previous enmity between the deceased and appellants and incident took place at the spur of moment and there was no repetition of blow and only one bhala blow was given to the deceased. The Court below on this point has observed that appellant Shankar Singh while giving bhala blow knew fully well of his action. There is no finding that appellant Shankar Singh gave bhala blow to the deceased with the intention of causing death or causing such bodily injury as was likely to cause death but then because the bhala blow by appellant Shankar Singh was given on the right chest of deceased which has been proved by prosecution witnesses beyond all reasonable doubts it goes without saying that he had knowledge that his action was likely to cause death.
13. We, therefore, find that case of appellant Shankar Singh comes within the purview of Part-II of Section 304IPC. So far the question of remaining three appellants i.e. Ranjan Singh, Bharat Singh and Vijay Singh is concerned, we find that prosecution has not been able to prove its case against them. From the judgment, of the Court below we find that appellant Shankar Singh was held guilty under Section 302 IPC and otherthree appellants were held guilty under Section 302/34 IPC and they were accordingly convicted but in the order of sentence we find that besides awarding life imprisonment under Section 302 IPC appellant Shankar Singh has further been sentenced to undergo life imprisonment under Section 302/34 IPC and both the sentences have been ordered to run concurrently. In our view, the sentence of appellant Shankar, Singh under Section 302/34 IPC in the order of sentence of the Court below is an error of record because he was not found guilty under Section 302/34 IPC and he was found guilty only under Section 302 IPC Since we have come to a conclusion that the case of appellant Shankar Singh falls within the purview of Section 304 Part II IPC his conviction under Section 302 IPC is altered to under Section 304 Part II, IPC and his sentence is reduced to rigorous imprisonment for five years.
14. In the result, this appeal is allowed in part and appellants Ranjan Singh, Bharat Singh and Vijay Singh are acquitted and as they are on bail they are discharged from the liabilities of their bail bonds.
15. For appellant Shankar Singh, his sentence under Section 302/34 IPC is set aside because by the Court below itself he has not been found guilty under this count but so far his conviction under Section 302 IPC is concerned that is altered to under Section 304 Part II, IPC and his sentence is reduced to rigorous imprisonment for five years and with this modification appeal against him is dismissed. As he is on bail his bail bonds are cancelled and he is directed to surrender before Court below for serving out the sentence passed against him.
B.K. Jha, J.
I agree.