JUDGMENT
Dilip Kumar Sinha, J.
1. The appellants have preferred this appeal against the judgment of their conviction under Sections 148, 304 part-1 r/w 149, 307/149 Indian Penal Code and order according to which each of them, has been sentenced to undergo rigorous imprisonment for 3 years, 10 years and 10 years respectively on each count passed by Additional Sessions Judge, F.T.C. IV, Bokaro in Sessions Trial No. 119 of 1998 on 5.10.2004. The appellants Paresh Gope and Shatrughanj Gope have further been convicted separately under Section 436 I.P.C. and sentenced to undergo rigorous imprisonment for 10 years each. All the sentences aforesaid were directed against each of the appellants to run concurrently.
2. The prosecution story as it stands narrated in the Fard Bayan of the informant P.W. 5 Prabhakar Gope was that a contract work for the construction of a culvert on the village road was given to his younger brother Kalipado Gope by the Block Development Officer, which was opposed by some villagers. On the date of reporting i.e. on 18.12.97 at about 4.45 p.m. all the appellants forming an unlawful assembly arrived at the site of construction near the culvert at the distance of only about 25 yards from his house and started filling up the pits. When Kalipado Gope opposed them from doing so, it was alleged that all the appellants surrounded him and began to assault him with specific attribution against the appellant Paresh Gope that he inflicted axe blow on his head as a result of which he fell down sustaining injuries. It was further alleged that then all the appellants attacked on the house cum shop of the informant by brick batting, is a result of which his old father Guhi Ram Gope, mother Robni Gavalin and the child Ramesh Gope sustained injuries. The informant added that the appellants damaged the articles of he shop and took away Rs. 150/- in cash and from amongst them the appellants, Satrughan Gope and Paresh Gope set his thatched house on fire causing damage to the household articles. The police registered Chandankiyari (Bangana) P.S. Case No. 116 of 1997 on 18.12.1997 against all the 17 named accused persons on the statement of the informant and submitted charge-sheet against them (appellants) for the offence alleged,. It would not be out of place to mention that the injured Guhi Ram Gope succumbed his injuries after 27 days.
3. The Sessions Judge, Bokaro framed the charge against all the 17 appellants under Sections 147, 148, 452, 307/149, [302/149, 427 I.P.C. Separate charge against the appellants Paresh Gope was framed under Section 324 I.P.C. and again with the appellant Shatrughan Gope under Section 436 I.P.C. The appellants pleaded not guilty and claimed to be tried.
4. The prosecution had produced altogether 10 witnesses in order to establish the case. On the other hand, the appellants had produced only 4 witnesses in their defence. Besides, the prosecution proved the work order assigned to the witness Kalipad Gope Ext. 1. The certificate issued by the Ideal Nursing Home, Chas (Bokaro Steel City) dated 10.1.1998 in respect of treatment of Guhi Ram Gope was proved Ext. 2. Ext. 3 is the signature of the informant Prabhakar Gope on his Fard Bayan whereas the signature of the attesting witness of the Fard Bayan has been proved Ext. 3/1. The signature of the witnesses on the inquest report are Ext. 4 and 4/1. The postmortem report has been proved Ext. 5. The prosecution finally proved the injury report of Rawani Gwalin Ext. 6, Kalipad Gope Ex. 6/1 and Guhi Ram Gope Ext. 6/2. On the other hand, the requisition of the police to the Medical Officer, Primary Health Centre, Chandankiyari forwarded by the S.I. Sudhir Kumar Choudhary for the examination of victim Rawani Gwalin, Kalipad Gope and Guhi Ram Gope were proved on behalf of the defence and marked Ext. A, A/1 and A/2 respectively. I
5. Before initiating the argument of the appellants on merit, their learned Counsel Mr. Mazumdar submitted that with the intervention” of the well-wishers, the parties have entered into compromise and therefore, the merit of the appeal may be considered in the backdrop that the informant and other injured witnesses have no longer grievance against the appellants who have been convicted under various Sections and sentenced to undergo R.I. for the maximum period of 10 years. He further submitted that in support of this contention a vakalathama has been filed on behalf of the informant which requires conscious consideration. Admittedly some of the offences in which the appellants have been convicted are not compoundable under Section 320 Code of Criminal Procedure but this Court may consider that neither the offence under Section 307/149 nor part-II of 304/149 nor under Section 436 I.P.C. is made out against the appellants in the given circumstances and if at all any offence is made out the same are compoundable which come within the purview of Section 320 Cr.P.C. and this Court may therefore, pass orders under Section 320(5) of the Code of Criminal Procedure.
6. Learned Counsel advancing his argument pointed out, with reference to the postmortem report of Guhi Ram Gope (Ext.5), that the age of the deceased Guhi Ram Gope was assessed about 80 years and P.W. 9 Dr. Chandra Bhushan Prasad Singh found the following in his postmortem examination:
Rigor mortis present in all the limbs.
(i) Two 1/2″ x 1/2 healed wounds marks with collegen tissue formation, with no crusts of about three week duration found in the lateral aspect of right elbow.
(ii) One healed ulcer marks in the area of 1/2 x 1/4″ on the distal phalynx pulp of the ring finger of right hand which was almost healed with collegen tissue formation of about three weeks duration.
(iii) One healed ulcer marks 3/4 x 1/4 on the left eyebrow with collegen tissue formation of about three weeks duration.
On dissection:
The heart was moderately enlarged in size. The left side of the heart chamber contained a little amount of liquid blood, whereas the right side contained liquid blood. There was a big thrombus lodged in anterior disending branch of the left coronary artery. The liver was also moderately enlarged. In the brain, the membrane and brain tissue were congested.
In the opinion of the Doctor, the healed wounds referred to above were ante-mortem in nature and were so trivial in nature that they could not be attributed to be the cause of death. The cause of death in his opinion was dense coronary thrombus leading to cardio respiratory failure. He preserved important viscera for pathological chemical examination.
7. Learned Counsel submitted that the occurrence as alleged took place on 18/2.1997 but Guhi Ram Gope died after about 27 days and his postmortem was held on 15.1.98. P.W. 9 Dr. Chandra Bhushan Prasad Singh was very clear in his opinion that the held wounds described in the postmortem report (Ext.5) as ante-mortem wounds were so trivial that they could not be attributed to the cause of death of Guhi Ram Gope and that he died due to cardio respiratory failure on account of dense coronary thrombus and in view of that the conviction of the appellants under Section 304 part-II r/w 149 I.P.C. is unsustainable and if at all the offence was made out, it was under Section 323 I.P.C. as the injuries found on the person of victim were alleged to be caused by brick baiting on house and therefore, inference can very well be drawn that the appellants had no intention to cause culpable homicide nor they had knowledge that brick batting on the house cum shop of the informant though not aimed at any person could cause injuries.
8. Advancing his argument learned Counsel further submitted that similarly, the conviction of the appellants under Section 337 r/w 149 I.P.C. is based upon erroneous consideration without appreciation of the material on the record. The prosecution failed to bring home either the mensrea or the motive of the appellants that they attempted on the life of P.W. 2 Kalipad Gope with the intention to commit his murder but they could not due to mitigating circumstances.
9. The prosecution case was that all the 1? appellants surrounded P.W. 2 Kali Pad Gope near the site of construction of culvert and began to assault him with specific attribution that the appellant Paresh Gope inflicted blow with an axe on his head as a result of Which he fell down sustaining injuries.
10. The injuries of Kalipad Gope were examined by P.W. 10 Dr. Birendra Kumar on 18.12.1997 at Primary Health Centre, Chandankiyari at about 7.15 p.m. and the Doctor found the following:
(i) Incised wound 2 1/2 ” x 1/2 ” x skin deep over left side of frontal head caused by sharp cutting substance.
(ii) Abrasion 1/2″ x 1/2″ over right index finger caused by hard and blunt substance.
(iii) Swelling with pain over left side thigh laterally and back side of right thigh due to hard and blunt substance 1″ x 1″ & 3/4′ x 3/4.
In the opinion of the Doctor all the above injuries were simple in nature.
11. Learned Counsel emphatically submitted, that no corresponding injury was found on the person of P.W.2 Kalipad Gope either on head or any other part of body. It was alleged that Paresh Gope had inflicted blow ‘with an axe on the head of the witness but the injury report indicates skin deep incised wound with the small dimension on the left side of frontal head which cannot be caused by a weapon like axe. Similarly, simple injuries were found over the index finger and upon both the thigh caused by hard and blunt substance and that had there been intention of the appellants to commit his murder, there was no intervening circumstance to present them and therefore, no offence is made out under Section 307/149 I.P.C. Learned Counsel suggested that in view of the injuries sustained by P.W. 2, as aforesaid which was incised but simple in nature, the offence may be made out under Section 324 I.P.C., though allegation was denied.
12. As regards the injuries found on Mrs. Rawani Gwnlin i.e. the mother of the informant Dr. Birendra Kumar (P.W. 10) had found the following injuries:
(i) lacerated wound at two places over upper, portion ‘ and ‘rontal aspect of right leg with the dimensions.
(a) 3/4″x3/4″x 1/2″ deep.
(b) 1″ x 3/4″ x 1/4″ deep caused by hard and blunt substance.
Swelling with pain over left knee and left side of back caused by hard and blunt substance. According to Dr. Birendra Kumar ( P.W. 10) all the above injuries were simple in nature caused by hare and blunt substance. The learned Counsel attracted the attention by submitting that the above injuries found by the expert witness on the mother of the informant were not in consonance of the prosecution cannot being the corresponding injuries caused by brick batting. No conventional weapon was used, as such sticks or any other hard and blunt object to cause injuries. In view of the nature of injuries found on the person of witnesses learned Counsel submitted that the intention of the appellant can be inferred and therefore no offence is made out against any of the appellants under Section 307/149 I.P.C. for which they have been convicted which is liable to be set aside.
13. While examining the separate conviction of the appellants Paresh Gope and Satrughan Gope under Section 436 I.P.C, the learned Counsel submitted that the prosecution miserably failed to bring about any material on the record that the dwelling house of P.W. 1 Lal Mohan Gope was set on fire by them. No material exhibit was produced on; the record on behalf of the prosecution to substantiate the charge under Section 436 I.P.C. that the hut in question alleged to be set on fire was a dwelling house or a place for the custody of property like food-grains] utensils & clothes. Learned Counsel pointed out that witnesses were consistent that the thatched hut which was set on fire was on the Government land, constructed by one Jala Ansari and that the son of Jalal Ansari had opened a puncture repairing shop of cycle in it which was abandoned long ago and thereafter P.W. 1 Lal Mohan Gope occupied the same. The informant P.W. 5 alleged that furniture, food-grains like rice, pulse, books of the children worth Rs. 3,000/- of P.W. 1 Lal Mohan Gope were destroyed in fire, in the cross-examination the witness deposed that the said hut, thatched with straws was surrounded by several houses of the neighbours but without conflagration in any of the neighbouring house. Similarly, no material exhibit in respect of the burnt portion of food-grains, books & clothes was produced in support of the allegation of destruction in fire. The prosecution even failed to produce the piece of any burnt furniture to substantiate the charge under Section 436 I.P.C. The prosecution neither produced any independent witness of neighbour nor any material exhibit of burnt piece of articles collected from the hut was presented in the court in support of fact that the hut in question was a dwelling house or 3 place to keep properties which was set on lire. On the other had there was material that a hut of one Jalal Ansari which was abandoned long ago was occupied by the informant and his brothers and by the side of the hut the informant was having a tea shop where the informant used to prepare tea and snax in the oven with the help of fire wood and the possibility of fire in the hut from the oven cannot be ruled out. The Learned Counsel attracted the attention by submitting that in the instant case the investigating Officer was not examined and therefore, there was no objective finding of the Investigating Officer after his visit to the alleged place if occurrence as to whether the hut alleged to be set on fire was a place of dwelling or a place where properties were kept and for want of that the appellant Paresh Gope and Satrughan Gope who have been convicted under Section 436 I.P.C. are highly prejudiced for being denied of the opportunity to cross-examine the Investigating Officer in respect of his objective finding. Similarly no material exhibit has been produced in the trial court as there was no seizure of any article allegedly burnt and collected from the hut. Conviction of the appellants Paresh Gope and Satrughan aforesaid under Section 436 I.P.C. is therefore, unsustainable, unwarranted and is liable to be set aside.
14. Mr. T.N. Verma, learned A.P.P. vehemently opposed the contention advanced on behalf of the appellants and submitted that admittedly the Investigating Officer of the case could not be examined in the instant easel but for such reason the prosecution case cannot be thrown out in view of consistent statements of the prosecution witnesses such as P.W. 1, Lal Mohan Gope, P.W. 2 Kalipad Gope and P.W. 5 Prabhakar Gope Who were the injured witnesses in the instnt case and their hut was set on fire. The fact has been proved that their father Guhi Ram Gope succumbed his injuries sustained by brick batting of the appellants. The appellants had also attempted on the life of P.W. 2 Kali Pad Gope in prosecution of common object and one of them Paresh Gope inflicted blow with an axe on the head as a result of which Kali pad Gope fell down sustaining injuries and this fact has been substantiated in the medical evidence adduced by P.W. 10 Dr. Birendra Kumar, The judgment impugned and the sentence awarded against the appellants for their conviction as narrated is well discussed which do not call for interference and hence the appeal be dismissed by upholding and affirming the judgment of conviction and order of sentence recorded against the appellants.
15. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find substance that the prosecution could not be able to prove the charge under Section 304 part-II r/w Section 149 I.P.C. and Section 307/149 I.P.C. against all the appellants. Admittedly, the father of the witnesses P.W.s. 1,2 & 5 namely Guhi Ram Gope succumbed his injuries after 27 days and in the opinion of the Doctor Chandra Bhushan Prasad Singh (P.W. 9) the healed wounds found on the person of the deceased though were ante-mortem in nature, so trivial that they could not be attributed to the cause of death of Guhi Ram Gope, 80. In the opinion of the Doctor cause of death was dense coronary thrombus leading to cardio respiratory failure as on assertion of the dead body a big thrombus in anterior disending branch of the left coronary artery was found. In the backdrop of the said finding as to the cause of death of Guhi Ram Gope I share the view of Mr. Maoimdar, the learned Counsel that the conviction of the appellants is not sustainable under Section 304 part-II r/w Section 149 I.P.C. and the appropriate Section for the conviction of the appellant would be 323/149 I.P.C. for inflicting minor and simple injuries to Guhi Ram Gope by brick batting which could not be attributed to the cause of his death.
16. As regards conviction of the appellants under Section 307/149 I.P.C, there is substance in the argument of the learned Counsel for the appellants that there was no intervening circumstances, had there been intention of the appellants to commit murder of P.W. 2 Kali Pada Gope and according to the prosecution case only one blow with the axe was inflicted on his head but without corresponding injury In the opinion of Doctor Birendra Kumar (P.W. 10) one skin deep incised wound with the dimension of 2 1/2″ x 1/2″ skin deep was found over left side of frontal head alleged to be caused by sharp cutting substance but ‘skin deep’ injury cannot be found if it is caused by an axe targeting the head of a person with the dominant intention to commit murder. The other injuries were trivial in nature. So in view of the injuries coupled with the circumstances and the intention of the appellants drawn from there conduct it can safely be said that the prosecution failed to prove the charge under Section 307/149 I.P.C. against the appellants and I further share the view that in the given circumstances the offence under Section 324/149 I.P.C. is made out against the appellants.
17. I further find substance in the argument as advanced by Mr. Mazumdar on behalf of the appellants that in absence of any material exhibit or any consistent evidence in support of the fact that a hut in question which was a place of human dwelling or for the custody of property was set on fire and that there was no objective finding of the Investigating Officer of the case on the record in respect of the alleged place of occurrence, the materials brought on the record during course of trial to convict the appellants Paresh Gope and Satrughan (pope for the charge under Section 436 I.P.C. I further find that the informant P.W. 5 (Prabhakar Gope) testified that it were the appellants Paresh Gope and Satrughan Gope who set the thatched house on fire with the help of matches but on the other hand, the allegation was only against Paresh Gope in the testimony of P.W. 1 Lal Mohan Gope. According to P.W. 2 Kali Pad Gope all the appellants had set the hut in question on fire. P.W. 5 Parbhakar Gope admitted that he was having a tea and snax shop near the hut where he used to prepare with the help of fire wood therefore the probability what has been expressed by the learned Counsel that the hut caught fire from the fire flaught emerging from the oven.
19. From the individual statement of ail the appellants recorded under Section 313 Code of Criminal Procedure it is evident that no question was put to any of them for the charge under Section 302/149 I.P.C. On the contrary question was put to all the appellants that they had set the house on fire in prosecution of common object but conviction under Section 436 I.P.C. was directed only against Paresh Gope and Satrughan Gope and in this manner also the appellants are prejudiced.;
20. I find from the facts and circumstances from which the conclusion of guilt of the appellants was-drawn by the Trial Court was not fully and satisfactorily established beyond all reasonable doubts. In short the evidence on the record false short of proving the guilt of the appellants for which they were convicted on erroneous consideration.
21. In the backdrop of the discussions made hereinabove I find that the prosecution could be able to prove and the appellants are liable to be convicted under Section 323/149 I.P.C. in place of Section 304 part-II r/w Section 149 I P.C. and also under Section 324/149 I.P.C in place of Section 307/149 I.P.C. In the given circumstances no offence is made out under Section 436 I.P.C. against the appellant Paresh Gope and Satrughan Gope and therefore, they are acquitted from the said charge.
22. With reference to the submissions as made by the learned Counsel contained in paragraph No. 5 of this judgment, that with the intervention of the well-wishers the injured witnesses have entered into compromise with the appellants and that the injured have 10 longer grievance against he appellant and in support of that a vakalatnama has been filed on behalf of the informant, and the learned Counsel for the informant Mr. Ravi Kumar Singh conceded to it, and that the conviction of the appellants has been modified into one under Section 323/149 I.P.C. which is compoundable by the persons to whom the heart was caused under Section 320(1) Code of Criminal Procedure and further modified conviction under Section 324/149 I.P.C. is also compoundable by the person to whom heart were caused under Section 320(2) of the Code of Criminal Procedure with the permission of Court, I allow the composition of the offence between the informant and the appellants and therefore, all the 17 appellants above-named are acquitted from their conviction under Section 323/149 & 324/149 I.P.C. under Section 320(5) of the Code of Criminal Procedure.
23. Before parting, it is imperative to mention that all the appellants were convicted under Section 148 Indian Penal Code and sentenced to undergo imprisonment for 3 years each. Section 148 I.P.C. is non-compoundable and hence permission for the composition cannot be accorded to the parties. I find from the record that each of the appellants remained in judicial custody at different stage of the criminal proceeding. A new Chapter XXIA has been introduced in the code of Criminal Procedure by amendment which deals with plea bargaining and therefore, sentence awarded to each of the appellants under Section 148 I.P.C. for the period already undergone by them in custody in view of prevailing peace between the appellants and the injured witnesses of the prosecution would meet the ends of justice upholding the conviction in the said section.
24. With the modification in the conviction and sentence of the appellants in the manner indicated above this appeal is allowed.