JUDGMENT
1. The sole appellant Ashok Ram was put on trial to face charge under Section 302 of the Indian Penal Code on the allegation that he intentionally and knowingly caused death of Vijay Singh. The trial court, on findings the appellant guilty of the charge convicted under Section 302 of the Indian Pena Code and sentenced him to undergo life imprisonment.
2. The case of the prosecution is that the informant’s Co-villagers, namely, Ashok Ram (Appellant), Sudesh Yadav (P.W.1), Krishna Ram (P.W.2), Muneshwar Mahto (P.W.3), Ajay Bhuian (P.W.4) had grown sugarcane over the land of the informant which had matured for extracting sugarcane juice and, therefore, on 24.12.1996 all the persons named above and also informant’s brother Vijay Singh (the deceased) were busy in preparing ‘Kolsar’ (the place where sugarcane juice is to be extracted). At about 4 P.M. some verbal altercation look place in between the appellant and Vijay Singh. In that course the appellant gave a blow on the head of Vijay Singh by spade, as a result of which Vijay Singh fell down and then again inflicted injury by the spade on the nock of the deceased and fled away. On account of injury sustained by Vijay Singh, there was profuse bleeding, as a result of which Vijay Singh died.
Further case is that one Mukhtiyar Singh, ASI posed at Rajhara Outpost on hearing some rumour that a man has been killed in village Jhari, Police Station-Patan, came to the place of occurrence and found the dead body of Vijay Singh lying in the Kolsor and recorded the Fardbeyan (Ext.5) of Surendra Singh, brother of the deceased on 24.12.1996 at about 5.30 P.M., upon which a case was registered and a formal First Information Report (Ext.7) was drawn. The said Mukhtiyar Singh (P.W.9) took up the investigation and in course of investigation he held inquest on the dead body of the deceased and prepared an inquest report (Ext.2). Thereafter dead body was sent for post mortem examination and Dr. R.P. Sinha (P.W.10) held autopsy on the dead body of the deceased and found the following anti mortem injuries.
i. Incised wound over in front neck about 4″x2″x1″
ii. Incised wound over left mandible 2″x1″x1/2″
iii. Incised wound over back of scalp about 4″x2″x.1″
Dr. issued post mortem examination report (Ext.9) with an opinion that death was caused due to shock and haemorrhage on account of aforementioned injuries caused by sharp cutting weapon. Investigating Officer in course of investigation also seized blood stained earth at the place of occurrence and also seized the spade, the weapon said to have been used in the commission of murder and prepared seizure list (Ext.6).
3. After completion of investigation, police submitted charge sheet and, accordingly, cognizance of the offence was taken and in due course when the case was committed to the court of sessions, charge was framed to which appellant pleaded not guilty and claimed to be tried.
4. The prosecution examined altogether 10 witnesses. Of them P.W.1 Sudesh Yadav, P.W.2 Krishna Ram, P.W.4 Ajay Bhuian @ Ajay Ram and P.W.7 Surendra Singh, the informant, are the eye witneses whereas P.W.5 Sanjay Singh is the witness of inquest and P.W.6 Bikrama Singh and P.W.8 Haribansh Singh are the witnesses to the seizure of the weapon. P.W.3 Muneshwar Mahto has been declared hostile.
5. The trial court, having found the testimonies of the eye witnesses trustworthy corroborated by the medical evidence, did find the appellant guilty for an offence under Section 302 of the Indian Penal Code and accordingly, recorded the order of conviction and sentence as aforesaid.
6. Being aggrieved with the judgment of conviction and order of sentence, the appellant has preferred this appeal.
7. Learned Counsel appearing for the appellant submits that evidence of P.W.1 is not consistent with the evidence of P.Ws.2, 4 and 7 as according to P.Ws.2, 4 and 7 only one blow was given by the appellant to the deceased by spade whereas according to P.W.1 two blows were given to the deceased and therefore none of them can be said to have seen the occurrence and this fact gets strengthened by the fact that occurrence took place inside Kolsar which was surrounded by (sic) causing obstruction of vision from outside and in that event one would not be able to see the actual occurrence from outside. Hence the court below should not have placed reliance on their testimonies but by putting implicit reliance on their evidences trial court has committed illegality by convicting the appellant and hence judgment and order is fit to be set aside.
Learned Counsel appearing for the appellant further submits that even if testimonies of the witnesses are to be taken to be trustworthy, the appellant cannot be held guilty for an offence under Section 302 of the Indian Penal Code as according to the case of the prosecution itself both the deceased and the appellant were working at Kolsar and then suddenly some verbal altercation took place in between them and in that course the appellant is said to have assaulted the deceased resulting into his death which itself suggests that there has been no intention on the part of the appellant to commit murder and in that view of the matter, the case itself falls within the parameter of Explanation IV of Section 300.
8. Heard learned Counsel appearing for the State.
9. Having heard learned Counsel for the parties and on perusal of the records I do find that P.W.1 Sudesh Yadav has testified that he as well as other witnesses including the deceased and the appellant were at ‘Kolsar’ but he as well as other witnesses on being told by Vijay Singh to go out Kolsar came out of Kolsar leaving there the deceased and the appellant and in the meantime, altercation took place in between the deceased and the appellant and in that course the appellant gave a blow by spade on the head as a result of which Vijay Singh fell down and then the appellant cut the neck by spade resulting into his death. This fact gets corroboration from the evidence of P.W.2 Krishna Ram, P.W. 4 Ajay. Bhuian @ Ajay Ram and also from the evidence of the informant Surendra Singh. It would be pertinent to note there that all those witnesses, namely, P.W.2 Krishna Ram, P.W.4 Ajay Bhuian @ Ajay Ram and the informant P.W.7 Surendra Singh have testified to the extent that they saw the appellant cutting the neck of the deceased by spade. In this background submission has been advanced on behalf of the appellant that evidence of P.W.1 is not consistent with the other eye witnesses The submission is not worth acceptable. It is true that witnesses, namely, P.W.2, P.W.4 and P.W.7 have testified that they saw appellant giving a blow on the neck of the deceased while the deceased had fallen on the ground and admittedly they have not spoken about the first assault given by the appellant to the deceased on his head but that does not mean that the evidences of these witnesses are not consistent with the evidence of P.W.1 as those witnesses did toll about that part of the occurrence which they had had occasion to see. It is quite possible that they might have not seen the appellant at that moment when he made first assault upon the deceased. It is their evidence that when they heard sound of falling of something they turned around and saw the appellant giving blow on the neck by spade and therefore version of the witnesses appears to be most natural. The next contention is that as per the prosecution case, occurrence took place at Kolsar and the witnesses were outside of the Kolsar and hence they were not in a position to see the occurrence. The submission is also not acceptable at; there has been absolutely nothing in the evidence of the witnesses that there was any obstruction in between the place where the witnesses were present and the Kolsar making vision obstructed. Even suggestion in this respect was not given to the witnesses.
10. Further I do find that ocular testimony gets corroboration from not only by the medical evidence but by objective findings of the Investigating Officer, who found blood stained earth at the place of occurrence. In the circumstances, I have no hesitation in accepting the evidences of the witnesses.
11. However, the question in the facts and circumstances fell for consideration regarding nature of offence committed by the appellant Admittedly, there had not been any animosity in between the deceased and the appellant. On the day of occurrence as per the evidence of the witnesses particularly P.W.1 both the deceased and the appellant were working at Kolsar and while the appellant was removing grass with the spade altercation took place in between both the persons and in that course, the appellant gave two blows upon the deceased. Thus, it is evident that occurrence took place during quarrel and there was no premeditation on the part of the appellant to cause death of the deceased and hence, the appellant is entitled to the benefit of explanation IV of Section 300 of the Indian Penal Code as nothing is thereto show that the appellant acted in a cruel or unusual manner.
12. In the circumstances, we do not find the appellant guilty for an offence under Section 302 of the Indian Penal Code and hence the order of conviction is hereby set aside and instead of that we do find the appellant guilty under Section 304 part II of the Indian Penal Code as the appellant has caused the death of the deceased not with the intention of causing death but with the knowledge that such act will cause death. On being convicted under Section 304 part II of the Indian Penal Code, the appellant is sentenced for the period already undergone.
13. In the result, this appeal is dismissed with the aforesaid alteration in conviction and modification in sentence as indicated above.