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2000 DIGILAW 526 (PAT)

Sarjug Rabidas v. State Of Bihar

2000-04-04

M.L.VISA

body2000
Judgment M.L.Visa, J. 1. This appeal is directed against the judgment and order, dated 8.6.1989 passed by Addl. Sessions Judge XI, Munger in Sessions Case No. 478/85 convicting and sentencing both the appellants to undergo RI for a period of seven years each under Section 304, Part (ii) read with Section 34 of the Indian Penal Code (in short, "IPC"). 2. The case of prosecution in short is that on 12.3.1985 at about 7.00 p.m. deceased Ganga Rabidas was sitting in front of his darwaja when both the appellants armed with lathis came there and started assaulting Ganga Rabidas with lathis saying that their brother at Calcutta was assaulted by the son of Ganga Rabidas. Ganga Rabidas, the deceased, received bleeding injuries on his head and fell unconscious. When the informant Smt. Lila Devi (PW 5), the daughter-in-law of deceased, tried to rescue the deceased she was also assaulted by the appellants with lathis. After the assault both the appellants fled away. The occurrence was witnessed by Chania Devi (PW 1), Jilebiya Devi (not examined) and Shanti Devi (PW 4). The deceased was put on a cot for bringing him to police station and in the meantime his son Munsi Rabidas, who at the time of occurrence had gone to ease himself also came but the deceased died in the village itself and thereafter, his dead body was brought to police station on the same day in the night by informant and Munsi Rabidas (PW 7) where the informant lodged the FIR (Ext. 2) under Section 302/34, IPC against both the appellants. The police after investigation submitted charge-sheet against both the appellants under Section 302 read with 34, IPC. After taking cognizance the case was committed to the Court of Sessions where charge under Section 302, IPC for committing the murder of deceased Ganga Rabidas and charge under Section 323, IPC for voluntarily causing hurt to informant were framed against both the appellants. 3. The case of the appellants as it appears from the trend of cross-examination before the Court below was that they themselves were assaulted by the prosecution party at the time of alleged occurrence and they had also lodged an FIR and they have been falsely implicated in this case which has been lodged as the counter blast of their case. The case of the appellants as it appears from the trend of cross-examination before the Court below was that they themselves were assaulted by the prosecution party at the time of alleged occurrence and they had also lodged an FIR and they have been falsely implicated in this case which has been lodged as the counter blast of their case. The Court below after trial held both the appellants guilty under Section 304, Part (ii), IPC and convicted and sentenced them as indicated above. There is no finding by the Court below on the charge under Section 323, IPC which was framed against the appellants for voluntarily causing hurt to informant Lila Devi. 4. In order to prove its case the prosecution has examined ten witnesses. Chania Devi (PW 1), Shanti Devi (PW 4) and Lila Devi (PW 5) (informant) are all daughters-in-law of the deceased and are said to be the eye-witnesses to the occurrence. Munsi Rabidas (PW 7) is the son of informant and is a hearsay witness. Dev Narayan Das (PW 8) is a tendered witness. Chandreshwar Prasad Sinha (PW 2) is the Doctor who had conducted postmortem examination on the dead body of the deceased. Suryanath Singh (PW 3) and Sukhde6 Singh (PW 10) are formal witnesses who have proved FIR (Ext. 2), case diary (Ext. 6) and injury report (Ext. 7). Dr. Parmeshwar Prasad (PW 9) is the Doctor who had given first aid to the deceased and had also examined the informant. Devashray Singh (PW (sic)) is the I.O. 5. Dr. Parmeshwar Prasad (PW 9) has stated that on 13.3.1985 he gave first aid to Ganga Rabidas who was referred to him by the police and who when brought before him was unconscious and he found a lacerated wound 4" x 1/2" x bone-deep on the left parital bone and he referred the deceased to the Sub-Divisional Hospital, Jamui for further treatment. He has further stated that on the same day he examined the informant and found swellings on right upper arm, laterally, on left scapular area and left occipital protuberence. 6. He has further stated that on the same day he examined the informant and found swellings on right upper arm, laterally, on left scapular area and left occipital protuberence. 6. Lila Devi (PW 5), the informant, in her evidence has stated that at the time of occurrence the deceased who was her father-in-law, was sitting at his outer darwaja and she was cleaning utensils there when both the appellants armed with lathis came there and started assaulting the deceased after abusing him and they both caused injuries on the head of deceased and the deceased after receiving injuries fell down and became almost half dead and when she came for rescue of the deceased they assaulted her also. She has clearly stated that she does not know in which part of the body her father-in-law received other injuries. Chania Devi (PW1) and Shanti Devi (PW 4) who are also daughter-in-laws of deceased supporting the case of prosecution have stated that at the time of occurrence both the appellants assaulted the deceased with lathis, who received injuries on his head and fell down and when informant went for his rescue she was also assaulted by the appellants with lathis. 7. Chandreshwar Prasad Sinha (PW 2) is the Doctor who had held postmortem examination on the dead body of the deceased. He in his evidence has stated that on 13.3.1985 at 2.00 p.m. he held post-mortem examination on the dead body of the deceased and found a lacerated wound 3-1/2" x 1/4" x bone surface with swelling due to haematoma around the wound on the top of the scalp. According to him this injury was caused by hard and blunt substance which may be a lathi and the cause of death was due to chronic illness of the lung and heart. He has further stated that the injury found on the head of the deceased was not sufficient to cause death but the bleeding added factors to shock. 8. On behalf of appellants a witness has been examined who is Kalmeshwari Yadav (DW 1) who has proved the formal FIR (Ext. A) of a case lodged by appellant Chhoteylal Rabidas against Munsi Rabidas (PW 7), son of in-, formant and others under Sections 307, 323, 324/34, IPC. 8. On behalf of appellants a witness has been examined who is Kalmeshwari Yadav (DW 1) who has proved the formal FIR (Ext. A) of a case lodged by appellant Chhoteylal Rabidas against Munsi Rabidas (PW 7), son of in-, formant and others under Sections 307, 323, 324/34, IPC. The case of appellants is that on the day of occurrence they were assaulted by the son of deceased and others and when they lodged the case both the appellants have been falsely implicated in this case. Ext. A shows that FIR by appellant Chhotelal Rabidas was lodged on 12.3.1985 at 11.00 p.m. whereas the FIR of the present case was lodged on 12.3.1985 at about 10.30 p.m. which is earlier than the FIR lodged by Chhoteylal Rabidas. I, therefore, find that Ext. A does not in any way help the case of defence. Besides this, there is evidence of informant (PW 5), (PW 1) and (PW 4) who are eye-witnesses that at the time of occurrence the deceased was assaulted by appellants with lathis. Their evidence on the point of assault on deceased by appellants is quite consistent and I find no reason to disbelieve them. 9. The evidence of eye-witnesses to the occurrence is that both the appellants assaulted the deceased with lathis but Dr. Parmeshwar Prasad (PW 9) who gave first aid to the deceased and Dr. Chandreshwar Prasad Sinha (PW 2) who held post-mortem examination on the dead body of the deceased had found only one injury on the head of the deceased. From the evidence of informant (PW 5), PW 1 and PW 4, it is not clear that which of the two appellants caused solitary injury which was found on the head of the deceased. Besides this PW 2 has clearly stated that cause of death was chronic illness of lung and heart and the injury found on the head was not sufficient to cause death and the bleeding added factors to shock. He does not say that injury found on the head of the deceased was the sole reason of shock and his evidence suggests that shock was already there and the injury found was one of the factors of shock. He does not say that injury found on the head of the deceased was the sole reason of shock and his evidence suggests that shock was already there and the injury found was one of the factors of shock. There is no evidence on record to show that the appellants were knowing that the deceased was suffering from the chronic illness of lung and heart and the single injury caused on his head would result into his death. In view of the clear medical opinion of PW 2 that injury found on the head of the deceased which according to the prosecution is attributed to the appellants was not the cause of death and in absence of evidence on record to show that which of the two appellants is the author of the single injury the appellants cannot be held guilty under Section 304, Part (ii), IPC. But, then from the evidence on record that both the appellants armed with lathis went to deceased and started assaulting him it can easily be presumed that both had common intention to voluntarily cause hurt to deceased and in furtherance of this common intention one of them voluntarily caused hurt to the deceased and the appellants cannot escape from the liability under Section 325 read with Section 34, IPC. 10. Both the appellants are, therefore, found and held guilty under Section 325 read with Section 34, IPC. About the punishment, considering the nature and weapon used in the single injury as well as the fact that the case relates to the occurrence of the year 1985, sentence for the period already undergone in custody and a fine of Rs. 2,000/- to each appellant in default to undergo SI for a period of four months will, in my opinion, meet the ends of justice. 11. In the result, the conviction of the appellants under Section 304, Part (ii), IPC is altered to conviction under Section 325 read with Section 34, IPC and their sentence is reduced for the period already undergone by them in custody and a fine of Rs. 2,000/- each in default to undergo further SI for a period of four months. With this modification the appeal stands dismissed.