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2000 DIGILAW 669 (PAT)

Nilesh Kumar Pathak v. State Of Bihar

2000-05-03

M.L.VISA, R.N.PRASAD

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Judgment M.L.Visa, J. 1. Both these appeals have been heard together and are being disposed of by this common judgment because both the appeals are directed against the judgment and order dated 19.11.1987 passed by 7th Addl. Sessions Judge, Arrah in Sessions Trial No. 7 of 1986 convicting and sentencing both the appellants to undergo imprisonment for life under Section 302 of the Indian Penal Code (in short, IPC) read with Section 34 of IPC. 2. The case of prosecution, as stated in fardbeyan (Ext. 3) in short, is that on 4.7.1985 at about 12 OClock in the noon informant Raj Narain Singh Yadav (PW 8) had gone to plough the land of Sheo Shankar Pathak (PW 1) situate north of the village. Brij Mohan Pathak (since death), son of Sheo Shankar Pathak carrying seeds for his field had accompanied him. At that time, both the appellants were standing near a machan (scaffold) in their field situate towards east of the field where the informant had gone to work. A karaha (drain) at that time was originating from the boring of appellant Nilesh Pathak was passing along the southern ridge of the field of deceased Brij Mohan Pathak and going towards west and then turning towards north and from this Karaha the land of appellants was being irrigated. When deceased Brij Mohan Pathak asked the informant to plough the field appellant Nilesh Pathak came from his machan to the field of deceased Brij Mohan Pathak and requested him to allow the karaha to remain otherwise there would be difficulty in irrigation. Deceased Brij Mohan Pathak agreed. Thereafter, informant started ploughing the field and when he completed one round of ploughing the deceased Brij Mohan Pathak asked him to sow the seeds in lines and he then started sowing the seeds and when he reached north east corner of the field he saw that appellant Nilesh Pathak threw the deceased on the ground and thereafter appellant Viveka Nand Pathak @ Guddu Pathak came running from the machan and gave dagger blows to the deceased. After receiving injuries, when the deceased tried to run away appellant Viveka Nand Pathak again gave dagger blow on the back of the deceased and the deceased then fell in the field. The informant raised India and both the appellants fled away towards west north side. After receiving injuries, when the deceased tried to run away appellant Viveka Nand Pathak again gave dagger blow on the back of the deceased and the deceased then fell in the field. The informant raised India and both the appellants fled away towards west north side. On hulla raised by informant Sheo Shankar Pathak (PW 1), Mithlesh Kumar Pathak (PW 5), Chatura Nand Pathak (PW 4), Ratneshwar Pathak (not examined) and others came there and they also saw the appellants running away. By the time witnesses reached deceased Brij Mohan Pathak died. The fardbeyan of informant was recorded on the same day at 3.30 p.m. by Dilip Kumar (PW 10) and on the basis of fardbeyan (Ext. 3) a formal FIR (Ext. 1) under Sections 302/34, IPC was drawn against both the appellants and after investigation charge-sheet against both the appellants under Sections 302/34, IPC was submitted. After taking cognizance the case was committed to the Court of Sessions where charge under Sections 302/34, IPC was framed against both the appellants. 3. The case of appellants before the Court below was complete denial of the charge against them and their false implication in this case. The Court below after trial held both the appellants guilty under Sections 302/34, IPC and convicted and sentenced them to undergo imprisonment for life. 4. In order to prove its case the prosecution has examined ten witnesses. Murat Ram (PW 2) and Shri Kishun Prasad (PW 7) are formal witnesses who have proved formal FIR (Ext. 1) and fardbeyan (Ext. 3). Dinesh Kumar Pathak (PW 6) is also a formal witness who has proved his signature (Ext. 2) and signature of Kamta Singh (Ext. 2/1) on the seizure-list which was prepared when the I.O. collected blood-stained earth from the place of occurrence. Chandra Madhav Singh (PW 9) is the doctor who had held post-mortem examination on the dead body of the deceased. Sheo Shankar Pathak son of Chhakauri Pathak (PW 1), Mithlesh Kumar Pathak (PW 5) and informant Raj Narain Singh Yadav (PW 8) are said to be the eye-witnesses to the occurrence. Sheo Shankar Pathak son of Ram Jatan Pathak (PW 3) and Chatura Nand Pathak (PW 4) are hearsay witnesses. Dilip Kumar (PW 1) is the I.O. 5. Sheo Shankar Pathak son of Chhakauri Pathak (PW 1), Mithlesh Kumar Pathak (PW 5) and informant Raj Narain Singh Yadav (PW 8) are said to be the eye-witnesses to the occurrence. Sheo Shankar Pathak son of Ram Jatan Pathak (PW 3) and Chatura Nand Pathak (PW 4) are hearsay witnesses. Dilip Kumar (PW 1) is the I.O. 5. Chandra Madhav Singh (PW 9) in his evidence has stated that on 5.7.1985 he was posted as Civil Assistant Surgeon at Buxar hospital and on the same day he held post-mortem examination on the dead body of the deceased Brij Mohan Pathak and found following ante mortem injuries on the dead body : (i) one incised wound 1" x 1/2" x fascia muscles and vessels deep just above right clavicle in its middle portion. Margin clear cut and blood clot around the wound. (ii) one incised wound 1/2" x 1/4" x 1/2" with blood clot around the margins which were clean cut just above the iliac crest. (iii) one incised wound with clear cut margines and with blood clot around 1" x 1/2" x 1/2" in the lower part of centre of back. According to him cause of death was shock and haemorrhage as a result of injury No. (i) which was caused by sharp cutting and pointed weapon which may be a chhura and injury Nos. (ii) and (iii) were also caused by chhura and injury No. (i) was sufficient in ordinary course of nature to cause the death of the deceased. Time elapsed since death and post-mortem was within 12 to 24 hours. From the evidence of this witness it appears that the death of deceased was homicidal. Now it has to be seen what evidence has been led on behalf of prosecution to prove its case against the appellants. 6. Raj Narain Singh Yadav (PW 8), the informant, in his evidence has stated that on the day of occurrence he was engaged to work on daily wage basis in the field of deceased and at about 12 Oclock in the noon he along with deceased went in the field of deceased for ploughing and sowing. They had carried plough, spade, seeds, bullock etc. with them and when they reached the field of deceased he saw both the appellants standing near a machan in their field. They had carried plough, spade, seeds, bullock etc. with them and when they reached the field of deceased he saw both the appellants standing near a machan in their field. The deceased asked him to plough the field and he himself started dressing the western ridge of the field where there is a drain. Appellant Nilesh Pathak came there and asked the deceased to allow the drain to remain because in absence of drain there would be difficulty in irrigation. Thereafter when the informant completed one round of ploughing the deceased asked him to drop the seeds and when he started sowing the seeds appellant Nilesh Pathak caught hold of the waist of the deceased and threw him on the ground and appellant Viveka Nand Pathak gave a chhura blow on the neck of deceased and when deceased tried to escape appellant Viveka Nand Pathak gave two chhura blows to the deceased and the deceased fell on the ground and thereafter, both the appellants taking away the spades and throwing the same near their machan fled away. He went near the deceased and found him dead. He told about the occurrence to Chatura Nand Pathak (PW 4) and Sheo Shankar Pathak (PW 3). He has further said that this occurrence was seen by Mithlesh Kumar Pathak (PW 5), Homan Pathak @ Sheo Shankar Pathak (PW 1). PW 1 and PW 5 have also supported the case of prosecution and have stated that appellant Nilesh Pathak threw the deceased on ground and appellant Viveka Nand Pathak gave chhura blows to the deceased and the deceased died at the spot. PW 3 and PW 4 in their evidence have stated that on hearing the hulla they went to the place of occurrence and saw the deceased lying dead with injuries and they were told by witnesses, namely, informant, PW 1 and PW 5 that appellant Nilesh Pathak had thrown the deceased on ground and appellant Viveka Nand Pathak gave chhura blows to the deceased. PW 10 who is the I.O. in his evidence has stated that he found the dead body of the deceased lying in the field of deceased and, he also found marks of ploughing in the field and there was a keraha (drain) originating from the boring of appellants and passing through the field of deceased. PW 10 who is the I.O. in his evidence has stated that he found the dead body of the deceased lying in the field of deceased and, he also found marks of ploughing in the field and there was a keraha (drain) originating from the boring of appellants and passing through the field of deceased. He has further said that he found a machan in the field of appellants which is situate adjacent east to the field of deceased and he also found bloodstains at the place of occurrence. 7. Learned Counsel appearing on behalf of appellants has submitted that PW 10, the I.O. in his evidence has stated that he went to the place of occurrence after hearing the rumours that a murder had been committed and he has also admitted that he entered this information in the station diary but no such station diary entry has been produced by the prosecution. According to him, this station diary entry was the first information and its non-production makes the case of prosecution doubtful. We are unable to accept this argument because the I.O. has not stated that he had received any information from somebody else. He has simply stated that he received rumours about the commission of murder. If an entry made in the station diary about hearing rumours of commission of murder has not been produced by the prosecution the entire case of prosecution cannot be rejected on this ground alone. From the evidence of prosecution witnesses we find that PW 1, PW 5 and PW 8 have categorically stated that appellant Nilesh Pathak threw the deceased on ground and appellant Viveka Nand Pathak gave chhura blows to the deceased resulting into his death. PW 3 and PW 4 who had reached the place of occurrence immediately after the occurrence on hearing hulla have also supported the case of prosecution by deposing that they were told by the witnesses present there about the manner of occurrence and participation of appellants. It is true that PW 3 is the father of deceased, PW 5 is the brother of deceased and PW 4 in cross-examination has admitted that his grand father and grand father of deceased were full brothers but then out of these witnesses PW 3 and PW 4 are admittedly hearsay witnesses and they had reached the place of occurrence after hearing hulla. PW 5 who is an eye-witness to the occurrence had also reached the place of occurrence after hearing hulla. Their evidence has been scrutinised carefully and we find nothing in their evidence to disbelieve them. Because they are related to deceased their evidence cannot be discarded on this ground alone. Besides this, there is evidence of PW 1 and PW 8 who are not related with the deceased. 8. In this case, both the appellants have been found guilty under Section 302/34, IPC. The case of prosecution is that appellant Nilesh Pathak threw the deceased on ground and thereafter appellant Viveka Nand Pathak gave chhura blows to the deceased resulting into his death. In the fardbeyan, it is stated that when the land of deceased was ploughed both the appellants were standing nearing a machan in their field and it was appellant Nilesh Pathak who first came from his machan to the field of deceased and requested him to allow the drain for remain and after some time appellant Nilesh Pathak threw the deceased on ground and then appellant Viveka Nand Pathak came running from his machan to the field of deceased and gave him chhura blows. In his evidence also, the informant has said that when appellant Viveka Nand Pathak came to the place of occurrence the deceased was lying fallen on the ground. The informant has further stated that he does not know on what point there was altercation between the deceased and appellant Nilesh Pathak. The statements of informant in fardbeyan and his evidence suggest that after some altercation between the deceased and appellant Nilesh Pathak on some point appellant Nilesh Pathak threw the deceased on the ground. At that time appellant Viveka Nand Pathak was standing in his own field near a machan and when appellant Nilesh Pathak threw the deceased on the ground he came running to the field of deceased and gave him chhura blows. Admittedly, appellant Nilesh Pathak was not armed with any weapon. The evidence led on behalf of prosecution does not show that appellant Nilesh Pathak shared any common intention with appellant Viveka Nand Pathak for committing the murder of deceased. Admittedly, appellant Nilesh Pathak was not armed with any weapon. The evidence led on behalf of prosecution does not show that appellant Nilesh Pathak shared any common intention with appellant Viveka Nand Pathak for committing the murder of deceased. Appellant Nilesh Pathak had gone to the field of deceased for requesting him to allow the drain to remain there and thereafter, it appears that some altercation between them took place and appellant Nilesh Pathak threw the deceased on ground and thereafter appellant Viveka Nand Pathak went to the place of occurrence running from his field and gave chhura blows to the deceased. The act of Nilesh Pathak by throwing the deceased on ground was done in the spur of moment. The evidence on record does not show that he was having any knowledge that appellant Viveka Nand Pathak was carrying a chhura. So we find that in absence of any evidence suggesting that both the appeflants shared a common intention to commit the murder of deceased the conviction of appellant Nilesh Pathak under Sections 302/34, IPC cannot be sustained. He can at best be held guilty under Section 323, IPC for throwing the deceased on the ground. But, so far as the case of appellant Viveka Nand Pathak is concerned, we find that he gave three chhura blows to the deceased which resulted into the death of the deceased. We further find that it is not a case of prosecution that appellant Viveka Nand Pathak had come prepared in the field of deceased and gave chhura blows. On the other hand, the case of prosecution is that when the deceased went to plough his field this appellant was already standing near a machan in his own field and when some scuffle between the deceased and the appellant Nilesh Pathak, who is his own brother, took place he thereafter went there running and gave chhura blows to the deceased. This circumstances shows that there was no premeditation on the part of appellant Viveka Nand Pathak to commit the murder of deceased. He gave chhura blows to the deceased when he saw a scuffle between the deceased and his brother appellant Nilesh Pathak. This suggests that blows by chhura to the deceased by him were given in the heat of passion. We, therefore, find that the case of appellant Viveka Nand Pathak comes within the ambit of Section 304, Part I, IPC. He gave chhura blows to the deceased when he saw a scuffle between the deceased and his brother appellant Nilesh Pathak. This suggests that blows by chhura to the deceased by him were given in the heat of passion. We, therefore, find that the case of appellant Viveka Nand Pathak comes within the ambit of Section 304, Part I, IPC. 9. In view of the discussions made above, the conviction of appellant Nilesh Pathak is altered from Sections 302/34, IPC to under Section 323, IPC and his sentence is reduced from life imprisonment to imprisonment for a period already undergone by him in custody. The conviction of appellant Viveka Nand Pathak is also altered from Sections 302/34 to under Section 304, Part I, IPC and his sentence to life imprisonment is reduced to a sentence of R.I. for a period of 10 years only. 10. With the aforesaid modifications, both the appeals are dismissed. Appellant Nilesh Pathak who is on bail he is discharged from the liability of his bail bonds. Appellant Viveka Nand Pathak, who is also on bail is directed to surrender before the Court blow to serve out the sentence passed against him. R.N.Prasad, J. 11 I agree. Appeals dismissed after modification.