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2001 DIGILAW 583 (PAT)

Dilip Kumar Singh v. State Of Bihar

2001-07-13

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment 1. The sole appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life vide judgment and order, dated 5.6.1987 passed by 2nd Additional Sessions Judge, Samastipur in Sessions Trial No. 21/11 of 1983/84. 2. One Arbind Kumar Singh gave his fardbeyan on 8.6.1981 at about 8 p.m. that Ram Sagar Singh had lodged a false case for the offence under Section 379/323 of the Indian Penal Code which was pending before Samastipur Court. On 8.6.1981 at about 12 noon son of Ram Sagar Singh, namely, Dilip Kumar Singh and Vijay Kumar Singh after taking toddy came at his house. They started abusing and were ready to assault his father. There was scuffle and assault by fists and slaps. Due to the aforesaid reason at about 5 p.m. Ram Sagar Singh with lathi Dilip Kumar Singh with bhala and Vijay Kumar Singh with farsa, Kameshwar Prasad Singh with bhala and Jai Prakash Singh with dagger came. They started abusing and searching Baleshwar. They were provoking his father to come out from his house with an intention to kill him. He was going to attend the call of nature. On hearing alarm he came to his house and saw Uma Kant Singh, Chandra Madhav Prasad Singh and others already present there. His father was trying to come out from the house but his mother was preventing him. Dilip Kumar Singh and Vijay Kumar Singh caught the hair of his mother and dragged her in front of the house. Dilip Kumar Singh gave bhala blow on the neck of his mother. Vijay Kumar Singh gave farsa blow. However, due to the intervention of the persons present there the accused persons left the place. His mother was in pool of blood. She was taken to Tajpur hospital. The Doctor gave first aid and advised to take her to Samastipur hospital. On way to Samastipur his mother died. 3. On the aforesaid fardbeyan a formal First Information Report was drawn, investigation was taken up and on conclusion of investigation chargesheet was submitted against five persons including appellant Dilip Kumar Singh. On receipt of charge-sheet cognizance was taken and the case was committed to the Court of Sessions for trial. The trial Court convicted the appellant as indicated above, however, acquitted rest of the accused persons from the charges levelled against them. 4. On receipt of charge-sheet cognizance was taken and the case was committed to the Court of Sessions for trial. The trial Court convicted the appellant as indicated above, however, acquitted rest of the accused persons from the charges levelled against them. 4. The defence of the appellant was that no occurrence as alleged by the prosecution had taken place. They had been falsely implicated in the case out of enrnity. 5. The prosecution in support of its case examined fifteen witnesses out of whom PW2, PW 3, PW 4 and PW 7 claimed to have seen the occurrence. PW 5 is the informant and he also claimed to have seen the occurrence. PW 1 is the witness to the seizure of blood. PW 6 is the Doctor who gave first-aid to the deceased and referred her to Samastipur hospital. PW 8 is also a Doctor who held post-mortem over the dead body. PW 9 is the Investigating Officer. PW 10 put his signature on the fardbeyan PW 11 proved signature on the fardbeyan. PW 12 stated that paging of the case diary was done in his presence. PW 13 proved signature of the informant on the inquest-report. PW 14 proved signature of S.I. PW 15 brought material exhibits in the Court. 6. The occurrence is alleged to have taken place on 8.6.1981 at 5 p.m. Fardbeyan of the informant was recorded at about 8 p.m., i.e. within three hours of the occurrence and as such the scope of concoction of the prosecution case is ruled out as during the period the deceased was taken to Tajpur hospital where first-aid was given and while the deceased was taken to Samastipur hospital, on way she died. 7. PW 5 is informant in the case. His evidence is that at the relevant time he was going to attend the call of nature. He heard alarm and returned. He saw the accused persons in front of his house variously armed. They were provoking his father to come out from the house with an intention to kill him. His father was trying to come out from the house but his mother was preventing him. On instigation of Ram Sagar Singh, Vijay Kumar Singh and the appellant Dilip Kumar Singh caught the hair of his mother and dragged her in front of the house and got her fallen down on the ground. His father was trying to come out from the house but his mother was preventing him. On instigation of Ram Sagar Singh, Vijay Kumar Singh and the appellant Dilip Kumar Singh caught the hair of his mother and dragged her in front of the house and got her fallen down on the ground. The appellant, Dilip Kumar Singh, gave bhala blow on her neck. His mother sustaired injuries. Blood was oozing out from the injury. Vijay inflicted pharsa blow but it missed. The other accused persons also assaulted with lathi. She died on way to the hospital. The witness was examined at length but it appears that he stood the test of the cross-examination and nothing cogent could be elicited to doubt the evidence of the witness. 8. PW 2 is the father of the informant and husband of the deceased. He was main target of attack but Parvati Devi was done to death. At the relevant time he was at his house. He saw the accused persons provoking him to come out from the house so that he might killed. He tried to come out from the house but the deceased prevented him. In the meantime Vijay Kumar Singh and Dilip Kumar Singh caught hair of the deceased, dragged her in front of the house. Dilip Kumar Singh gave bhala blow on her neck. Vijay Kumar Singh dealt with pharsa but the blow missed. He saw 10-12 accused persons from the window of his room. The witness was cross-examined in detail but nothing cogent could be elicited to discard his evidence. 9. PWs 3, 4 and 7 are also eye-witnesses to the occurrence. They categorically stated that they were present at the place of occurrence and saw the entire occurrence. The appellant and other accused persons were variously armed. They were provoking father of the informant to come out from the house so that he might be killed. The father of the informant was trying to come from the house but he was prevented by the deceased. In the meantime Dilip Kumar Singh, the appellant caught the hair of the deceased and dragged her in front of the house. The appellant gave a bhalas blow on the neck. Vijay dealt with pharsa on her chest. The injured was taken to Tajpur hospital. The Doctor after giving first-aid advised to take her to Samastipur hospital and on way she died. The appellant gave a bhalas blow on the neck. Vijay dealt with pharsa on her chest. The injured was taken to Tajpur hospital. The Doctor after giving first-aid advised to take her to Samastipur hospital and on way she died. The witnesses were cross-examined at length. It appears that they stood the test of cross-examination and nothing could be taken out to doubt their evidence. 10. The Doctor who held post-mortem over the dead body also found injuries on the person of the deceased caused by bhala. The Investigating Officer inspected the place of occurrence and found blood at the place of occurrence. The blood stained earth was seized in presence of the witnesses. Therefore, it is evident that oral evidence of the witnesses is also corroborated by the evidence of PW 8 and PW 9. 11. Learned Counsel for the appellant, however, pointed out that the occurrence is alleged to have taken place on 8.6.1981. From the First Information Report itself it appears that the First Information Report was sent to the Court through special messenger but it was received in the Court on 19.6.1981, i.e., after about 11 days of the occurrence but no reason has been assigned about such delay in receipt of the First Information Report in the Court. The aforesaid fact indicates the fabrication and concoction of the case. Fardbeyan was not recorded at the relevant time nor First Information Report was drawn as alleged by the prosecution. Everything is antedated. In this regard it would be pertinent to mention herein that the evidence of the prosecution witnesses is consistent on all material points as discussed above. The oral evidence is also corroborated by the evidence of the Doctor and the finding of the Investigating Officer. It is true that delay in receipt of First Information Report in the Court raises suspicion with regard to concoction and fabrication of the case but such delay alone is not sufficient to hold that in fact the prosecution case has been fabricated and concocted. For holding that recording the fardbeyan and drawing of First Information Report were antedated there must be some other cogent reason on the record. For holding that recording the fardbeyan and drawing of First Information Report were antedated there must be some other cogent reason on the record. In the case of Madru Singh and others v. State of Madhya Pradesh, AIR 1997 SC 3527 , the Apex Court has held that merely because the copy of the FIR was received after three days of the incident, no conclusion can be drawn that FIR was not lodged on the same day after the incident or that it was antedated. The Apex Court while dealing with such question held that other circumstances must appear from the materials on record to indicate that, in fact, there was scope of fabrication and concoction of the case. Learned Counsel for the appellant could not be able to point out the other circumstances to come to a conclusion that, in fact, the prosecution case has been fabricated and recording of fardbeyan and drawing of the FIR were ante-dated. Thus, on consideration as discussed above, we find no merit in the contention of the learned Counsel for the appellant. 12. Learned Counsel for the appellant next contended that conviction of the appellant under Section 302 of the Indian Penal Code is bad in law as there was no intention of the appellant to kill Parwati Devi, the deceased. Moreover, there is no allegation that the appellant repeated the blow. Learned Counsel in support of his submission relied upon a decision in the case of K. Ramakrishnan Unnithan v. State of Kerala, 1999 (3) SCC 309 : 1999 (1) East Cr C 976 (SC), wherein the Apex Court has held that in view of the evidence on record it is established beyond reasonable doubt that the appellant had given one blow but the blow no doubt was quite severe, as a result of which the intestines had protruded out. It is, however, crystal clear that the appellant had no animosity against the deceased and he was involved because of the altercations with PW 1. It is, however, crystal clear that the appellant had no animosity against the deceased and he was involved because of the altercations with PW 1. The scenario in which the appellant has been stated by the eye-witnesses to have given one blow on the deceased it is difficult to hold that he gave the blow in question either with intention of causing murder of the deceased or he can have said to have the requisite knowledge that the death would otherwise be inevitable result and as such it has to be held that the accused did not commit the offence under Section 302 but under Part II of Section 304 of the Indian Penal Code. In the instant case, it is evident that target was Baleshwar Singh, the husband of the deceased. He was in the house. The appellant and others were provoking him to come out from the house with an intention to kill him but the deceased was preventing him and as such she was caught and thrown on the ground and the appellant is alleged to have given a bhala blow. The facts of the case are similar to that of the case before the Supreme Court and as such we find that aforesaid case, i.e., K. Ramakrishnan Unnithan v. State of Kerala, is applicable in the facts and circumstances of the case. Thus, the conviction of the appellant under Section 302 of the Indian Penal Code is converted into one under Section 304, Part II of the Indian Penal Code and the appellant is sentenced to the period already undergone. 13. In the result, the appeal is dismissed with modification as indicated above.