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2001 DIGILAW 884 (PAT)

Baldeo Pandit v. State Of Bihar

2001-09-19

B.N.P.SINGH

body2001
Judgment B.N.P.Singh, J. 1. Though sole appellant was put on trial for consideration of charge brought against him under Section 304 of the Indian Penal Code, he suffered conviction under Section 304 part II of the Indian Penal Code and was sentenced to suffered rigorous imprisonment for three years and also to pay a fine of Rs. 2,000/-, in default of which he was to undergo rigorous imprisonment for a further period of six months and out of the fine paid by the appellant, 75% was to be paid to the family of the deceased. 2. The factual matrix are that in the early hour at 7.00 a.m. on 14th June, 1988, while the deceased Janardan Pandit alias Goria aged about 15 years (since deceased) had been in the field with the cattle, in the company of Tulsi Pandit (PW 3), Fattuli Pandit (PW 5), Chhabu Pandit (PW 4) and others, the cattle of the deceased strayed in the field of Baldeo Pandit, who is the appellant, and when the deceased had driven out his cattle from the field of the appellant, he was chased by him and in the process of being chased, he dropped to the ground, pursuant to which the appellant dealt blows by fists and slaps. After his grand father Sarju Yadav (PW 6) was informed about the deceased lying unconscious on account of assault made by the appellant, he proceeded for the field and met Sheo Narayan Pandit in the midway who was carrying Janardan Pandit on his shoulder. The heart and pulse of the deceased was beating and after he was moved to hospital, he was declared dead, and with these narrations fardbeyan of Sarju Pandit was recorded at Barahat Police Station at 12.30 hours on 14th June, 1988 by Sri. T.N. Ojha, officer-in-charge of the police station. The investigation commenced and in the process of collection of evidence during investigation, the police officer recorded statement of witnesses under Section 161 of the Code of Criminal Procedure, visited place of occurrence, prepared inquest report over the dead body of the deceased, sent the dead body to mortuary for post mortem examination and on conclusion of investigation laid chargesheet before the court and the appellant on being committed to the Court of Sessions, was put on trial. In the eventual trial, the prosecution examined altogether 11 witnesses which include grand father of the deceased, also those who companied the deceased to the field with the cattle on the date of incident, the doctor who held autopsy over the dead body of the deceased and also other witnesses who though did not claim to be ocular witnesses. Chabbu PW 4 was tendered by the prosecution and there was nothing in his evidence to merit consideration. Sudin Pandit PW 7 was quite formal while Khublal Pandit PW 8 was the signatory of the inquest report. Again Parmeshwar Pandit PW 9 too was tendered by the State while Anirudh Pandit PW 11 too was formal in nature. The defence too examined two witnesses ostensibly to suggest some land dispute between the parties and the trial Courts on appreciation of evidences placed on the record finding appellant not guilty under Section 304 of the Indian Penal Code, rendered verdict of guilt under Section 304 Part II of the Indian Penal Code and sentenced him in the manner stated above which is impugned in this appeal. 3. Now adverting to the evidences placed on the record one would find Sarju Pandit PW 6 reiterating his early version which he rendered before the police to set it on motion about he having been informed with regard to Janardan Pandit having been assaulted by the appellant, after the former took out his cattle from the field which had a strayed in the field of the appellant, pursuant to which the deceased dropped to the ground lying unconscious. The narrations made by this witness were that while he proceeded for the field he happened to meet Sheo Narayan Pandit in the mid way who was carrying Janardan on his shoulder and thereafter he was brought to the house and eventually he was carried to the hospital where he was declared dead. The witness would allege to have rendered statement before the police which is the sheet anchor of the prosecution case. Ashok Pandit PW 1 stated to have gone to the filed with the cattle in the company of the deceased and when cattle of the deceased strayed in the field of the appellant, he was chased by him and after he dropped to the ground, the appellant dealt blows with fists and slaps. Ashok Pandit PW 1 stated to have gone to the filed with the cattle in the company of the deceased and when cattle of the deceased strayed in the field of the appellant, he was chased by him and after he dropped to the ground, the appellant dealt blows with fists and slaps. The deceased was thereafter carried by Batan Sao and was eventually taken to hospital where he was declared dead. Tulsi PW 3 and Fattuli Pandit PW 5 too rendered narrations in the court more or less in similar terms about they having gone to the field with the cattle, when the deceased was chased by the appellant on account of the cattle of the former having a strayed in the field of the latter. The witness stated that in the process of chase when Janardan dropped to the ground, the appellant dealt blows with fists and slaps when he became unconscious. After his grand father was informed, he proceeded for the field, when he met Butan Sao who was carrying the injured on his shoulder. Ganesh Pandit PW 2 stated to have noticed quarrel in the field. He claimed to have noticed the deceased having dropped to the ground and when enquiry was made by him, he was informed by Ashok Pandit that the appellant had dealt blows on him and it was Butan who carried the injured on his shoulder. 4. Khublal Pandit Pw 8 is the signatory of the inquest report. Dr. Ram Peyare PW 10 stated to have held autopsy over the dead body of the deceased and noticed the following features on the dead body. (i) Eye closed, month closed, fresh froth from both nostrils coming out. (ii) Swelling over right side of neck 2-1/2 x 1-1/2". (iii) Swelling 4" x 2-1/2" over left side of neck. (iv) Laceration of subcutaneous issues of the neck with effusion of blood in the muscles of neck. (v) Sub clarion vessels of the left side lacerated and effusion of blood present. The death of the deceased in the opinion of the doctor was caused by aphasia due to throttling. 5 As has been stated, DW 1 examined on behalf of the appellant was stating about some land dispute between the parties and evidence of Sheikh Jalil DW 2 also was more or less in similar terms. The death of the deceased in the opinion of the doctor was caused by aphasia due to throttling. 5 As has been stated, DW 1 examined on behalf of the appellant was stating about some land dispute between the parties and evidence of Sheikh Jalil DW 2 also was more or less in similar terms. This is all the evidence that has been adduced on behalf of the State and the defence. 6. Against the finding recorded by the trial Court volume of arguments are sought to be pressed on behalf of the appellant and it is sought to be urged that though in the early version of Sarju Pandit which he rendered before the police on 14th June, 1988 at 12.30 hours, he would not state about the injured having been taken to the house after receipt of assault on him, the embellishments were sought to be introduced in this evidence which he rendered before the court about injured having been taken to the house where first medical aid was sought to be extended to him and as the condition of the injured did not improve, he was taken to hospital. The contention raised at Bar was not tenable for the simple reason that the alleged variation made by the witness in the evidence was not on material particulars of the case. The other argument canvassed on behalf of the appellant was that taking the attribution made to the appellant to be true on its face value about he having dealt blows on the deceased by fists and slaps, the appellant cannot be clothed with the intention of making assault on the injured which might have caused death. Learned counsel would urge that though doctor was stating about deceased having died of asphyxia due to throttling of the neck, no such allegations were ever attributed to the appellant about he having pressed the neck of the deceased and in quick succession the contentions are sought to be raised that possibility of the deceased sustaining injury on his person due to fall on hard substance was not ruled out even by the doctor and the last argument canvassed at Bar on behalf of the appellant was that the witnesses had been making discrepant statement about the place of occurrence and as the investigating officer has not been examined at trial, place of occurrence remained unambiguous. About evidences placed on the record, credibility of witnesses was sought to be assailed on the premises of they being family members of the deceased whose credibility was open to question. Learned counsel appearing on behalf of the State would counter the arguments advanced on behalf of the appellant and seeks to justify the finding recorded by the trial Court. 7. The facts of the case are tell a tale. Admittedly Sarju Pandit PW 6 was not an ocular witness, as he was informed by Ashok Pandit about Janardan Pandit alias Goria having been beaten by the appellant when his cattle a strayed in his field. However, he stated to have noticed Sheo Narayan Pandit carrying Janardan Pandit on his shoulder and despite all efforts made by him to save life of the deceased, he was declared dead in the hospital. The veracity of narrations made by Ashok Pandit PW 1, Tulsi Pandit PW 3 and Fattuli Pandit PW 5 cannot be possibly questioned for their credibility, as in the early version of Sarju Pandit which he rendered before the police Tulsi and Fattuli Pandit were suggested to be the persons who had accompanied the deceased to the field with cattle. As they were companions of the deceased, they claimed to have witnessed assault on his at the hands of the appellant and hence they were most probable and natural witnesses. As has been stated, Ashok Pandit too claimed to be ocular witness of the incident as he too had gone to the field along with the deceased with cattle. True it is that he is not suggested to be a witness of the incident in the early version of the informant and simply omission of his name in the first information report as an ocular witness would not constitute any infirmity in the prosecution version so as to discredit the credibility of this witness and that apart, there is no gainsaying the fact that the assault had been made on the deceased by the appellant and in that view of the matter, the evidence of Ashok Pandit appears to be credible and he appears to be a truthful witness. The sequence of events and also mode of assault transpiring throughout the prosecution case were most coherent and deserves implicit reliance to be placed on them and that apart, there was finding of the doctor which was corroborative to the evidence of ocular witnesses. True it is, as stated at Bar, no witness stated about the appellant having pressed the neck of the deceased but the witnesses are not expected to have narrated the occurrence with mathematical precision. The witnesses were stating in most uncertain term that after Janardan Pandit alias Coria dropped on the ground in the process of the chase by the appellant, the later dealt blows with lists and slaps on his person and it is not unlikely that assault proved to be fatal. Though attention of the witnesses were drawn towards the early version which they rendered before the police but they did not appear to be on the material particulars of the case. True it is that the Investigating officer has not been examined at trial and I do feel that due to non-examination of the Investigating Officer some questions remained unanswered but for that, the prosecution cannot be a casualty. Though State went for trial of the appellant under Section 304 of the Indian Penal Code, rightly the trial Court had not found him guilty on that Court and rendered verdict of guilt under Section 304 part II of the Indian Penal Code as over act attributed to the appellant did not fall under clauses 1 and 2 of Section 300 of the Indian Penal Code since he had no knowledge that death might follow, but nevertheless the act attributed to the appellant would squarely come within the mischief of Section 304 part II of the Indian Penal Code. 8. Though it is Brought to my notice by learned counsel appearing for the appellant that since the appellant has remained in custody for more than two years, a lenient view may be taken in awarding sentence, regard being had to the allegation attributed to the appellant about a child having suffered death due to overt act committed by the appellant, while upholding his conviction and sentence, the appeal is dismissed.