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2002 DIGILAW 1454 (PAT)

Arshad Reza Khan v. State of Bihar

2002-12-20

R.S.GARG, S.N.JHA

body2002
JUDGEMENT S.N.JHA.: - The sole appellant has been convicted under Section 302 of the Penal Code and sentenced to rigorous imprisonment for life. 2. The prosecution was set in motion on the report of one Shah Neyaz Khan of Village Kundwa, PS Kesharia, District East Champaran (hereinafter referred to as the 'informant'). On 21.6.93 at 10-30 PM he stated before Sub Inspector R.B.Yadav at Primary Health Centre, Kesharia that on 19.6.93 in the evening Firoz Khan, son of Reyaz Ahmad Khan and Affaque Khan, son of Tanvir Khan were playing Lathi. In the meantime Arshad Reza Khan (the appellant herein) came there and slapped Firoz. The mother of Firoz asked him why he had slapped her son. Upon this, the appellant assaulted Firoz's mother and aunt and also abused them. On 21.6.93 the informant asked the appellant why he had abused his mother and aunt and assaulted them. At this, the appellant threatened him and said that he would kill someone and went away. At 8-45 PM the informant's uncle (Mama) Zafir Ahmad Khan called the appellant's father and questioned him regarding the occurrence. This made the appellant angry. Meanwhile the informant along with his brother Shah Newaj Khan, decesased of this case, was returning to his house from the bathan at about 9 PM. When they reached near the house, the appellant suddenly came there and attacked Shah Newaj Khan with dagger causing injuries on his chest, stomach and back. Shah Newaj collapsed and fell down. The informant tried to save his brother but he was driven away by the appellant putting him in fear by dagger. The informant stated that he saw the occurrence in the light of the lantern burning at the darwaja of his house. He raised alarm upon which Ekram Khan, Sagir Ahmad Khan, Hazrat Ansari, Tajuddin Diwan and others came. Shah Newaj was taken to the hospital on a jeep. By the time they reached there he died. 3. On the basis of above report Kesaria PS Case No. 46/93 was registered under Section 302 of the Penal Code and the investigation commenced. S.I. Ram Bilash Yadav who had recorded the statement took up the investigation. He made inquest on the dead body of the deceased, took steps for its postmortem and later recorded the statements of the witnesses. On the basis of above report Kesaria PS Case No. 46/93 was registered under Section 302 of the Penal Code and the investigation commenced. S.I. Ram Bilash Yadav who had recorded the statement took up the investigation. He made inquest on the dead body of the deceased, took steps for its postmortem and later recorded the statements of the witnesses. After completing necessary formalities he submitted charge-sheet against the appellant and he was thus put on trial. 4. At the trial the prosecution examined seven witnesses to prove its case, five of whom namely PW 1. Zaheer Ahmad Khan, PW 2 Hazrat Ansari, PW 3 Tajuddin Ahmad, PW 4 Ekram Khan and PW 6 Neyaz Ahmad Khan were examined on facts. The doctor who held postmortem namely Dr. Md. Zaheer was examined as PW 5. The Investigating Officer, S.I. Ram Bilash Yadav, was examined as PW 7. The appellant also examined one witness namely Mehandi Hussain Khan in his defence. I shall breifly refer to their evidence hereinafter. 5. P.W. 1 Zaheer Ahmad Khan stated that when he was at the darwaja of one Mehandi Hussain he heard hulla and when he came on the road, he saw that father of the appellant, Kamrul Imam Khan, was snatching dagger from him. He was able to snatch the dagger and make him flee away. The witness claimed to have identified the appellant in the torchlight. In cross - examination he said that he had seen Kamrul from a distance of 2 feet. It may be recalled that as per the informant's version, PW 1, his Mama, had called Kamrul to tell him about the occurrence in which the appellant had assaulted the informant's mother and aunt which made him angry. The evidence of PW 1 especially about presence of Kamrul thus corroborates the informant's version. It was natural on the part of Kamrul who was present nearby to come to the rescue of the appellant, snatch the dagger from him and make him run away from the place. PW 1 further stated that the informant who was catching hold of Shah Newaz, then injured, had told him that it was the appellant who had stabbed his brother i.e. the deceased. This witness stated that he along with others took the injured to hospital where the doctor declared him to be dead. 6. PW 1 further stated that the informant who was catching hold of Shah Newaz, then injured, had told him that it was the appellant who had stabbed his brother i.e. the deceased. This witness stated that he along with others took the injured to hospital where the doctor declared him to be dead. 6. PW 2 Hazrat Ansari stated that when he came to the place of occurrence on hulla he saw the deceased in an injured condition. He also saw the appellant fleeing away. He identified the appellant and the deceased in the torchlight. The informant disclosed that it was the appellant who had stabbed his brother. This witness too stated about his taking the injured to the hospital. 7. PW 3 Tajuddin Ahmad too stated that he identified the appellant in the torchlight when he was running away. When he was running away he had once turned and looked back. PW 4 Ekram Khan stated that he had gone to see Mehandi Hussain who was indisposed. On hulla he came out of the house and saw the appellant coming with his father i.e. Kamrul Imam Khan. The appellant had a knife. He identified him in the flash of torchlight. When he further proceeded he saw Shah Nawaj lying in pool of blood. He also saw Zaheer Ahmad Khan, Hazrat Ansari, Sagir Ahmad and others there. 8. PW 6, the informant himself, reiterated his fardbeyan version. After narrating the incident of 19.6.93 and the earlier events of 21.6.93, he stated that at 9 PM when he along with his brother Shah Newaj Khan was returning from the bathan, the appellant suddenly came there and inflicted four knife blows to Shah Newaj. The appellant also chased him. He disclosed that questioning of father of the appellant Kamrul Khan about the incident of 19.6.93 made both the appellant and Kamrul Khan angry. Out of annoyance the appellant committed the crime. In the morning of the day of occurrence itself the appellant had stated that he would kill some one. In cross-examination he stated that the bathan is at a distance of 80-85 laggis from the place of occurrence. He and his deceased brother had remained at the bathan for 2-2.1/2 hours. While coming to their house, his brother was walking ahead. He was 4 cubits behind him. At that point of time the appellant came running from the southern direction. He and his deceased brother had remained at the bathan for 2-2.1/2 hours. While coming to their house, his brother was walking ahead. He was 4 cubits behind him. At that point of time the appellant came running from the southern direction. He gave first blow on the chest on left side. He then gave other blows. He stated that light was coming from the lantern. 9. At this stage the findings of the doctor may be noted. He found four injuries on the body of the deceased which he described as follows:- (i) Incised wound on the lateral part of left shoulder joint size 2"X1/2"X1/4" (ii) Incised wound on lateral aspect of left chest in the line of nipple, size 1.1/2X1"X Cavity deep. (iii) Incised wound on left flank below costal margin, size 1.1/2"X 1"X cavity deep. (iv) Incised wound on back left to midline at the level 12th thoracic vertibre, size 5"x3" muscle deep, with partial cut on 12th thoracic vertibre and shirospinales muscle. The above injuries would appear to be in conformity with the alleged manner of occurrence. 10. Shri R.N. Verma, learned counsel for the appellant, submitted that the evidence suggests that it was a dark night. The claim of the informant - the only eye witness to the occurrence - to have identified the appellant in the light of the lantern burning at his darwaja is doubtful. Though, as seen above, other witnesses too claimed to have seen the appellant fleeing away from the place of occurence with dagger in the torch light, I am of the view that the appellant and the informant being residents of the same village in fact relatives and close neighbours - there was no difficulty in identifying him even in the darkness of night. It is to be kept in mind that the informant was in the company of the deceased. Both of the them were returning to the house together. The informant was following 4 cubits behind him. This evidence came in the cross-examination of the informant. 11. In fact, the occurrence committed in the backdrop of events which had taken place on 19.6.93 as well as 21.6.93, immediately before the occurrence, makes the whole prosecution case natural and probable. Two children had fought over a very trifle matter which led to assault on one of them by the appellant. 11. In fact, the occurrence committed in the backdrop of events which had taken place on 19.6.93 as well as 21.6.93, immediately before the occurrence, makes the whole prosecution case natural and probable. Two children had fought over a very trifle matter which led to assault on one of them by the appellant. When the mother of the victim boy protested she was abused and assaulted. The victim boy's aunt was also assaulted. On 21.6.93 in the morning when the informant asked the appellant as to why he had abused and assaulted his mother and aunt, the appellant stated that he would kill someone. Later in the evening at 8.45 P.M. when informant's Mama, P.W.1 Jahir Ahmad Khan, called the appellant's father, Kamrul Imam Khan, to tell him about the conduct of his son, the appellant was enraged. Soon thereafter at 9.P.M. he gave vent to his anger when he found the appellant and his deceased brother returning to the house from bathan. 12. I find nothing in the evidence of the informant to doubt its veracity. As a matter of fact, evidence of the informant finds enough corroboration from P.W. 1 when he stated that he saw Kamrul Imam Khan snatching the dagger from the appellant and asking him to flee away. As already mentioned above, Kamrul Imam Khan had been called by P.W. 1 to his house to protest against the conduct of the appellant. The appellant was apparently there and as per the evidence of the informant both Kamrul and the appellant were angry, on being told about .the latter's conduct. At that point of time, it appears, the appellant saw the informant and the deceased coming to their house. Immediately he ran towards them, gave knife blows in quite succession. When the informant started shouting Kamrul ran to the place, snatched the dagger from the appellant's hand and asked him to flee away. This was seen by P.W. 1 who had also rushed to the place of occurrence on hearing the shouts. Later, P.Ws. 2, 3, and 4 also reached there and saw the appellant fleeing in torchlight. 13. Counsel for the appellant submitted that the lantern or the torch, the alleged means of identification, were not produced in Court. Nor blood was seized from the place of occurrence which makes the place of occurrence itself doubtful. Later, P.Ws. 2, 3, and 4 also reached there and saw the appellant fleeing in torchlight. 13. Counsel for the appellant submitted that the lantern or the torch, the alleged means of identification, were not produced in Court. Nor blood was seized from the place of occurrence which makes the place of occurrence itself doubtful. As regards blood a specific suggestion was put to the Investigating Officer about the absence of blood which he definitely denied. He rather stated that he found blood in large quantity at some places and in drops at some places. He also stated about seizure of the lantern vide seizure list. It is relevant to mention here that according to the Investigating Officer the appellant appeared before him on 22.6.1993 i.e. a day after the occurrence, and he had found blood on his trousers. 14. It is to be kept in mind that the occurrence was reported to the Police at 10.30 P.M. i.e. within one and half hours of the occurrence at the Primary Health Centre, Kesaria five Kms away from the P.O. village, where the deceased was taken in an injured condition. Counsel for the appellant submitted that in view of cutting in the fardbeyan it is doubtful that the fardbeyan was recorded at 10.30 P.M. It is true that in the heading portion of the fardbeyan there is some cutting regarding the time of report. However, on close reading it appears that time of report was mentioned as 10.30 (or 10.40) hours which was corrected as 22.30 hours. There are two ways of describing the time - one in terms of AM and PM and the other in terms of hours. The time "10.40 hours" was clearly a mistake; for this would have meant that the case was reported at 10.30 A.M. The occurrence itself took place at 9 PM about which there is no dispute. If it were to be mentioned in terms of hours then, it had to 22.30 hours since the occurrence was being reported in the night. The Officer Incharge wrongly mentioned the time as 10.30 hours. He rightly corrected it as 22.30 hours. There is no dispute about the date of report as, besides the informant, the Officer Incharge and the witness too mentioned the same date at the bottom of the fardbeyan. The Officer Incharge wrongly mentioned the time as 10.30 hours. He rightly corrected it as 22.30 hours. There is no dispute about the date of report as, besides the informant, the Officer Incharge and the witness too mentioned the same date at the bottom of the fardbeyan. It would therefore follow that the occurrence reported in the night at 10.30 hours had to be mentioned as either 10.30 P.M. or 22.30 hours which was not done. I thus, do not find any substance in the argument of the counsel. Though there was cutting it did not amount to interpolation. It only means that the mistake was corrected. 15. Once it is accepted that the case was lodged at 10.30 PM it would add strength to the prosecution case, where the occurrence is reported within one-and-a half hours, that too at a distance of 5 Kms, there is little chance of concoction and false implication. In the instant case, further, there was no motive to falsely implicate the appellant. 16. Counsel then submitted that the appellant was deprived of a valuable right available to an accused under Section 313 of the Code of Criminal Procedure as he was not given any opportunity to explain the circumstances appearing against him at the conclusion of the prosecution evidence. Counsel pointed out that the only question that the trial Court asked the appellant under Section 313 Cr. P.C. was as to what he had to say about the evidence of the witnesses who had deposed to the affect that on 21.6.93 he had committed the murder of Shah Newaj Khan at Village Kundwa PS Kesaria District West Champaran. 17. Section 313 Cr P.C. provides that in every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court shall question him, generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. It is true, as submitted on behalf of the State, that the accused has to be questioned 'generally' about the case, but it does not mean that general questions should be put to him. The manner in which the examination of the accused was conducted by the trial Court left much to be desired. If I may say so, the trial Court merely paraphrased the wordings of the charge. The manner in which the examination of the accused was conducted by the trial Court left much to be desired. If I may say so, the trial Court merely paraphrased the wordings of the charge. The question for consideration however is whether the incomplete or defective examination of the accused would vitiate the conviction. 18. In Moseb Kaka Chowdhry & anr Vs. State of West Bengal, 1956 SC 536, the Apex Court has held that the judgement is not to be set aside merely by reason of inadequate compliance of Section 342 Cr. PC. (of 1898 corresponding to Section 313 of the new Cr. P.C.) unless prejudice is shown. it would be useful to quote the questions put to the accused in that case and his reply thereto as under:- Q. You have heard the charges made and the evidence adduced against you. Now say, what is your defence? What have got to say? A. I am innocent. Q. Will you say anything more? A. No. Q. Will you adduce any evidence in defence? A. No. The Supreme Court having noticed the above questions - answers observed as under:- “There can be no doubt that this is very Inadequate compliance with the statutory provisions of S. 342, Criminal P.C. It is regrettable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this Court, in various decisions commencing :Tara Singh V. the State," 1951 S.C. 441 (AIR V 38) (B) on a due and fair compliance with the term of S. 342, Criminal P.C. But it is also well recognised that a judgement is not to be set aside merely by reason of inadequate compliance, with S. 342, Criminal P.C. It is settled that clear prejudice must be shown. 19. The question for consideration thus is whether the appellant can be said to have suffered any prejudice on account of inadequate examination under Section 313 Cr.P.C. As the language of Section 313 goes, an accused has to be given opportunity" to explain any circumstances appearing in the evidence against him," after the witnesses for the prosecution have been examined. The instant case is based on the direct evidence of the eye witness - one of whom saw the appellant committing the murder while others saw him fleeing away (after committing the murder) from the place of occurrence. The instant case is based on the direct evidence of the eye witness - one of whom saw the appellant committing the murder while others saw him fleeing away (after committing the murder) from the place of occurrence. Where the prosecution rests wholly or partly on circumstantial evidence, any circumstance appearing in the evidence against the accused must be put to his notice. For example, an accused may have made judicial confession or on his pointing out the dead body or the weapon by which the crime was committed may be discovered. If evidence on this point is brought on record at the trial, an accused has to be asked to explain. If this opportunity is not given, that circumstance cannot be taken into account against him. Where the occurrence is seen by the witnesses and they depose to that effect in course of their evidence in Court, the sum total of their evidence is that the accused committed the crime as alleged by them. The appellant in the instant case was aware of the prosecution case from the very begining. No new circumstance came in the evidence, relied upon by the prosecution. If it were so, that particular circumstance or circumstances could be ignored, as was done in the cases reported in AIR 1984 Supreme Court 1922 and (200) 8 SCC 382, Para 28. In the facts of the case, I do not think the appellant suffered any prejudice on account of inadequate examination under Section 313. I thus do not find any merit in the contention of the Counsel. 20. I am of the view that the prosecution has succeeded in proving its case beyond all reasonable doubts. However in the facts and circumstances, I am further of the view that the conviction of the appellant should be altered from Section 302 to Section 304 Part II of the Indian Penal Code. 21. From the evidence it appears that the appellant is a person of highly irascible temperament. The very genesis of the occurrence was his act of slapping a child, Firoz Khan, while he was playing lathi with another child. When Firoz's mother complained, she was also assaulted and abused. In the morning of 21.6.93 when again complaint was made, he again flared up and stated that he would kill someone. The very genesis of the occurrence was his act of slapping a child, Firoz Khan, while he was playing lathi with another child. When Firoz's mother complained, she was also assaulted and abused. In the morning of 21.6.93 when again complaint was made, he again flared up and stated that he would kill someone. In the evening when his father was called by P.W. 1 to tell him about the conduct of the appellant he again got enraged. This is the consistent case of the prosecution right from the begining. According to prosecution case the occurrence took place at 9 P.M. while his father had been summoned for questioning at 8.45 P.M. Though in the morning he had given a bald threat that he would kill someone, prima - facie, it appears that murder of Sah Newaj was committed without premeditation and in the heat of passion in the wake of complaint against his conduct. It may not be out of place to mention that suggestion was made to some of the prosecution witnesses to the effect that the appellant used to take mandrex which indicates that he was not a person of cool disposition. He used to react for nothing. Apparently when his conduct was brought to the notice of his father he got angry and in the heat of moment committed the crime. In the facts and circumstances, the case would seem to be covered by exception 4 of Section 300 IPC. The appellant would thus be guilty of culpable homicide not amounting to murder. 22. The question which would then arise is as to whether he should be convicted under Part-I or Part-II of Section 304. Part-I is attracted where the act by which the death is caused is done with intention of causing death or to cause such bodily injury as likely to cause death, whereas Part-II is attracted where the act is done within the knowledge that it is likely to cause death but without any intention to cause the death or to cause such bodily injury as is likely to cause death. In the facts and circumstances, it appears that the appellant did not intend to cause death or cause such bodily injury as was likely to cause death. He inflicted knife injuries. In the facts and circumstances, it appears that the appellant did not intend to cause death or cause such bodily injury as was likely to cause death. He inflicted knife injuries. He certainly had the knowledge that it was likely to cause death or such bodily injury as was likely to cause death must be assumed. In my opinion, thus the case would fall within the ambit of Part-II of Section 304. Part-II provides imprisonment up to 10 years or with fine or with both. In the instant case appellant has remained in custody throughout since the time of occurrence i.e. for more than 9 years. The ends of justice would be served by awarding him sentence of imprisonment for the period already undergone. 23. In the result, the conviction of the appellant is altered from Section 302 to Section 304 Part-II of the Indian Penal Code and he is awarded sentence of imprisonment for the period already undergone. He is thus directed to be released forthwith, if not wanted in any other case. 24. The appeal stands dismissed with modification in the conviction and sentence as mentioned above.