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2002 DIGILAW 822 (PAT)

Girija Singh v. State Of Bihar

2002-07-30

S.N.JHA, T.P.SINGH

body2002
Judgment S.N.Jha and T.P.Singh JJ. 1. These two appeals arise out of judgment and order of the 3rd Additional Sessions Judge, Nawadah in Sessions Trial No. 82/123 of 1985/86. There are two appellants each in both the appeals. They along with Manoj Kumar and Dilip Kumar were charged with being members of an unlawful assembly and committing murder of Sachchidanand Singh in prosecution of the common object of the unlawful assembly, punishable under Sections 302/149 of the Penal Code, and, further assaulting Parmanand Singh with an intention to kill him punishable under Section 307 of the Penal Code. Said Manoj Kumar and Dilip Kumar have been acquitted. Appellant Sharban Singh has been convicted under Section 302 of the Penal Code and sentenced to rigorous imprisonment for life. Appellant Girija Singh has been convicted under Section 302/34 of the Penal Code and sentenced to rigorous imprisonment for life. Appellant Awadhesh Prasad Singh has been convicted under Section 307 of the Penal Code and sentenced to rigorous imprisonment for five years. Akhilesh Kumar @ Akhilesh Kumar Singh has been convicted under Section 323 of the Penal Code and sentenced to rigorous imprisonment for one year. 2. The prosecution was set in motion on the basis of Fardbeyan of Parmanand Singh recorded by A.S.I. of Police Raghubans Singh at Hasua State dispensary on 2.1.1985 at 1.30 P.M. as per the said version on 2.1.1985 at about 7 A.M. when his elder brother Sachchida Singh (or Sachchidanand Singh) went towards south of his house to tie his bullock, Sharwan Singh asked him not to do so. Sachchida Singh, however, tied the bullock saying that the land belonged to him and he would tie the bullock there. As soon as he said this, the accused persons (appellants and said Manoj Kumar and Dilip Kumar) variously armed came there and Girija Singh ordered to finish Sachchida Singh. On his order Sharwan Singh gave saif blow on Sachchida Singh which hit him on his head and he fell down. After he fell down, Manoj Kumar, Dilip Kumar and Akhilesh Kumar @ Akhilesh Kumar Singh gave lathi blows causing injury on his back. Parmanand Singh ran towards the place of occurrence to save his brother when Awadhesh Prasad Singh gave him saif blow on his head. 3. On the basis of the said Fardbeyan, Hasua P.S. Case No. 1 of 1985 under Section 307 etc. Parmanand Singh ran towards the place of occurrence to save his brother when Awadhesh Prasad Singh gave him saif blow on his head. 3. On the basis of the said Fardbeyan, Hasua P.S. Case No. 1 of 1985 under Section 307 etc. of the Penal Code was registered. A.S.I. Raghubans Singh recorded the statements of witnesses and completed other formalities. At the end of the investigation S.I. Balmiki Prasad submitted charge-sheet against all the six accused. It is relevant to mention here that Sachchida Singh died during investigation on 16.1.1985 and, accordingly, charge-sheet was submitted under Sections 302/34 etc. of the Penal Code. 4. At the trial which followed, the prosecution examined nine witnesses to prove its case, five of whom, namely, Bakeshwar Prasad Singh (P.W. 1), Babu Lal Singh (P.W. 2), Sumitra Devi (P.W. 3) and Mudrika Singh (P.W. 4), besides the informant Parmanand Singh (P.W. 5) were examined as material witnesses, all of whom stated to have seen the occurrence in the manner stated in the Fardbeyan. The prosecution also examined Dr. Jagdeo Prasad who examined the injuries on the person of the deceased as well as Parmanand Singh as P.W. 6 and Dr. Ram Krishna Prasad, who held post mortem on the deceased as P.W. 7 Raghubans Singh, who had conducted the investigation was examined as P.W. 9 while Balmiki Prasad who submitted chargesheet was examined as P.W. 8. The accused did not examine any witness in defence. They took the usual plea of innocence and false implication. At the end of the trial, the trial court convicted and sentenced the appellants while acquitting two others as mentioned above. 5. Sri Rana Pratap Singh, learned counsel for the appellants, did not challenge the occurrence as alleged by the prosecution. He, however, submitted that the evidence on record does not suggest that there was any intention on the part of the appellants to kill the deceased or even to cause such bodily injury as likely to cause to death. The occurrence took place on spur of moment preceded by heated exchange of words and altercation and, therefore, Sharban Singh could at best be convicted under Section 304 Part II of the Penal Code. Similarly, as regards Awadhesh Prasad Singh, he submitted that there being no intention to kill Parmanand Singh, he could be convicted under Section 326 of the Penal Code. Similarly, as regards Awadhesh Prasad Singh, he submitted that there being no intention to kill Parmanand Singh, he could be convicted under Section 326 of the Penal Code. If the conviction of Sharban Singh is altered in the manner suggested. the conviction of Girija Singh would automatically stand altered accordingly. Elaborating his plea that there was no premeditation or intention to kill the deceased, he submitted that Sharban Singh was armed with saif and though he is alleged to have given saif blow on the head of the injured, no incised injury was found in the post mortem. As per the post mortem report the injury had been caused by hard blunt substance. If Sharban Singh gave the blow by the blunt portion of saif it cannot be said that there was any intention to kill the deceased. He submitted that evidence is consistent on the point that prior to assault there had been heated exchange of word and altercation on the point of tying of bullock. On the point of altercation and heated exchange of words, counsel referred to the evidences of eye witnesses, namely, P.Ws. 1 to 5. On the point of assault also he referred to their evidence pointing out that four of them, nameiy, P.Ws. 1, 2, 3 and 4 unanimously stated that they could not say as to whether the deceased was hit by saif or lathi. From the evidence of P.W. 1 it appears that the land in question belonged to a third person and both sides were vying to purchase it from him. The appellants had paid bai-beyana but the deceased claimed to have purchased it though, it was submitted, no document was produced to show the actual purchase. 6. The occurrence not being challenged on behalf of the appellants the only point for consideration is whether the conviction of Sharban Singh and Girija Singh should be altered to Sections 304 Part II and 304 Part II/34 of the Penal Code respectively. Similarly, whether the conviction of Awadhesh Prasad Singh should be altered to Section 326 of the Penal Code. It is to be kept in mind that although all the appellants were charged conjointly for committing the offence under Sections 302/149 of the Penal Code, they have been convicted for individual offences. Similarly, whether the conviction of Awadhesh Prasad Singh should be altered to Section 326 of the Penal Code. It is to be kept in mind that although all the appellants were charged conjointly for committing the offence under Sections 302/149 of the Penal Code, they have been convicted for individual offences. While Sharban Singh has been convicted under Section 302 and Girija Singh has been convicted under Section 302/34 of the Penal Code the other two appellants have been convicted for their individual acts under Sections 307 and 323 of the Penal Code, respectively. 7. We find substance in the argument of learned counsel for the appellants that the act was committed without any premeditation. The evidence is consistent on the point that after the deceased tried to tie the bullock on the land having area of 2/3 decimals, heated exchange of words took place which resulted in altercation and finally the occurrence. As noticed above, both sides were interested in purchasing the land which belonged to a third person. It appears that on the basis of bai-beyana Sharban had started tying bullock but after the land was purchased by the deceased he objected to the Sharbans tying the bullock. When the deceased expressed determination to continue tying the bullock as before, at that point of time, Sharban Singh whose house was situated 2-3 houses from the place of occurrence brought the weapons and assault took place. The manner in which the occurrence took place leaves little for doubt that it was not a premeditated act on the part of the assailants. We are also satisfied that the intention was not to kill. Had the intention been to kill, Sharban would have given blow by the sharp edged portion of saif The injury by hard blunt substance having been found we are inclined to think that the intention was only to cause injury and not to kill the deceased. As regards Parmanand Singh, it is true that an incised wound in size of 1" x 1/4" x bone deep was found but it had cut only periosteum which consists of fibrous membrane forming the outer coating of bone. Having regard to the injury found on the person of Parmanand Singh we are again inclined to the view that the intention was only to cause injury. Having regard to the injury found on the person of Parmanand Singh we are again inclined to the view that the intention was only to cause injury. In any view, having accepted the submission as regards the main assailant Sharban Singh it would be in the ends of justice to alter the conviction of Awadhesh Prasad Singh to Section 326 of the Penal Code. 8. In the case of Hardev Bhanji Joshi vs. State of Gujrat reported in AIR 1993 SC 297 , on identical facts the conviction of the appellant was altered from Section 302 to Section 304 Part II of the Penal Code. The court noticed that though the deceased was given blow by axe, the injury did not show that the sharp edge of axe was used. The court further noticed that the whole thing had happened in a sudden manner. The Court observed that had the appellants intention been to cause death he would have used the sharp edged portion of the axe. The very fact that he used blunt side of the axe shows that he had no intention to cause death. Further, the Court held, it was not the premeditated act on the part of the appellant. The conviction of the appellant was accordingly converted from Section 302 to Section 304 Part II of the Penal Code and he was awarded sentence of five years rigorous imprisonment. 9. Following the above decision we are of the view that ends of justice will be served by giving similar treatment to Sharwan Singh. We, accordingly, convict him under Section 304 Part II of the Penal Code and sentence him to undergo rigorous imprisonment for five years. We are informed that he remained in jail during course of investigation, trial after the conviction for about one year. He is, thus, directed to surrender in the court below to serve the remaining period of sentence. 10. Awadhesh Prasad Singh is convicted under Section 326 of the Penal Code instead of Section 307 of the Penal Code. As regards sentence, considering that the occurence took place 17 years ago and the facts and circumstances we are of the view that sentence of fine would serve the ends of justice. He is thus sentenced to fine of Rs. Awadhesh Prasad Singh is convicted under Section 326 of the Penal Code instead of Section 307 of the Penal Code. As regards sentence, considering that the occurence took place 17 years ago and the facts and circumstances we are of the view that sentence of fine would serve the ends of justice. He is thus sentenced to fine of Rs. 5,000/- (Five thousand) which he must deposit in the court below within one month payable to the victim i.e. Parmanand Singh, failing which he will be liable to serve imprisonment for three months. 11. Girija Singh has been convicted under Sections 302/34 of the Penal Code. His conviction is altered to Section 304 Part II/34 of the Penal Code. As he did not commit any overt act, he is sentenced to the period already undergone. Akhilesh Kumar @ Akhilesh Kumar Singh has been convicted under Section 323 of the Penal Code and sentenced to undergo rigorous imprisonment for one year. In his case, without disturbing the conviction we would sentence him to the period already undergone. 12. In the result, the appeals are dismissed subject to the above modification in the conviction and sentence.