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2003 DIGILAW 496 (PAT)

Bechan Yadav v. State Of Bihar

2003-04-29

A.K.SINHA, B.K.JHA

body2003
Judgment A.K.Sinha and B.K.Jha JJ. 1. The sole appellant, namely, Bechan Yadav has been convicted under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The prosecution story as per the F.I.R. is that on 4.4.87 the deceased, namely, Mishri Yadav had gone to Darbhanga in connection of his pension work as he was a retired Military PersonneI and he returned back home at 6.00 p.m. He brought some medicine for his nephew, namely, Shambhu Yadav who was suffering from cold and cough which he administered to him. On the same day at 9.00 p.m. the deceased called his brother (appellant) and scolded him as to why he does not take interest in the treatment of his son on which the appellant gave out that he has got no means. The deceased asked his brother (appellant) to take his son to hospital and told that he will meet the expenses but the appellant was not willing to accept his proposal and an altercation took place between them on account of this issue. On hearing hulla the wife and son of the deceased along with witnesses, namely, Suresh Yadav (P.W. 1), Jhauli Yadav, Ram Sagun Yadav (P.W. 2) came there and tried to pacify the situation. In the mean time, the appellant being enraged entered into his house and came out with a knife and assaulted the deceased with knife on his chest and fled away. The informant and his well wishers brought his father to Rajnagar hospital where the doctor declared him dead. A case under section 302 of the Indian Penal Code was instituted against the appellant and the police submitted chargesheet under the said court and the case was committed to the Court of sessions for trial. 3. The case of the defence is of denial simplicitor. 4. In order to prove the charge the prosecution has examined five witnesses including the doctor who held postmortem examination on the dead body of the deceased. P.W. 1 Suresh Kumar Yadav and P.W. 2 Ram Sagun Yadav are the independent witnesses of the alleged occurrence whereas P.W. 3 and P.W. 4 Kaili Devi and Ganga Prasad Yadav respectively are the widow and son of the deceased. 5. P.W. 4 Ganga Prasad Yadav is the informant of this case and is an eye witness to the alleged occurrence. 5. P.W. 4 Ganga Prasad Yadav is the informant of this case and is an eye witness to the alleged occurrence. He has fully supported the prosecution case as detailed in the F.I.R. (Ext. 2) and categorically stated that on the alleged date of occurrence at about 6.00 p.m. his father had brought medicine for his cousin brother Shambhu Yadav which he served to him. Thereafter, he called the appellant and scolded him as to why he does not take interest in proper treatment of his son who expressed his inability that he has got no means for the treatment of his son, whereupon, his father said that he will meet the expenses of the treatment. But the appellant took a defiant attitude and said that he will not get his son treated even if he dies and asked the deceased not to worry about it and an altercation took place between the brothers on this issue and the deceased caught hold of appellant and asked him to make such statement before the villagers and dragged him up to the door. On hearing the hulla some of the villagers also came there. In the meantime, the appellant got himself released from the clutches of the deceased and entered into his house and came out with a knife and assaulted his father on left side of his chest and fled away. He further stated that his father tried to catch the appellant but after some distance he fell down on the ground and became senseless. So, he alongwith other villagers took his father to Rajnagar hospital but the doctor declared him dead. The informant brought the dead body of his father at the police station and lodged the F.I.R. (Ext. 2). He further stated that the I.O. prepared the inquest report on which Suresh Prasad put his signature (Ext. 1/1) and also seized blood stained chappal and blood stained earth and prepared the seizure list (Ext. 3). 6. P.Ws. 1, 2 and 3 have also made corroborative statements like P.W. 4. There is nothing in the cross-examination of P.Ws. 1 to 4 which may render their version unworthy of placing credence to and all of them appear to be reliable and trustworthy witnesses. P.Ws. 3). 6. P.Ws. 1, 2 and 3 have also made corroborative statements like P.W. 4. There is nothing in the cross-examination of P.Ws. 1 to 4 which may render their version unworthy of placing credence to and all of them appear to be reliable and trustworthy witnesses. P.Ws. 1 and 2 are independent witnesses and they also testified without being shaken in their cross-examination that the altercation had taken place between the deceased and the appellant on which the appellant went inside his house and came out with a knife with which he assaulted his brother on his chest. Therefore, the independent witnesses who had come at the P.O. on hearing altercation going on between the brothers also unequivocally supported the occurrence as alleged in the F.I.R. 7. P.W. 5 Dr. M. Bhatt had conducted the postmortem examination on the dead body of the deceased on 5.4.87 at 3.00 p.m. and had found an incised penetrating wound of size 2.1/2" x 1" x thorasic cavity deep. He found on opening of thorasic cavity-the wound traversed through the fourth intercostal space penetrating and cutting the plura (left), left lung through and through and left atrium including pericardium. He found the above injury on the left side of chest which was an ante mortem injury-caused by sharp cutting penetrating weapon. In the opinion of the doctor (P.W. 5) the death of the deceased was caused due to the aforesaid injury which was sufficient in ordinary course of nature to cause death. P.W. 5 has proved the postmortem report (Ext. 4). The medical evidence of P.W. 5 further supports the prosecution story as regards the manner of occurrence and the weapon used because the doctor also found a single injury on left side of the chest of the deceased which was caused by sharp cutting penetrating weapon like knife. It would thus appear that the prosecution witnesses have proved the alleged occurrence by their consistent statements which has been supported by the medical evidence. P.Ws. 1 to 4 appears to be natural and trustworthy witnesses who had really seen the occurrence and there does not appear any reason to disbelieve their evidence. 8. It would thus appear that the prosecution witnesses have proved the alleged occurrence by their consistent statements which has been supported by the medical evidence. P.Ws. 1 to 4 appears to be natural and trustworthy witnesses who had really seen the occurrence and there does not appear any reason to disbelieve their evidence. 8. The learned counsel appearing for the appellant urged that it was most unfortunate incident in which the deceased was trying to impress upon his own brother for the proper treatment of his son but as ill luck would have it he lost his life at the hands of his own brother. It was submitted that the appellant has got no criminal antecedent and is a poor labourer and he used to earn his livelihood by doing the work of a labourer and under sudden provocation the alleged occurrence took place in a feat of anger. As per the F.I.R. the appellant is alleged to have given a single blow of knife and fled away. So, there was actually no intention on the part of the appellant to commit the murder. As such, he is not liable for committing the offence under section 302 of the Indian Penal Code and his case will be covered under section 304 Part II of the Indian Penal Code. It was also submitted that the appellant had not assaulted the deceased with the knowledge that the death would be the inevitable result. In support of his contention the learned counsel relied upon the decision in the case of K. Ramakrishnan Unnithan V/s. State of Kerela reported in (1999) 3 S.C.C. 309 . It was also a case where the accused gave a serve blow of knife on the abdomen of the deceased as a result of which there was protrusion of the intestine of the deceased who died within 12 hours. The occurrence took place on account of sudden altercation. In the background of the aforesaid facts even on accepting the prosecution case, the Apex Court held that the accused did not commit the offence under section 302 of the Indian Penal Code but under Part II of section 304 of the Indian Penal Code. Accordingly, the conviction of the appellant under section 302 of the I.P.C. was set aside and he was convicted under section 304 Part II of the I.P.C. and the accused was sentenced to the period undergone. Accordingly, the conviction of the appellant under section 302 of the I.P.C. was set aside and he was convicted under section 304 Part II of the I.P.C. and the accused was sentenced to the period undergone. 9. In the case of Mavila Thamban Nambiar V/s. The State of Kerela reported in AIR 1997 S.C. 687 where the appellant had given a single blow to the deceased with a pair of scissors on his chest on account of which the death was caused, the Apex Court held that the offence of the appellant would more appropriately fall under section 304 Part II of the I.P.C. because the appellant had given one blow with a pair of scissors on the vital part of the body of the deceased so it would be reasonable to infer that he had knowledge that any injury with the pair of scissors on the vital part would cause death though he may not have intended to commit the murder. Accordingly, the conviction under section 302 I.P.C. of the appellant was altered to under section 304 Part II of I.P.C. In the instant case also the evidence on record goes to show that there was no enmity between the deceased and the appellant who happens to be own brother and altercation actually took place becaue the deceased had offered to meet the expenses on the treatment of the appellants son which was not acceptable to him, presumbly, because it might have touched his vanity. Of course, it was a most foolish and rustic act on the part of the appellant. For such triffling matter he assaulted his elder brother by giving a single blow of knife to satisfy his ego. The act committed by appellant would show that he had actually not intended to commit the murder of his brother otherwise he must bave repeated the knife blow. It can also be inferred that the appellant had actually no knowledge that his act would result in the death of his brother. 10. On careful consideration of all the facts and circumstances of the case, we are of the definite view that the appellant is not liable for committing the offence under section 302 of the Indian Penal Code and his case is squarely covered under section 304 Part II of the Indian Penal Code. 10. On careful consideration of all the facts and circumstances of the case, we are of the definite view that the appellant is not liable for committing the offence under section 302 of the Indian Penal Code and his case is squarely covered under section 304 Part II of the Indian Penal Code. We, accordingly, alter the conviction of the appellant from section 302 I.P.C. to one under section 304 Part II of the I.P.C. 11. The learned counsel for the appellant submitted that the appellant is an old man who has suffered enough by remaining in jail for a period of about eight and half years. As such, it would meet the ends of justice if his sentence is reduced to the period undergone by him. Having regard to the fact and circumstances of the case, the age and incarceration of the appellant we sentence the appellant to the period already undergone by him in custody. 12. In the result, therefore, this appeal is dismissed with modification in conviction and sentence as stated above. The appellant is accordingly, directed to be set at liberty forthwith, if not wanted in any other case. 13. We got valuable assistance rendered by Mr. K.K. Choubey as amicus curiae who appeared on behalf of the appellant in this appeal.