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2003 DIGILAW 766 (PAT)

Harendra Singh v. State Of Bihar

2003-07-25

B.K.JHA, M.L.VISA

body2003
Judgment M.L.Visa, J. 1. This appeal is directed against the judgment dated 8.12.1997 and order dated 9.12.1997 both passed by Shri Bihari Pandey, lst Additional Sessions Judge, Saran at Chapra, in Sessions Case No. 137/96 convicting and sentencing the appellant to undergo Rlfor life under section 302 of the Indian Penal Code (in short, IPC). 2. The case of prosecution, in short, is that on 27.9.95 in the evening deceased Champa Kuer was sitting at the Darwaja of her house when appellant armed with a knife came there and saying that deceased had applied witchcraft to his wife, therefore, he would kill her gave a knife blow on abdomen of the deceased and fled away. On hulla raised by the deceased members of her house came there and took her to Referal Hospital, Taraiya for her treatment where on the same day at about 8.40 PM her fardbeyan (Ext. 7) was recorded by ASI Bishwanath Prasad (PW-7). A case under sections 324/307 IPC was registered against the appellant by drawing a formal FIR (Ext 9). While the deceased was under treatment she succumbed to her injuries on 30.9.95 and section 302 IPC was added to the case. After investigation police submitted charge sheet under section 302 IPC against the appellant who was put on trial and was convicted and sentenced by the court below as indicated above. The case of appellant before the trial court was complete denial of the charge and his false implication. 3. In order to prove its case the prosecution has examined seven witnesses. Sheo Nath Gosai (PW-2), the brother of husband of deceased and Malti Devi (PW- 3), daughter-in-law of deceased, are the eye witnesses to the occurrence. Kanhaiya Gosai (PW-4) had reached the place of occurrence on hearing hulla and had seen the bleeding injury on the body of the deceased and deceased told him that appellant had assaulting her with a knife and he and others took the deceased to Taraiya Hospital for treatment and thereafter returned to his house and later on came to know that deceased died. Dr. Anand Prasad Dwivedi (PW-5) was posted as Medical Officer at Taraiya Hospital and Had examined the deceased on 27.9.95. Ram Ekbal Prasad (PW-6) is the doctor who held Post mortem examination on the body of the deceased. Dr. Anand Prasad Dwivedi (PW-5) was posted as Medical Officer at Taraiya Hospital and Had examined the deceased on 27.9.95. Ram Ekbal Prasad (PW-6) is the doctor who held Post mortem examination on the body of the deceased. Bishwanath Prasad (PW-7) is the l.O. Ram Ekbal Mahto (PW-1) had gone to the place of occurrence when Sheo Nath-Gosai (PW-2) had gone to his house to call him and he was informed by Sheo Nath Gosai that appellant had assaulted the deceased with knife. He has further said that he along with others took the deceased to Taraiya Hospital for treatment but at the same time he has said that he was not examined by police and he has been declared hostile by the prosecution. 4. Sheo Nath Gosai (PW-2) and Malti Devi (PW-3) are admittedly brother of husband of deceased and daughter-in-law of deceased respectively and they have claimed themselves to be the eye witnesses to the occurrence. Sheo Nath Gosai (PW-2) has stated that at the time of occurrence he was in his house and deceased was sitting in the Sahan and Malti Devi (PW-3) was also there when appellant armed with a knife came there and told the deceased that she had practised witchcraft on his wife therefore, he would assault her with knife and thereafter he gave a knife blow on the abdomen of deceased who received bleeding injuries and on hulla raised by him Kanhaiya Gosai (PW-4) and Ram Ekbal Mahto (PW-1) came there and appellant fled away. He has further stated that he and others toojk the deceased to Taraiya Hospital Where fardbeyan of deceased was recorded by police on which he also put his signature (Ext. 1) and Dr. Anand Prasad Dwivedi (PW-5) who was present at the time of recording of fardbeyan also put his signature (Ext. 1/A). He has further stated that sister of appellant had died of snake bite and appellant was having suspicion that deceased had practised some magic and because wife of appellant used to remain ill he was under the impression that deceased had practised witchcraft on his wife leading to her illness. He has further stated that during treatment deceased died on the night between 29.9.95 and 30.9.95 and inquest report was prepared in his presence on which he put his signature (Ext. 2) and dead body of the deceased was sent for post mortem examination. He has further stated that during treatment deceased died on the night between 29.9.95 and 30.9.95 and inquest report was prepared in his presence on which he put his signature (Ext. 2) and dead body of the deceased was sent for post mortem examination. Malti Devi (PW-3), daughter-in-law of deceased, has said that at the time of occurrence she was giving milk to her child and decease at that time was sitting at the Sahan and appellant armed with a knife came there and told the deceased that she had practised witchcraft as a result of which his sister died of snake bite and she had also practised witchcraft on his wife who always remained sick and when deceased denied the allegation appellant gave a knife blow on her abdomen and when deceased fell down and witnesses assembled the appellant fled away. She has further said that deceased was taken to Taraiya Hospital for treatment where she subsequently died. Dr. Anand Prasad Dwivedi (PW-5) in his evidence has said that on 27.9.95 he was posted as Medical Officer at Taraiya Hospital and on that day at about 8.30 PM he examined the deceased and found one extensive incised wound with part of gut and he referred the case to Sadar Hospital, Chapra for examination, treatment and report. According to him the injury was caused by sharp cutting weapon which may be a knife and he has proved the injury report prepared by him (Ext. 3). In cross examination he has said that he did not clinically examine the injured and after referring the case he did not receive any injury report from Chapra Hospital. Dr. Ram Ekbal Prasad (PW-6) has said that on 30.9.95 he was posted as Civil Assistant Surgeon at Sadar Hospital, Chapra and on that day at about 1.30 PM he held post mortem examination on the dead body of the deceased Champa Kuer and found one ante mortem injury which was one linear stitched wound on left anterior abdominal wall and one drainage tube in left iliac fossa held with one stitch. He has further said that in his opinion the death had been due to septicaemic shock because of injury which was caused by sharp cutting weapon which may be a knife and time elapsed since death was within 12 to 24 hours. He has proved the post mortem examination report (Ext. 8). He has further said that in his opinion the death had been due to septicaemic shock because of injury which was caused by sharp cutting weapon which may be a knife and time elapsed since death was within 12 to 24 hours. He has proved the post mortem examination report (Ext. 8). He has further said that he can not say whether the injury was sufficient to cause death of the deceased. His evidence further shows that after his examination and cross examination on 26.2.97 he was again recalled by the prosecution on 30.6.97 when he stated that the injury found on the body of the deceased was sufficient in ordinary course to cause death. 5. Bishwanath Prasad (PW-7), the I.O. of this case, in his evidence, has said that on 27.9.95 when he was posted as SI at Taraiya Police Station he at about 8.15 PM received information by rumour that a lady in a critical condition had been admitted to Referal Hospital and he then after making Station Diary Entry (Ext. 6) alongwith Shri B. K, Roy, the then Incharge of Taraiya Police Station went to Referal Hospital where he recorded the fardbeyan (Ext. 7) of deceased which was signed by Medical Officer Anand Prasad Dwivedi (PW-6) and Sheo Nath Gosai (PW-2) (Exts. 1/A and 1). He has further said that he prepared injury certificate (Ext. 8) and then came to Police Station where a formal FIR (Ext. 9) was recorded. He has also stated that he visited the place of occurrence and deceased was referred to Chapra Hospital where she died on 30.9.95 and inquest report (Ext. 11) was prepared and he filed an application on 2.10.95 before Chief Judicial Magistrate, Chapra for adding section 302 IPC in this case and after investigation he submitted chargesheet. 6. On behalf of the appellant the petition of I.O. dated 2.10.95 filed by him before the court of CJM, Chapra, for adding section 302 IPC in this case has been brought on record which has been proved by the I.O, in his cross examination and which is marked Ext. A. The case of defence is that in this petition date of death of deceased by the I.O. has been mentioned as 1.10.95 which is against the case of prosecution according to which deceased died on 30.9.95. A. The case of defence is that in this petition date of death of deceased by the I.O. has been mentioned as 1.10.95 which is against the case of prosecution according to which deceased died on 30.9.95. The court below has considered this aspect and has rightly observed that merely by mistake in mentioning the date of death of deceased in the petition filed by the I.O. the case of prosecution is not affected adversely. By examining Suresh Kumar (DW-1) defence has brought on record the fardbeyan of Sheo Nath Gosai (PW-2) which was recorded on 30.9.95 by ASI Shri Ram Singh and this fardbeyan is marked Ext. B. The court below has observed that by bringing this fardbeyan the defence has tried to show that Sheo Nath Gosai (PW-2) has not given the date of occurrence in his fardbeyan. This fardbeyan shows that it was recorded after the death of deceased on 30.9.95 at Chapra and I find that in this fardbeyan also Sheo Nath Gosai has clearly stated that appellant assaulted the deceased with knife on last Wednesday and he further stated that his fardbeyan was recorded on Saturday which was 30.9.95. So this statement clearly shows that date of occurrence was 27.9.95.1 therefore find no contradiction in this fardbeyan and besides this, this fardbeyan of Sheo Nath Gosai can not be treated the fardbeyan of the present case because on 30.9.95 when this fardbeyan of Sheo Nath Gosai was recorded at Chapra much before that fardbeyan of deceased had already been recorded on 27.9.95 and case had already been registered and investigation had already been taken up. 7. In this case the appellant has been convicted and sentenced under section 302 IPC. The court below has observed that appellant came to place of occurrence armed with a knife and by saying that he would kill the deceased assaulted the deceased with knife on her abdomen which is a vital part and all circumstances clearly suggest that appellant had intention to commit murder of deceased. The case of prosecution right from beginning is that appellant came and alleged that deceased was a witch and had practised witchcraft as a result of which his sister died of snake bite and she further practised witchcraft on his wife who was suffering from illness. The case of prosecution right from beginning is that appellant came and alleged that deceased was a witch and had practised witchcraft as a result of which his sister died of snake bite and she further practised witchcraft on his wife who was suffering from illness. Malti Devi (PW-3), daughter-in-law of deceased, who is an eye witness to the occurrence has admitted that villagers used to call the deceased a witch but has said that she was in fact not a witch and she has further admitted that sister of appellant had died of snake bite and wife of appellant used to remain ill and about the time of death of sister of appellant she has said that she died a week before the date of occurrence. In para-6 of her evidence she has said that appellant gave only one knife blow to the deceased and fled away and in para-5 she has said that for half an hour an altercation took place between the deceased and appellant and during that altercation appellant assaulted the deceased. This evidence is against the finding of the court below that appellant had come to the place of occurrence for committing murder of deceased as he was armed with a knife and saying that he would kill the deceased assaulted her. Had the appellant any such intention he after coming to the place of occurrence would have immediately attacked the deceased but in this case he told her a witch on which an altercation between deceased and appellant for half an hour took place and during that altercation appellant assaulted the deceased. As stated above, sister of appellant had already died of snake bite and his wife was remaining ill and it is own evidence of Malti Devi (PW-3) that villagers used to call the deceased a witch and all these circumstances made the appellant to believe that deceased was a witch and under that impression he during an altercation assaulted the deceased giving a knife blow. The appellant in his statement recorded under section 313 Cr. P.C. has said that he is a vegetable seller. The appellant was naturally disturbed because of the death of his sister and illness of his wife and he although not correct was under the impression that cause of death of his sister and illness of his wife was witchcraft practised by deceased. P.C. has said that he is a vegetable seller. The appellant was naturally disturbed because of the death of his sister and illness of his wife and he although not correct was under the impression that cause of death of his sister and illness of his wife was witchcraft practised by deceased. The circumstances suggest that in the aforesaid situation during altercation the appellant gave knife blow on the abdomen of deceased which appears to have been given on a spur of moment. Besides this, evidence of PW-6 who held post mortem examination on the dead body of deceased is that he can not say whether injury inflicted by appellant was sufficient to cause death although on recall after a long period he has tried to make amendment in his statement by saying that injury found on the person of the deceased was sufficient in ordinary course to cause death. These two contradictory statements do not conclusively prove that injury caused by appellant to deceased was in ordinary course sufficient to cause her death but then deceased died during the treatment of an injury which was inflicted by appellant to her, the appellant can not escape from the liability of inflicting that injury. I therefore find that the case of appellant falls under Part-I of Section 304 IPC. The appellant is in jail custody since 10.10.95. In my opinion, the period already undergone by the appellant in custody will be sufficient for awarding punishment him. 8. In the result, conviction and sentence of the appellant is altered from section 302 to Part-I of section 304 IPC and the period of sentence is reduced to the period already undergone by the appellant in jail custody. With this observation, the appeal stands dismissed. 9. The appellant is ordered to be released from jail custody forthwith if not required in any other case. Bal Krishna Jha, J. 10 I agree.