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2003 DIGILAW 915 (JHR)

Bansi Ram v. State of Bihar/now Jharkhand

2003-07-29

D.N.PRASAD, H.S.PRASAD

body2003
JUDGMENT : Deoki Nandan Prasad & Hari Shankar Prasad, JJ.- This appeal is directed against the judgment of conviction dated 26.9.1996 and order of sentence dated 27.9.1996 passed by Sri Pratap Singh, 1st Additional Sessions Judge, East Singh bhum at Jamshedpur in Sessions Trial No. 725/41 of 1994-95, whereby and whereunder, the learned 1st Additional Sessions Judge convicted the appellant under sections 302 and 307 of the Indian Penal Code and he was sentenced to undergo rigorous imprisonment for life under section 302 of the Indian Penal Code whereas he was further sentenced to undergo rigorous imprisonment for five years under section 307 of the Indian Penal Code. However, the sentences were ordered to run concurrently. 2. The prosecution case in brief as stated is that one Ishwar Lal Ram gave fard beyan before Golmuri police station alleging therein that he has been living with his family at Jamshedpur for the last 15 to 20 years holding his shop of Plastic Chappals at Golmuri Bazar. Nearly 30ft from where he holds the said shop, Raghunandan Das, Jit Lal and accused Bansi Ram are sitting in the Canara Bank's Verandah and doing their shoe-shining business. On the preceding Friday, accused Bansi Ram had told accused• Ishwar Lal Ram that Kartik Ram (deceased) had been saying that Ishwar Lal Ram had no prestige at Chaibasa on which Ishwar Lal Ram had told Bansi Ram that when Kartik Ram came, he would enquire about this fact from him as to whether or not he had made such statement. On 2.7.1994 when Ishwar Lal Ram met Kartik Ram's brother Dasrath Ram, he told Dasrath Ram that his brother Kartik Ram had given out to Bansi Ram that Ishwar Lal Ram had no prestige at Chaibasa and, whether he had really made such statement, could be known only when Kartik Ram would come. On 2.7.1994 when Ishwar Lal Ram met Kartik Ram's brother Dasrath Ram, he told Dasrath Ram that his brother Kartik Ram had given out to Bansi Ram that Ishwar Lal Ram had no prestige at Chaibasa and, whether he had really made such statement, could be known only when Kartik Ram would come. On 3.7.1994 at about 8.30 A.M., Dasrath Ram came to the shop of accused Ishwar Lal Ram and informed him that he had told about it to his brother Kartik Ram and that he would come to the shop of Ishwar Lal Ram at 10.00 A.M. According to the fard beyan of Ishwar Lal Ram, he closed his shop at 12.00 noon and went home and had returned as usual to the shop at 4.30 P.M. On his arrival on 3.7.1994 at 4.30 P.M. at his shop, Ishwar Lal Ram saw Kartik Ram sitting in the Canara Bank's Verandah. On seeing him•, Kartik Ram told him that he had sent accused Krishna Ram and Dasrath Ram to his house for bringing him and when he was going home, he met the said Krishna Ram and Dasrath Ram on the way near the petrol pump and from there he returned to the shop. Ishwar Lal Ram thereupon enquired from Kartik Ram as to whether he had told Bansi Ram that he (Ishwar Lal Ram) had ho prestige at Chaibasa to which Kartik Ram denied. Thereafter appellant Bansi Ram came and challenged Kartik Ram, as a result of which, there was an exchange of hot words between them. Thereafter accused/appellant Bansi Ram gave knife blow on the chest of Kartik Ram and when Kartik Ram raised hulla "Bachao Bachao". Thereafter Kartik Ram fell down and he was taken to the Hospital where he died in the Emergency Ward. 3. On the basis of the fard beyan, the police registered a case under sections 302 and 307 of the Indian Penal Code. The police investigated into the case and submitted charge sheet even against the informant and one more accused. The witnesses were examined in the court of trial after framing of charge and after hearing both sides; the Trial Court convicted and sentenced the appellant in the manner as stated above. Hence this appeal. 4. The police investigated into the case and submitted charge sheet even against the informant and one more accused. The witnesses were examined in the court of trial after framing of charge and after hearing both sides; the Trial Court convicted and sentenced the appellant in the manner as stated above. Hence this appeal. 4. At the very outset, it may be mentioned that two accused persons, namely, Krishna Ram and Ishwar Ram alias Ishwar Lal Ram have already been acquitted by the learned Trial court as the prosecution has failed to establish the charges against them beyond all reasonable doubts and they were set at liberty. The order of conviction was passed only against this appellant against whom there was an allegation of giving knife blow to the deceased. The Doctor (P.W. 6) claimed to have held post mortem on the dead body of the deceased Kartik Ram and found the following ante mortem injury:- "Penetrating wound 4.5 cm. x 1.5 cm. in spindle shaped over the lower and middle part of chest slight lateral to left border of sternum 14 cm. below the apex of sternum. The margins of the wound was clear-cut and regular. The wound was chest cavity deep". 5. P.W. 1 (Kabutri Devi) is the wife of the deceased, who claimed to have visited the hospital and saw the injury on the person of her husband. She also admitted to have seen the accused Kishna Ram and Ishwar Lal alias Ishwar Lal Ram in the hospital who were present there from before. She also enquired from them as to why they had assaulted her husband with Chaku on which they flatly denied and stated that it was the appellant Bansi Ram who gave knife blow. Admittedly she is not an eyewitness of the occurrence. 6. P.W. 2 claimed to be an eyewitness of the occurrence and, according to him, the appellant gave knife blow on the chest of Kartik Ram and thereafter he fell down and he was taken to the hospital but he died there. He admitted in his evidence that there was a discussion between them and, at the spur of moment, the occurrence took place. According to him, he had not seen the said knife but when a talk was going on, other persons were also present there. He admitted in his evidence that there was a discussion between them and, at the spur of moment, the occurrence took place. According to him, he had not seen the said knife but when a talk was going on, other persons were also present there. The knife said to have been used in the assault was taken from the fruit Shop. He also admitted that a single blow was inflicted on the person of Kartik Ram and thereafter he fell down. He also claimed that he was assaulted later on with the knife and sustained injury. 7. P.W. 3 also claimed to be an eyewitness of the occurrence. According to him, a single blow was given by the appellant. He along with Krishna Ram and Ishwar Ram had taken Kartik Ram to the hospital. P.W. 4 is the Doctor, who claimed to have examined Dasrath Ram (P.W. 2) who also sustained single injury being incised wound, which was grievous in nature. P.Ws. 5, 7 and 8 have not supported the prosecution case and they have been declared hostile. P.W.9 is an hearsay witness and he came to know about the death of Kartik Ram whereupon he reached to the hospital and found the dead body of Kartik Ram there. He is a witness of the inquest report. P.W. 10 is the Investigating Officer who claimed to have recorded the fard beyan and lodged a first information report (Ext. 7) and also recorded the evidence of the witnesses who claimed to have visited the place of occurrence and submitted charge sheet accordingly. P.W. 11 also visited the place of occurrence and he also conducted the investigation partly. 8. No any other witness has been examined on behalf of the prosecution and accused persons including the appellant have been examined under section 313 of the Indian Penal Code and they have denied the allegation. There is only allegation against this appellant for inflicting a single knife blow on the person of the deceased and the occurrence took place without premeditation and also at the spur of moment, which fact has also been corroborated by the other witnesses. 9. Mr. There is only allegation against this appellant for inflicting a single knife blow on the person of the deceased and the occurrence took place without premeditation and also at the spur of moment, which fact has also been corroborated by the other witnesses. 9. Mr. Mukesh Kumar Sinha, learned counsel appearing on behalf of the appellant submitted that the learned court below committed error in convicting the appellant under section 302 of the Indian Penal Code when other accused persons including the informant were acquitted as the prosecution has failed to establish the charge beyond all reasonable doubts. It is further argued that at best the allegation as made in the first information report would come to Exception 4 of Section 300 of the Indian Penal Code as the occurrence took place without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. It is also submitted that there was no intention on the part of the accused/appellant to kill the deceased. Had there been such intention, the appellant would have given repeated knife blow rather a single knife blow was given though the appellant had knowledge for causing death but actually there was no intention on his part to kill him and so the offence under section 302 of the Indian Penal Code does not attract in the instant case. Counsel appearing on behalf of the• appellant also relied upon a case of Tholan Vs. State of Tamil Nadu [(1984)2 Supreme Court Cases 133] and submitted that this case is squarely covered by the instant case. 10. It is apparent that other two ,accused persons have already been acquitted by the Trial court as the prosecution has failed to establish the charge against those two accused, namely, Krishna Ram and Ishwar Lal alias Ishwar Lal Ram. It is true that there is an allegation against this appellant for inflicting knife blow but admittedly a single blow was given and there is no premeditation or pre-planning for committing murder of the deceased rather the occurrence took place in a sudden fight in the heat of passion upon a sudden quarrel and from the evidence collected it is apparent that there was no intention on the part of the appellant for killing the deceased. 11. 11. Thus we are of the definite view that this case comes under the ambit of Exception 4 of Section 300 of the Indian Penal Code being culpable homicide not amounting to murder and, as such, the appellant is liable to be convicted under section 304 Part II of the Indian Penal Code instead of Section 302 of the Indian Penal Code. Sentences are already ordered to run concurrently. 12. In the result, we acquit the appellant for the offence charged under section 302 of the Indian Penal Code and set aside his conviction and sentence thereunder. But the appellant is convicted for the offence under section 304 Part II of the Indian Penal Code. The appellant has already been in custody since 4.7.1994 and we are of the view that the period already undergone by him in the jail custody will meet the ends of justice. Accordingly, he is sentenced to undergo rigorous imprisonment to the period already undergone by him in the jail custody. Hence, the appellant is directed to be released forthwith, if not wanted in any other case. 13. With the aforesaid modification in the conviction and sentence, the appeal is dismissed.