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2004 DIGILAW 1061 (PAT)

Sadanand Yadav, Chhedi Yadav v. State of Bihar

2004-09-30

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JUDGMENT SHIVA KIRTI SINGH & MRIDULA MISHRA, JJ.:-Both the appellants have been convicted under sections 302/34 of the IPC and sentenced to RI for life. Appellant no. 1, Sadanand Yadav, has been further convicted under section 323 IPC and sentenced to six months R.I. Both the sentences have been ordered to run concurrently. 2. According to the prosecution case as per fardbeyan of informant, Jai Krishna Yadav (PW 3), on 4.2.1990 at about 3.30 p.m. Satto Das (PW 1) came and informed the informant and his father, Ravi Yadav (deceased) that while Satto was irrigating wheat crops in a field then Appellant no. 1, Sadanand Yadav, his brother Appellant no.2, Chhedi Yadav and Deo Nandan Yadav (who died during trial) interfered with the irrigation and diverted water of the canal into their own field and when Satto protested he was assaulted with fists and slaps. On this information, the informant along with his father Ravi Yadav went to Kauwakhol Bandh where the wheat field was situated and Ravi Yadav protested against the acts of the accused persons and on such protest, Chhedi Yadav (Appellant no. 2) ordered for assault and Appellant no. 1, Sad an and Yadav gave two blows with back portion of a spade on the head of Ravi Yadav. After Ravi Yadav fell down allegedly Deo Nandan Yadav and Appellant No.2, Chhedi Yadav assaulted with lathi and phatta (bow). Allegedly on hulla people from the neighbourhood arrived which included Khushi Lal Yadav (PW 5), Raj Kishore Yadav (PW 4) and Jagdish Yadav (PW 2). The Injured was carried to Kumarkhand Hospital in unconscious state and the fardbeyan was recorded at 23.00 hours on 4.2.1990 while the injured was under treatment. It is further case of the prosecution that the injured was first referred to Madhepura Hospital and from there to Saharsa Hospital where he died at about 3.00 a.m. on 6.2.1990. 3. PW 1, Satya Narayan Das @ Satto Das, PW 2, Jagdish Yadav, PW 4, Raj Kishore Yadav and PW 5, Khushi Lal Yadav are named in the FIR as persons who came on hulla and witnessed the assault on the deceased. They have supported the claim of the informant PW 3, Jai Krishna Yadav. 3. PW 1, Satya Narayan Das @ Satto Das, PW 2, Jagdish Yadav, PW 4, Raj Kishore Yadav and PW 5, Khushi Lal Yadav are named in the FIR as persons who came on hulla and witnessed the assault on the deceased. They have supported the claim of the informant PW 3, Jai Krishna Yadav. PWs 1 and 2 have claimed to be eye witnesses of both parts of the occurrence consisting of initial assault on Satya Narayan Das @ Satto Das and also of subsequent occurrence in which Ravi Yadav was assaulted when he came to the place of occurrence along with his son, the informant and PW 1, Satya Narayan Das. PW 4, PW 5 and PW 6, Rajendra Prasad Yadav have claimed to be witnesses of second part of occurrence. PW 7, Dr Rajeshwar Prasad Yadav, held the postmortem examination on the body of the deceased on 8.2.1990 at 4.00 p.m.. He found altogether 5 external injuries of which injuries no. 1 and 2-blood clots in both the nostrils and haemorrhage in right eye appear to be effects of the other three injuries which are on the right temple, on the top and on the back of the head. On dissection, the Doctor found 3 internal injuries on the head corresponding to aforesaid 3 external injuries and according to his opinion, death was caused by those 3 external and internal injuries on the head of the deceased and those injuries were sufficient to cause death in ordinary course of business. 4. PW 8, Naveen Prasad Yadav, PW 9, Satyendra Yadav and PW 10, Shiv Narayan Yadav are formal witnesses who have proved Ext. 2, the fardbeyan, Ext. 1/1, the postmortem report and Ext. 3, the formal FIR. A carbon copy of the postmortem report is proved as Ext. 1 by the Doctor, PW 7 but the defence has raised objections and probably, therefore, the postmortem report was got exhibited as Ext. 1/1. 5. On behalf of the defence, 2 witnesses have been examined but both are formal in nature who have proved the fardbeyan and FIR of counter case i.e. Kumarkhand PS Case no. 13/90 leading to GR No. 111/90. Some other documents such as forwarding report of accused Sadanand Yadav, order-sheet of GR case no. 1/1. 5. On behalf of the defence, 2 witnesses have been examined but both are formal in nature who have proved the fardbeyan and FIR of counter case i.e. Kumarkhand PS Case no. 13/90 leading to GR No. 111/90. Some other documents such as forwarding report of accused Sadanand Yadav, order-sheet of GR case no. 110/90 relating to the present Kumarkhand PS Case No. 13/90 as well as some other letters and reports have been proved by the defence to show that accused Sadanand Yadav had filed a counter case and when he was forwarded in this case for remand then the court recorded that accused Sadanand Yadav and accused Deo Nandan Yadav had some injuries. On their petition the CJM directed the Jail Doctor to take care of those two injureds and give them medical facilities in the Jail. 6. On behalf of the appellants it was first submitted that there is contradiction in the deposition of witnesses and hence, the prosecution case is fit to be disbelieved. On going through the evidence of witnesses as well as other materials including documents exhibited on behalf of the defence this Court finds that there is no scope to doubt that an occurrence took place at the alleged time as well as the alleged place in which Ravi Yadav received serious injuries as a result whereof he died. The time and place of occurrence stand admitted even by defence exhibits. It was next contended on behalf of the appellants that on a careful reading of prosecution evidence as well as documents exhibited by the defence, it will be clear that the manner of occurrence was not exactly the same as alleged by the prosecution and in any case there are materials to show that there was no enmity between the parties from before, no traditional weapons were used for causing assault upon the deceased, no assault took place either upon the companions of the deceased including the informant, his son or upon some of the witnesses who have shown to be agnates of the deceased. Thus, it has been submitted that the circumstances would show that there was sudden quarrel between the parties over irrigation of their fields and the assault was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the accused persons did not take undue advantage nor they committed cruel or unusual act. 7. On examining the deposition of witnesses regarding the manner of the occurrence it is noticed that the informant PW 3, Jai Krishna Yadav has stated in paragraph 8 of his deposition that when he and his father went to the field in question several other persons of the village also went there; On reaching that place no marpit commenced immediately on arrival; For about half an hour people were there at the field and during that half an hour the assault started. He has further admitted that there was no enmity between the parties and except Ravi Yadav (the deceased) no other persons from the side of the informant or any other villager was assaulted. It has come in the evidence of almost all the witnesses that when PW 1, Satya Narayan Das @ Satto Das called the informant and his father from their house, they arrived at the field where the accused persons were irrigating their land and on arrival Ravi Yadav (the deceased) started asking the accused persons to explain their conduct as to why they had prevented PW 1 from irrigating his field and why they had diverted the water to their own field. Thus, it is apparent that it was in course of asking of explanations by the deceased and not immediately on his arrival, Sadanand Yadav (Appellant no. 1) used blunt part of spade to cause two injuries on the head of the deceased. So far as allegation of assault by Chhedi Yadav is concerned, no witness has specified as to on which part of the body he gave blows with Phatta (bow) which is usually used with arrows. There is no definite evidence on record as to how the 3rd injury on the head of the deceased was caused, whether it was caused by Chhedi Yadav (Appellant no. 2) or by Deo Nandan Yadav, the accused who died during trial. On looking at dimension and extent of damage caused by injury no. There is no definite evidence on record as to how the 3rd injury on the head of the deceased was caused, whether it was caused by Chhedi Yadav (Appellant no. 2) or by Deo Nandan Yadav, the accused who died during trial. On looking at dimension and extent of damage caused by injury no. 3 on the head which is at the back portion of the head it does not appear to have been caused by light weapon like Phatta (bow). The injuries on the head appear to be caused either by blunt portion of the spade or by lath; which was allegedly used by deceased accused Deo Nandan Yadav. 8. Thus, on appraisal of evidence on record it is found that occurrence took place without premeditation in a sudden fight when the deceased started asking explanations from the accused persons. It was in the heat of passion and in a sudden quarrel that Appellant no. 1, Sadanand Yadav gave two blows on the head of the deceased with blunt portion of spade. On bare perusal of the injuries caused on the head of the deceased, it is apparent that the injuries were sufficient to cause death as opined by the Doctor. The issue is whether in such circumstances benefit of Exception 4 to section 300 of the IPC can be granted in this case to Appellant no. 1, Sadanand Yadav. Considering the materials and evidence on record and although no injury report of accused persons could be brought on record but considering the counter case which was lodged only for simple injuries, we are of the view that there was no premeditation leading to the occurrence of assault in this case and although Appellant no. 1, Sadanand Yadav has caused culpable homicide, on account of case falling under Exception 4 to section 300 of the IPC, such culpable homicide did not amount to offence of murder. Hence, conviction and sentence awarded to appellant no. 1, Sadanand Yadav, under section 302/34 of the IPC is set aside. He is found guilty of offence under Section 304 Part II IPC because his action of assault must be presumed to have been done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. He is found guilty of offence under Section 304 Part II IPC because his action of assault must be presumed to have been done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. There is sufficient evidence on record to confirm conviction and sentence awarded to Appellant no. 1 under section 323 of IPC for assault upon PW 1, Satya Narayan Das @ Satto Das. 9. So far as Appellant no. 2, Chhedi Yadav is concerned, considering the allegation against him and the finding given by us in respect of Appellant no. 1, Sadanand Yadav, we are of the view that in the assault upon the deceased in a sudden fight without premeditation he can be held guilty only for his individual act of assault. As per prosecution case, he assaulted the deceased with a Phatta (bow) and although no corresponding injury is mentioned in the postmortem report, for causing simple injury to the deceased, he can be safely convicted for offence under section 323 of the IPC. Hence, he is acquitted of charge under section 302/34 of the IPC and convicted for offence under section 323 IPC. He has already remained in custody during trial for a period of about one year hence he is sentenced only for the period of imprisonment already undergone by him. 10. The conviction and sentence awarded to Appellant no. 1, Sadanand Yadav for offence under section 323 IPC is confirmed. So far sentence for offence under section 304 Part II is concerned, in the facts and circumstances of the case, we are of the view that a sentence of 7 years rigorous imprisonment will serve the ends of justice. Hence for offence under section 304 Part II, he is sentenced to RI for 7 years and to a fine of Rs.5000/-, in default whereof he shall undergo further simple imprisonment for six months. If the fine is realised it should be paid to the informant, the son of the deceased. Sentences for both the offences shall run concurrently. 11. The appeal is allowed to the extent indicated above.