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2004 DIGILAW 320 (JHR)

Ajay Verma v. State of Bihar

2004-03-24

HARI SHANKAR PRASAD

body2004
Judgment Hari Shankar Prasad, J.-This appeal is directed against the judgment of conviction and order of sentence dated 3.4.1998 passed in Sessions Trial No.539 of 1994, whereby and whereunder the learned Additional Judicial Commissioner, Ranchi held the appellant guilty under Sections 304 Part 11/34 IPC and convicted and sentenced him to undergo RI for two years. 2. The prosecution case in brief is that Bhola Prasad Singh gave a fard beyan before SI I.D. Pathak of Kotwali P.S. at Nagarmal Modi Seva Sadan Hospital on 13.12.93 at 8.45 PM that on the same day at about 6-7 PM one boy named Prakash Verma came to him and informed that he had gone to eat meat and Roti alongwith his brother Gokul Verma and one Roshan Yadav to Albert Ekka Chowk and when they were eating meat and Roti then his friend Pappu Chaurasia came there and he ate Litti and all the four persons together proceeded for their homes and when they reached Khadi Gramudyog, west of Shastri market then they met Ajay Verma and Manoj Kumar of Pyada Toli. Ajay is lame and he moves laming and he was going smocking cigarette. Gokul called Ajay as lame man then Manoj came to Gokul and told him why he told him lame then Gokul replied that he has not told him lame, then Ajay came there and used abusive language. Gokul said to him why he was abusing. At that time Gokul was south of the divider of the road and Manoj and Ajay were standing on north of the divider of the road but all of a sudden Manoj took out a long Chhura and gave Chhura blow on the left chest of Gokul and both of them fled toward Basundhara Cinema. Gokul fell down after receiving injury and all the other three persons took him to Charidsi Dawakhana on a rickshaw and there the doctor advised them to shift him to Seva Sadan and Prakash thereafter came to his house and informed him. He came to Seva Sadan and found Gokul dead. On this piece of fardbeyan, Kotwali P.S.Case No.566/93 dated 13.12.93 under Section 302/34 IPC was registered and I.O. after investigation submitted chargesheet. He came to Seva Sadan and found Gokul dead. On this piece of fardbeyan, Kotwali P.S.Case No.566/93 dated 13.12.93 under Section 302/34 IPC was registered and I.O. after investigation submitted chargesheet. Cognizance in the case was taken and case was committed to the court Of sessions, where 8th Additional Judicial Commissioner, Ranchi recorded the evidence of witnesses both oral and documentary and came to a finding and held the appellant guilty under Section 304 Part II IPC and convicted and sentenced him as aforesaid. 3. Prosecution has examined seven witnesses. PW 1 is Prakash Verma. He is an eye witness. PW.2 is Pappu Kumar Chaurasia. He is also an eye witness. PW 3 is Roshan Yadav. He is also an eye witness. PW 4 is Bhola Singh. He is the informant but he is a hearsay witness. PW 5 is the doctor, who conducted the post mortem examination on the dead body of Gokul. PW 6 is Shiv Prasad Singh, he is a retired government servant, he is a formal witness. PW 7 is also a formal witness. 4. PW 5, the doctor, who conducted the post mortem on the dead body of Gokul on 14.12.93 at about 10.30 hours and found the following injuries: "2 cm x 1/2 cm x cavity deep on right chest end. Posterior end was oral contused. It was situated 5 1/2 cms above right to mid line. It was 3 1/2 cms below the right nipple. The weapon has penetrated into the chest cavity through the right fifth inter costal space penetrating the diaphragm and entered into liver 4 cms deep. There was presence of blood and blood clot in the abdominal cavity." According to doctor, the injuries were ante mortem and caused by sharp cutting weapons like dagger and death was due to haemorrhage and shock. Time elapsed since death was within 6 to 24 hours from the post mortem examination. 5. PW 1 is Prakash Verma. He is an eye witness. According to this witness, he alongwith Roshan Yadav (PW 3) and Gokul (deceased) had gone to eat Chomin and when they were eating Chomin, Pappu Chaurasia came there after doing tuition work. Then he enquired from him whether he will also like to eat chomin, but Pappu Chaurasia took RS.2 from him and ate Litti. He is an eye witness. According to this witness, he alongwith Roshan Yadav (PW 3) and Gokul (deceased) had gone to eat Chomin and when they were eating Chomin, Pappu Chaurasia came there after doing tuition work. Then he enquired from him whether he will also like to eat chomin, but Pappu Chaurasia took RS.2 from him and ate Litti. When all the four persons were returning and they reached near Khadi Gramudyog then they saw Manoj and Ajay Verma and they came there. Gokul (deceased) in taunting language asked him "Langra you are smoking cigarette from now", whereupon Manoj, who was with Ajay, came there and told to Gokul why you told him langra then Gokul replied that he has not told him langra. Appellant Ajay abused him and told why you told him langra. At that time all were on the divider of the road. In the meantime a Maruti car was coming and he saw that Ajay and Manoj gave a knife blow on Gokul and Gokul fell down on the road side. Thereafter Gokul was shifted to Chandsi Dawakhana from there he was shifted to Modi Seva Sadan and he went to the house of Gokul to inform his relatives. He informed PW 4, Shola Singh. This witness says that he alongwith his three friends were altogether and in the meantime a vehicle came then he remained behind the vehicle and Gokul and Roshan were ahead of the vehicle. He stated that Ajay is a lame and he got annoyed on calling him Langra. According to this witness, when appellant Ajay abused him then deceased Gokul simply protested not to give abuse. He stated that, since a vehicle came in his front, he could not see giving of knife blow to Gokul. 6. PW 2 is Pappu Chaurasia. At 6.30 PM he went to eat Litti in front of Sadar Hospital, where he met Gokul Verma, Prakash Verma and Roshan Yadav. They were eating meat and Roti and he was also invited by them to eat meat and Roti but he took Rs. 4 from Roshan and ate Litti. 7. PW 3 is Roshan Yadav. He is• also an eye witness. They were eating meat and Roti and he was also invited by them to eat meat and Roti but he took Rs. 4 from Roshan and ate Litti. 7. PW 3 is Roshan Yadav. He is• also an eye witness. While supporting the prosecution case, this witness has stated that when Gokul called Ajay as lame then he protested as to why he called him lame and there was a scuffle and with Ajay 3 or 4 of his friends were there and one friend took out a Chhura and gave a chhura blow to Gokul Verma then Gokul fell down on the road. He later came to know about the name of assailant as Manoj and he identified him in the dock also. 8. PW 4 is a hearsay witness and he came to know from Prakash Verma (PW 1), who went to his house and informed him about the occurrence. This witness has also narrated the occurrence in the manner as stated by PWs 1, 2 and 3. He also stated that he came to know from Prakash Verma about the occurrence and Prakash has also stated the same in his evidence as PW 1. On the basis of his fard beyan the case was registered. Fard beyan has been marked as Ext. 1. 9. The learned counsel appearing for the appellant, submitted that all the three eye witnesses are actually friends of deceased Gokul and they have interest in the case and they have deposed as interested witnesses. It was also pointed out that I.O. of the case has not been examined nor inquest report has been brought on record. It was also pointed out that PWs 1 and 2 would not see the blow being given on Gokul (deceased) as a Maruti vehicle had come in front of them and when Maruti vehicle passed, PWs 1 and 2 saw that Gokul had fallen down by the side of the road and Manoj, who has been convicted but is not the appellant in this case, and this appellant were seen running away from the place. It was also pointed out that PW 1, though in the first instance has stated that this appellant and Manoj assaulted Gokul (deceased), but in cross examination he had admitted that due to coming a Maruti vehicle in front of him he could not see as to who has inflicted chhura blow on Gokul. Similar is the evidence of PW 2 and PW 3 has categorically stated that there was a scuffle in between this appellant and Gokul as Gokul had called him a lame and, therefore, it was natural that he should have reacted to such a statement made on behalf of Gokul against this appellant and, therefore, this is a natural conduct and for that he cannot be held liable. It was further pointed out that the real assailant is Manoj as PW 3 has seen the occurrence with his naked eye as he was ahead of the Maruti vehicle and not behind the Maruti vehicle and he had seen the occurrence taking place and also saw that Manoj inflicted a chhura blow on Gokul, as a result of which he fell down and, therefore, there is no complicity of this appellant in the occurrence and further that no case under Section 304 Part-II IPC is made out against him. 10. After hearing the submissions and on perusal of materials on record and impugned judgment, it appears that this appellant and Manoj were charged under Section 302/34 IPC and after trial Manoj and this appellant were convicted under Section 304 Part-II IPC and since he was in custody for last four years, the learned Additional Judicial Commissioner, Ranchi held him guilty under Section 304 Part II IPC and sentenced him for the period already undergone by him in jail and that was the only sentence passed against him and this appellant was sentenced to undergo RI for two years. From the evidence on record, a clear cut case of 302 IPC is made out because according to PW 3, who is an eye witness, Manoj took out a big dagger, inflicted the dagger blow on the left side of chest and the doctor, has come to the finding that blow was sufficient to cause death in the ordinary course meaning thereby that blow was so fatal that death was definite in ordinary course. It is not a case that one man gave a slap and as a result of that slap deceased died and, therefore, in that circumstances he could have been convicted under Section 304 Part-II IPC but here is a case where a long dagger blow was given on the vital part as well as weak part of the body and chest of the deceased and weapon has penetrated into the chest cavity through the right fifth inter costal space penetrating the diaphram and entered into liver 4 cms deep. The blow was given on this very part because this part consists of cartilagious bones and through this portion liver is affected. But so far as this appellant is concerned, Roshan Yadav has not levelled any allegation against this appellant that he either instigated his friend Manoj or in any way helped him for inflicting the dagger blow or provided him dagger and from the evidence on record, it appears that his scuffle with Gokul was a natural one in view of the fact that he was called a lame and the fact that he is a lame. I do not find any complicity of this appellant in the alleged murder of Gokul Verma. The real assailant was Manoj and he has surprisingly been convicted under Section 304 Part II IPC and was sentenced for the period already undergone by him in jail and he remained in custody for four years only but actually he should be convicted under Section 302 IPC and there is no such allegation against this appellant. 11. In the result, this appeal succeeds and appellant is acquitted of the charges levelled against him. Since he is on bail, he is discharged from the liability of his bail bond.