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2006 DIGILAW 1318 (JHR)

Jaswant Pathak v. State of Bihar (Now Jharkhand)

2006-11-13

AMARESHWAR SAHAY, DHANANJAY PRASAD SINGH

body2006
JUDGMENT .P. Singh, J 1. All the five appellants stand convicted under Section 302/149 of the Indian Penal Code and each of them have been sentenced to undergo imprisonment for life. 2. The factual matrix leading to his appeal are that in the morning of 7.7.1993 at about 9 a.m. appellant Vinod Pathak and Raj Kumar Pathak entered in an scuffle with deceased Devendra Pathak and PW 1 Satish Pathak regarding destruction of Chabutara of the Handpump set up by the Government in village Lohri P.S. Lesliganj. According to the prosecution case the appellants have caused damages to the Chabutara on which PW 1 and deceased objected why they were damaging the said Handpump. Further stated the appellants asserted that they would damage it, as it does not belong to them. This lead to further altercation and during the scuffle appellant No. 4 Raj Kuamr Pathak and appellant No. 5 Narbadeshwar Pathak caught hold of the deceased while appellant No. 1 Jaswant Pathak gave a dagger blow on the stomach of the deceased. At that time the appellant Nos. 2 and 3, Vinod Pathak and Arun Pathak were standing and exhorting others to commit the offence. 3. The informant Arun Kumar Pathak PW 2 was performing a tuition at village Ponchi when he was informed regarding this incident by Rampreet Mahto at about 10 a.m. The Informant rushed to see his brother and found there being taken to Daltonganj Hospital in a Jeep. He accompanied his brother and brought him to Daltonganj Sadar Hospital where he was declared dead. The Daltonganj Sadar Police was Informed which came and recorded the statement of PW 2 at 12.00 noon and forwarded this fardbeyan for registration of the case on which Lesliganj P.S. Case No. 66 of 1993 was registered on 8.7.1993 against all the appellants. The police conducted investigation and finally submitted charge-sheet against all the appellants under Sections 147, 148 and 302/149 of the Indian Penal Code. The trial of the appellants have been committed to the Court of Sessions where they were charged for offences under Sections 147, 148, 302/149 of the Indian Penal Code, on 8.7.1998. The appellants pleaded not guilty and claimed false prosecution. However, the learned trial Court after examining the witnesses found and held all of them guilty under Section 302/149 of the Indian Penal Code, and sentenced them to undergo imprisonment for life. 4. The appellants pleaded not guilty and claimed false prosecution. However, the learned trial Court after examining the witnesses found and held all of them guilty under Section 302/149 of the Indian Penal Code, and sentenced them to undergo imprisonment for life. 4. This appeal has been preferred on the grounds that the learned trial Court has committed mistake by believing the interested witnesses. It is also submitted that there are material contradiction in the statement of witnesses on the point as to who caught the deceased and who gave Chura blow. It is also submitted that informant has stated before the 10 that the fatal blow was given, by Vinod Pathak whereas witnesses have said it was Jaswant Pathak who gave the fatal blow. It is also submitted that the 10 has not found any blood at the P.O. not found any positive evidence to prove the guilty of the appellants in this case. It is also submitted that PWs 5 and 6 have been declared hostile as they did not support the prosecution version. The learned Counsel for the appellants further pointed out that the charge under Section 302/149 of the IPC could not be proved as it has not come on record that the assault was made in furtherance of common object to cause death. Therefore the appellants may be acquitted of the charges. The learned APP opposed this contention and submits that in view of the clear evidence on record that appellant Jaswant Pathak gave dagger blow on the deceased at the instigation of other appellants. Therefore, they have rightly been convicted under Section 302/149 of the Indian Penal Code. 5. We have anxiously considered the points raised by Sri T.K. Bajaj the learned senior counsel for the appellants. The FIR was lodged by the brother of the deceased who is not claiming to be eye-witness-of the occurrence. It has come on record that he was informed by one Rampreet Mahto regarding the incident and when he went to see his brother, he found him being shifted to Sadar Hospital Daltonganj on a Jeep. This informant has stated these fact 9 at 12 noon same day before the police in which he gave information that he was informed by PW 1. PW 3 Satish Pathak and Pradeep Kumar Pathak. This informant has stated these fact 9 at 12 noon same day before the police in which he gave information that he was informed by PW 1. PW 3 Satish Pathak and Pradeep Kumar Pathak. PW 5 Binay Kumar Pathak has also been examined who except the actual assault has supported the prosecution case. The death of the deceased Devendra Pathak, brother of the informant with injury caused by sharp cutting weapon such as Chura, has been proved by PW 7 Dr. Sitaram Choudhary who conducted the post-mortem report at 2 p.m. on 7.7.1993 at Sadar Hospital Daltonganj. He found one injury 4" x 3/4" x abdominal cavity deep and the death to have taken place within six hours. PW 5 Vinay Kumar Pathak has asserted that he heard hulla and went out to see that deceased along with PW 1 Satish Pathak at one side and appellant Raj Kumar Pathak and Vinod Pathak on another side were exchanging abuses and hot words. Thereafter he went inside and came out to find the deceased lying injured with his Intestine coming out of the stomach. He named Satish and Pradeep present at the P.O. PW 6 Mandev Munda is also hear say witness of the occurrence and seen the deceased with injuries. 7. PW 1 Satish Pathak who was present from beginning has supported the case in details. He has been cross-examined at length in which he asserted that the incident took place because of destruction of the Chabutara of Handpump. He has described the weapon as one side edged sharp cutting weapons about 12" long. He further admitted vide para 7 that just before that one day earlier dispute has arisen on the point of drawing water from the Handpump. PW 3 Pradeep Pathak during cross-examination admitted that he was cousin of the informant. He admitted in para 4 that appellants were Gotivas. According to him the weapon of assault was one sharp edged weapon with which the deceased was given the fatal blow. He has proved the seizure lists with his signature as Ext. 2. PW 4 is the sister of the deceased Jaswanti Devi who came out of the house hearing hulla and saw the appellant Jaswanti Pathak giving fatal blow on the deceased while appellant Raj Kumar Pathak and Narbadeshwar Pathak were holding the deceased. He has proved the seizure lists with his signature as Ext. 2. PW 4 is the sister of the deceased Jaswanti Devi who came out of the house hearing hulla and saw the appellant Jaswanti Pathak giving fatal blow on the deceased while appellant Raj Kumar Pathak and Narbadeshwar Pathak were holding the deceased. She further asserted that this incident took place because of destruction of Chabutra of Handpump by the appellants vide para 5. She denied that she has named Vinod Pathak as the assailant vide paras 6 and 7. 8. Informant PW 2 Arun Pathak, not an eye-witness of the occurrence has supported the above named witnesses who were present at the PO at the time of the occurrence. He has been cross-examined at length in which he denied that he has stated to police that Vinod Pathak has given fatal blow and stated by the deceased. He asserted that deceased was not in a position to speak and he got the information from PW 5. The informant appears to be truthful because if he has any intention to state falsely. He could have asserted that he was present at the time of occurrence and saw the actual assault. His admission that he got information from PW 1 Satish Pathak, PW 3, Pradeep Kumar Pathak and PW 4 Jaswanti Devi clearly goes to prove that PW 2 Arun Pathak is not stating falsely. His further admission that deceased Devendra Pathak could not speak shows that he was not interested in exaggerating or stating what he has not seen. PWs 1, 3, 4 and 5 to this extent that scuffle took place for destruction of Chabutara of Handpump are consistent. The absence of PW 2 at the time of actual assault does not make the prosecution case week rather he say that he came out and saw the deceased fallen with injury. PWs 1, 3 and 4 have consistently supported the fact that scuffle took place and during this scuffle deceased was caught hold by Narbadeshwar Pathak and Raj Kumar Pathak while Jaswant Pathak gave the fatal blow. 9. PW 8 the 10 in this case after registration of the case has proved the inquest report as Ext. 4 not prepared by him as the dead body has already been sub-jected to post-mortem report at Sadar Hospital Daltonganj on 7.7.1993. 9. PW 8 the 10 in this case after registration of the case has proved the inquest report as Ext. 4 not prepared by him as the dead body has already been sub-jected to post-mortem report at Sadar Hospital Daltonganj on 7.7.1993. During cross-examination this witness has not brought on record anything material which could support the defence version. The appellants during their examination under Section 313, Cr PC have not stated any specific defence rather denied everything, 10. The main points raised by the learned Counsel for the appellants is that even if prosecution case is accepted the intention of the appellant was not to cause death. It is submitted that on single blow resulting in death during scuffle and hot exchange of words goes to prove that the appellants had no intention to cause death. Therefore, the conviction of the appellants under Section 302/149 of the IPC deserves to be set aside. Learned senior counsel Mr. T.R. Bajaj further submitted that in the circumstances of the case the maximum offence which stands proved is under Section 326 of the IPC. Therefore the sentences passed against the appellants deserve to be set aside or modified at least in this context reliance was place on 2000 CLJ 12: 2000 (3) ECC 978 and 2002 (3) ECC 199. 11. Our attention has been drawn towards the fact that in absence of any repeated blow on the deceased, intention of the appellants was not to cause death. Learned Counsel for the appellants further pointed out that in such circumstances the Hon'ble Apex Court has held maximum punishment under Section 326 would be sufficient. It is also submitted that appellant Arun Pathak has not been attributed any overt act to his credit. Therefore, his conviction is not maintainable. We have gone through the evidence available on the record. Though the appellant No. 3 (Arun Pathak) is said to be present he has not been attributed with any specific overt act. Therefore, we find that the conviction of appellant Arun Pathak under Section 302/149 of the IPC cannot be maintained. Accordingly he is found not guilty and acquitted of the charges and he is discharged from the liabilities of his bail bonds. 12. We have further considered the submissions that remaining four appellants have no Intention to cause death. Therefore, we find that the conviction of appellant Arun Pathak under Section 302/149 of the IPC cannot be maintained. Accordingly he is found not guilty and acquitted of the charges and he is discharged from the liabilities of his bail bonds. 12. We have further considered the submissions that remaining four appellants have no Intention to cause death. The learned Counsel has relied upon the decisions mentioned above in this context and tried to persuade us that when specific intention to cause death is made out from the overt acts asserted against the appellants, sentences for lesser charges are sufficient. In the present facts, we find that deceased was given a single blow by appellant Jaswant Pathak, admittedly during hot exchange of abuses and scuffle. The evidence available on the record does not show that any attempt to repeat the blow has been made. In such circumstances, we are of the view that the charge under Section 302/149 of the IPC Is not made out. However, a charge under Section 304 Part II along with Section 34 of the IPC has been proved beyond doubts. Accordingly the conviction under Section 302/149 of the IPC is set aside and In lieu thereof, they are found guilty under Section 304 Part II of the Indian Penal Code and accordingly they have been sentenced to undergo RI for 7 years each under Section 304 Part II of the Indian Penal Code. 13. The appellant Nos. 2 (Vinod Pathak), 4 (Raj Kumar Pathak) and 5 (Narbadeshwar Pathak) are on bail. Their bail bonds are hereby cancelled and they are directed to surrender before the trial Court to serve out their remaining sentences. 14. This appeal is partly allowed. 15. I agree.