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2006 DIGILAW 351 (JHR)

Dasrath Pasi v. State Of Bihar (Now Jharkhand)

2006-04-12

N.DHINAKAR, RAKESH RANJAN PRASAD

body2006
JUDGMENT 1. The appellants, eight in number, were arrayed as A-1 to A-8 before the trial judge. The 1st and 2nd appellants were charged under Section 148 and appellants 3 to 8 under Section 147 of the Indian Penal Code. All the accused were also charged under Sections 449, 323 and 302 read with Section 149 of the Indian Penal Code. The trial judge, while convicting the appellants, as charged, and sentencing each one of them to imprisonment for life under Section 302 read with 149 of the Indian Penal Code, did not award any separate sentence under Sections 147, 148, 323 and 449 of the Indian Penal Code. The present appeal is against the said conviction and sentence. 2. The facts, in nutshell, are as follows : Harmunia Pasin, PW-2, is the wife of the deceased, Arjun Pasi. PW-1, Ganga Pasi, is their son. They were residents of village Athmoria within the police station limits of Mohanpur. The appellants-accused were also the residents of the same village. On 17.6.1985 at about 9.00 a.m. cattle belonging to one Gorki Pasin grazed the paddy seedlings of the deceased. Ganga Pasi, PW-1, therefore, drove the cattle to his house and on the way he was accosted by Karu Pasi, A-7. A-7 after fisting and slapping PW-1, a boy aged 8 years by then, took away the cattle. PW-1 returned home weeping. He informed his parents, namely the deceased and Harmunia Pasin (PW-2), the wife of the deceased. It is the further case of the prosecution that the appellants followed PW-1 to the house of the deceased and thereafter started beating the deceased and that he was assaulted with Tangi and Farsa by Dasrath Pasi and Kamal Pasi, while the other appellants beat him with lathis. When PW-2, Harmonia Pasin, intervened, she also suffered injuries at the hands of the appellants. Arjun Pasi and PW-2, Harmonia Pasin, went to Sadar hospital from where information was sent to the police. The police officer went to the hospital and recorded Fardbayan, Ext.3, given by PW-2 at about 12.45 p.m. A crime was registered at the police station. After the crime was registered, investigation was taken up by PW-11, Surendra Singh. He examined witnesses and recorded the statements. 3. PW-2 was examined by PW-9, the Casualty Medical Officer, who found bruise and laceration. He has issued Ext.4, the injury report, for the injuries found on PW-2. After the crime was registered, investigation was taken up by PW-11, Surendra Singh. He examined witnesses and recorded the statements. 3. PW-2 was examined by PW-9, the Casualty Medical Officer, who found bruise and laceration. He has issued Ext.4, the injury report, for the injuries found on PW-2. Dilip Pasi, who is son of the deceased and PW-2, also suffered injury and was examined by PW-10, Dr. Kameshwar Prasad, who found laceration and abrasion and the injury report, Ext.5, was issued. While the investigation was proceeding, Arjun Pasi breathed his last on 18.6.1985. The crime was altered to Section 302 of the Indian Penal Code. PW-11 proceeded to the hospital and conducted inquest and the inquest report is Ext.2. PW-11 gave a requisition to the Medical Officer, requesting him to conduct autopsy. 4. On receipt of the requisition, PW-10, Dr. Kameshwar Prasad, conducted autopsy on the dead body of Arjun Pasi and he found abrasion, ecchymosis, swelling, laceration and incised wound of different dimensions upon different parts of the body. The doctor found marks of hamatoma over the scalp and fracture of both temporal and parital bone. He also noticed fracture of 7th, 8th and 9th ribs. The doctor (PW-10) also issued Ext.6, the post mortem report, with his opinion that the death is on account of shock and haemorrhage due to the injuries suffered by the deceased. 5. After the completion of investigation, final report was filed. When the accused-appellants were questioned under Section 313 Cr.P.C., they denied all the incriminating circumstances. 6. The learned Counsel appearing for the appellants submits that the occurrence could not have taken place in the manner suggested by the prosecution, since admittedly there was absolutely no motive for any of the accused-appellants to attack and cause injury on Arjun Pasi and having disbelieved PW-6, the trial court was not justified in accepting the evidence of PWs-1 and 2, son and wife of the deceased, more so, when PW-4, the other eye witness, turned hostile. 7. We have heard Mr. R. Mukhopadhyay, learned A.P.P. on the above contention. 8. There can be no dispute that Arjun Pasi died on account of homicidal violence. Dr. Kameshwar Prasad, who was examined as PW-10, gave evidence and marked Ext.6, the post mortem report, containing his opinion that the death is on account of shock and haemorrhage, as a result of the injuries suffered by the deceased. 8. There can be no dispute that Arjun Pasi died on account of homicidal violence. Dr. Kameshwar Prasad, who was examined as PW-10, gave evidence and marked Ext.6, the post mortem report, containing his opinion that the death is on account of shock and haemorrhage, as a result of the injuries suffered by the deceased. We, therefore, accept the case of the prosecution that the deceased died on account of homicidal violence. 9. The prosecution, in order to establish that the appellants 1 and 2 attacked the deceased with Tangi and Farsa and the other appellants beat the deceased with Lathis, examined four witnesses as PWs-1, 2, 4 and 6 and out of them, PW-4 turned hostile. The trial court disbelieved PW-6 for well considered reasons. We, therefore, on the evidence of PWs 1 and 2, have to find out whether the deceased suffered injuries at the hands of the accused/appellants. 10. The case of the prosecution, as could be seen from the evidence of the above two witness, is that at about 9.00 a.m. on 17.6.1985 when the cattle trespassed into the field and grazed the paddy seedlings belonging to the deceased, PW-1, aged about 8 years and son of the deceased, drove them and that A-7, Karu Pasi, questioned him and assaulted him. The boy went home weeping and informed his parents and that according to the prosecution, the appellants also followed the boy and assaulted the deceased and when PW-2 intervened, she was also inflicted with injuries. 11. PW-1 is the son of the deceased, aged about 8 years on the date of occurrence, and PW-2 is the wife of the deceased. PW-2 suffered injuries during the course of transaction. Therefore, it is difficult to disbelieve the evidence of PWs 1 and 2 that the deceased was not inflicted with injuries by the appellants. In fact, nothing worthwhile was suggested to any of the two witnesses to say that the above two witness could not have been present when the occurrence took place. 12. In the absence of any material before us to disbelieve the evidence of PWs-1 and 2 and to hold that the appellants could not have inflicted injuries on the deceased, we accept their evidence. Once we accept their evidence, we cannot but say that the appellants inflicted injuries upon the deceased at 9.00 a.m. on 17.6.1985. 13. 12. In the absence of any material before us to disbelieve the evidence of PWs-1 and 2 and to hold that the appellants could not have inflicted injuries on the deceased, we accept their evidence. Once we accept their evidence, we cannot but say that the appellants inflicted injuries upon the deceased at 9.00 a.m. on 17.6.1985. 13. Now, the question that has to be decided by us is that nature of the offence, committed by the appellants. PW-2, when cross-examined, specifically stated that prior to the date of incident, there was no animosity between the appellants and the deceased and they were living amicably in the village. According to her, the occurrence took place on account of PW-1 driving the cattle from the field as it grazed the paddy seedlings. When we keep the above evidence in mind and look at the material, we cannot but infer that the deceased on getting information from his weeping son about the assault meted out to him by A-7, must have questioned the appellants for their highhanded behaviour and that during the course of transaction the appellants must have beaten the deceased and when intervened, PW-2 was also beaten. 14. In view of the definite evidence of PW-2 that there was no animosity between the parties prior to the date of incident, the evidence of PWs-1 and 2 that the appellants went to the house of the deceased, following PW-1 could only be an exaggerated version as they could not have had any reason to go to the house of the deceased, since even according to the prosecution, the cattle was taken away from the possession of PW-1 by A-7, after he was fisted and slapped. 15. On the above evidence, we are of the view that after PW-1 was slapped and fisted by A-7, he must have informed his father, who is the deceased in this case, and that thereafter the deceased would have questioned the accused, during which he must have suffered injuries. The above conclusion of ours is fortified by the statements made by PW-4 in his evidence that the occurrence took place in the field, though he was treated hostile. 16. The above conclusion of ours is fortified by the statements made by PW-4 in his evidence that the occurrence took place in the field, though he was treated hostile. 16. Once we come to the conclusion that the deceased must have questioned the appellants for their conduct in beating PW-1 and that thereafter occurrence should have taken place, then we cannot say that the appellants formed an unlawful assembly with a common object to beat and kill the deceased. We, therefore, acquit the appellants under Sections 147 and 148 of the Indian Penal Code. For the same reason, we also acquit the appellants for the offence under Section 449 of the Indian Penal Code, as they could not have trespassed into the house of the deceased with a motive to commit an offence, which is punishable with death. 17. Though, we have acquitted the appellants under Sections 147, 149 and 449 of the Indian Penal Code, we have found that the appellants must have beaten the deceased, when he questioned them as to their conduct in assaulting his son, PW-1. Therefore, each accused is liable for his individual overt act, as no common object is found between the appellants. It had come out in the evidence that A-1 and A-2 had inflicted blows with Farsa and Tangi and the evidence of PW-10 is to the effect that the deceased died on account of incised injuries with multiple dimension found on various parts of the dead body. We, therefore, alter the conviction of the accused-appellant Nos. 1 and 2, Dasrath Pasi and Kamal Pasi and set aside their conviction for the offence under Section 302/149 of the Indian Penal Code and instead they are found guilty for the offence under Section 304 Part-I of the Indian Penal Code, since the occurrence had taken place during a quarrel between the deceased and the appellants-accused, and for the said offence, appellant Nos. 1 and 2, Dasrath Pasi and Kamal Pasi, are sentenced to seven years rigorous imprisonment. As appellant Nos. 1 and 2, Dasrath Pasi and Kamal Pasi, are on bail, their bail bonds are cancelled and they are directed to surrender before the court below for serving the sentence. The court below is also directed to take all coercive steps for their arrest. 18. As appellant Nos. 1 and 2, Dasrath Pasi and Kamal Pasi, are on bail, their bail bonds are cancelled and they are directed to surrender before the court below for serving the sentence. The court below is also directed to take all coercive steps for their arrest. 18. It is the very case of prosecution that A-3 to A-8 have beaten the deceased with Lathi and there is no evidence as to which of the accused caused the fracture of ribs, found on the dead body. We, therefore, set aside the conviction of appellants 3 to 8 (A-3 to A-8) under Section 302/149 of the Indian Penal Code and instead each one of them is convicted under Section 324 of the Indian Penal Code, for which each one of them is directed to pay a fine of Rs. 5,000/- and in default of payment of fine, each of them will suffer rigorous imprisonment for a period of six months. 19. We have taken this lenient view in the matter of sentence as regards to A-3 to A-8, taking into consideration that the occurrence had taken place in the year 1985 and that no useful purpose will be served in sending them back to jail at this length of time. 20. The appeals is disposed of, with the above modification in sentence.