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2010 DIGILAW 1385 (PAT)

Kesha Nand Choudhary v. State Of Bihar

2010-06-28

AKHILESH CHANDRA, DHARNIDHAR JHA

body2010
JUDGEMENT Dharnidhar Jha and Akhilesh Chandra JJ. 1. Out of the three appellants, appellant Ram Jatan Choudhary is reported dead and as such his appeal abates. 2. The remaining two appellants along with the deceased appellant Ram Jatan Choudhary stood charged under Sections 302/34 and 323/34 of the Penal Code and were tried by the learned 4th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 291 of 1981 and by the judgment delivered on 25th of May, 1988 appellant No. 1 Kesha Nand Choudhary was found guilty of committing offence under Section 302 of the Penal Code. The remaining two accused, i.e., appellant Jai Ram Choudhary and deceased Ram Jatan Choudhary were acquitted under Section 302 of the Penal Code but were held guilty of committing offence under Section 323 of the IPC and they were directed to be released under Section 360 of the Cr.P.C. on execution of a bond of Rs. 2,000/- with one surety. The appeal was preferred by the three convicted accused who challenged the findings and the sentence/order passed upon them. 3. Fardbayan of informant Ram Chandra Ram (P.W. 5) is the basis of instituting the FIR Ext-2 of the case. It was alleged that the informant and the deceased alongwith others were harvesting onions from a field which had been leased out to the informant by one Ramchela Yadav. The appellant Kesha Nand Choudhary happened to be grazing his buffaloes just by the side of that particular field in which the informant had also grown creepers and plants of different vegetables. Appellant Kesha Nand Choudhary is said to have brought his buffaloes in some part of the field bearing vegetable plants and is further alleged to have grazed them. The informant stated that he forbade him to do it upon which appellant Kesha Nand Choudhary lost his temper and started hurling abuses upon P.W. 5 Ram Chandra Ram and warned him of reaping bad consequences, on account of which appellant Kesha Nand Choudhary called his brother appellant Jairam Choudhary and the other appellant Ram Jatan Choudhary, who came and appellant Kesha Nand Choudhary remonstrated to assault and himself dealt a lathi blow on the head of Jokhan Ram, the son of the informant as a result of which it started bleeding from his head. Jokhan Ram fell down there upon which the remaining two appellants dealt blows on different parts of his bodies. When Sheo Bhukhan Ram, the brother of the informant attempted to intervene, he was also assaulted by appellant Jai Ram Choudhary with lathi on both his upper limbs. The informant was also assaulted and he was hit on his arm.by lathi on account of trying to save himself. 4. It is stated that the hulla which was raised there attracted Jatul Ram(P.W. 1), Lalmuni Kahar (not examined), Bhagwat Ram (P.W. 2), Mishri Ram (not examined) and others of the village who also saw the occurrence. Lalmuni Kahar also received injury when he attempted to intervene. It is alleged that the accused persons ran way from there after occurrence, whereafter the injured Jokhan Ram was put on a cot and brought to Nokha hospital for treatment but he died before he could reach there. 5. The Jardbeyan of P.W. 5 was recorded at Nokha police station and on that basis Ext-2, the FIR was drawn up. PW. 9 S.I. Shiv Shankar Prasad was the officer-in-charge of Sahpur out post under Dinara police station and he received the orders for investigating the case with a copy of the FIR and, accordingly, he proceeded to investigate into the case. He went to the place of occurrence on 22.4.1980 and inspected the place of occurrence which was a piece of land over which he found signs of harvesting of onions in one of the sub- plots. He also found plants and creepers of vegetables trampled. He found the leaf part of onion there and some blood on a particular plant which was seized by preparing the seizure memo Ext-5. He recorded the statements of different witnesses. He received the supplementary. case diary from S.I. Binda Prasad Singh who had held inquest upon the dead body along with the copy of the document and after closure of the investigation submitted charge-sheet. 6. The defence of the appellant was manifold. It was suggested to P.W. 4 the wife of the deceased that her husband had not been assaulted in the manner as alleged by the prosecution and rather had fallen down from a tree and had received injury in his head and died on that account. 6. The defence of the appellant was manifold. It was suggested to P.W. 4 the wife of the deceased that her husband had not been assaulted in the manner as alleged by the prosecution and rather had fallen down from a tree and had received injury in his head and died on that account. The other plea was that while the occurrence was going on, the deceased happened to dash against the branch of a guava tree and on that account the injury to his head was caused and ultimately it proved fatal. It may be pointed out that no witness in support of the defence appears examined. 7. In support of the prosecution as many as 12 witnesses were examined out of whom P.W. 3 Ram Prasad Singh, P.W. 6 Ram Chandra Lal, P.W. 7 Shoab Alam Khan, P.W. 10 Prabhunath Dubey, P.W. 11 Bhubneshwar Dubey and P.W. 12 Jawahir Ram were witnesses of formal character, having signed as witnesses one document or the other as may appear from their evidence. The material fact has been supported as eye- witnesses by P.W. 1 Jatul Ram, P.W. 2 Bhagwat Ram, P.W. 4 Shiv Kumari and P.W. 5, the informant. P.W. 8 Dr. Ramjee Prasad had held postmortem examination on the dead body of Jokhan Ram and had issued postmortem examination report Ext-3. 8. Sri Pashupati Pd. Sinha has appeared on behalf of the appellants in support of the appeal and has taken us through the evidence of the material witnesses, namely, P.Ws. 1, 2, 4 and 5 and has submitted that the evidence of P.W. 4 may not be acceptable as she appears not an eye-witness and may not be present at the place of occurrence. As regards the other witnesses their evidence also suffers from one defect or the other and some facts which have been stated by each of them appear rendering their evidence also not fit to be accepted. Genesis and manner of occurrence have not been proved and, lastly, whether it could be a case under Section 302 of the Penal Code or 304 part 2 of the Penal Code was not considered by the learned trial Judge. Genesis and manner of occurrence have not been proved and, lastly, whether it could be a case under Section 302 of the Penal Code or 304 part 2 of the Penal Code was not considered by the learned trial Judge. It was contended that the appeals of Jai Ram Choudhary and Ram Jatan Choudhary has to be allowed in the light of the fact that they are said to have assaulted the deceased with lathi, but there is only one injury which was recorded by doctor P.W. 8 while holding postmortem examination and it becomes doubtful whether the charge under Section 323 of the Penal Code was established. It was also contended that some of the witnesses were not examined. 9. Sushri Shashi Bala Verma, learned counsel appearing for the State has supported the judgment by submitting that there was no previous enmity or bad blood between the parties and there was an eruption of the occurrence suddenly and in that course the other accused persons than appellant Kesha Nand Choudhary came there and they simultaneously assaulted the deceased Jokhan Ram. It might be an unintended act, but the witnesses have deposed to the facts necessary to prove the facts by the prosecution and as such the appeal has to be dismissed. 10. We first take up the contention that the genesis of the occurrence has not been established. As may appear from the narration of facts the occurrence initiated on account of the alleged grazing of buffaloes and thereby damaging the vegetable, creepers and plants. The contention was that no plant was found grazed and the I.O. did not find any hoof-mark in the part of the field. It was contended that some of the witnesses have stated that the field had been watered or irrigated 5-6 days prior to the occurrence and it was ordinary expectation that had any buffalo trespassed inside the part of the field, it must have left mark of its hoofs over there. It was contended that not finding the plants grazed or any hoof-mark could very well create doubt that any animal had been taken by appellant Kesha Nand Choudhary for grazing. 11. We have perused the evidence of P.W. 9 in the relevant paragraph, as regards the description of the place of occurrence and the cross-examination part of the evidence on that point. 11. We have perused the evidence of P.W. 9 in the relevant paragraph, as regards the description of the place of occurrence and the cross-examination part of the evidence on that point. The place of occurrence has been described in paragraph-2 at page 38 of the paper book. It has been stated by P.W. 9 that he found the part of the field bearing signs as if onions had been uprooted from there and he further found the creepers of pumpkin and bitter-guard there and he found those plants or creepers trampled. He further stated that he found the leaf part of onions cut and lying there, which to us indicates that the onions had been harvested which fact is further indicated by the finding recorded by P.W. 9 that he found some signs of uprooting of onions. It is true that P.W. 9 has not stated in paragraph-2 and has rather stated in paragraph-5 that he did not find any hoof- mark in the field nor he found the plants grazed, but we must not forget the fact that the informant was uprooting onion on that particular day on that particular plot appears established by the evidence of P.W. 9 also. 12. The evidence of witnesses pointed out that the field had been irrigated some 5-6 days prior to the occurrence. The occurrence had taken place on the 21st of April, 1980. The month of April in the district of Rohtas is quite hot and one could never get signs of irrigation, i.e., soft soil in a field on the 21st day of April in any year of the field had been irrigated 5-6 days earlier. In fact our personal experience of the climatic conditions of that part of the State in the month of April-May and onwards up to the end of June is that it could be very difficult and dangerous to tread outside the house during the month of April as one could very well get a sun-stroke. This could probably indicate as to what would be the temperature in the 3rd week of April. We. could, as such, deduce that on the 21st day of April, the soil would have dried up and it could have been very difficult for the I.O. to find out a hoof mark in the field. This could probably indicate as to what would be the temperature in the 3rd week of April. We. could, as such, deduce that on the 21st day of April, the soil would have dried up and it could have been very difficult for the I.O. to find out a hoof mark in the field. Initial part of the prosecution story, that there was uprooting of onions and there was some incident on the field appears corroborated by the evidence of P.W. 9 also, as he found the plants trampled and he further found some mark of blood on a particular plant. 13. There would not have been much bleeding from the body of the deceased because the doctor who held postmortem examination found two injuries one on the head which was a lacerated wound on the left side of the scalp and the other was a bruise on the left side of thigh on its external surface. Laceration may cause bleeding but in very little quantity. It was on head and one could assume that whatever blood had come out must have remained entangled with the hairs of the deceased and had dropped on to his wearing apparels and then a little bit of it could have come down on the ground so the evidence of trampling appears to us suggestive of the fact that there was some incident and as such the contention that we should reject the whole prosecution story on account of not getting any hoof-mark there appears to us not reasonably acceptable. 14. As regards the manner of occurrence except P.W. 4 we do not have any hesitation of recording that the evidence of other witnesses appears supporting the material facts of the case. We have some hesitation in accepting the evidence of P.W. 4 Shiv Kumari for two reasons. The first reason is that, admittedly, when the accused persons assembled there the witness was not produced as she was stated to have gone to her house for bringing water. P.W. 4 also stated that she had gone ahead of the occurrence to her house for bringing water, but when she heard some bulla she rushed out of her house without water to see the occurrence. She could have really seen the occurrence, we doubt it and that doubt gets confirmed from her statement which she had made before the police during the investigation. She could have really seen the occurrence, we doubt it and that doubt gets confirmed from her statement which she had made before the police during the investigation. We find from paragraph-5 at page 21 of the paper book that she had stated to the police that at the time, of occurrence she was at the house and on hearing hulla, she came there and found her husband was lying in the onion field. The above statement has been corroborated by P.W. 9, S.I. Shiv Shanker Prasad in paragraph-6 and considering these two statements which have been duly proved by the defence, we cannot act upon her evidence. 15. So far as the other witnesses are concerned, there might be some aberration appearing in their statement or there may be some minor deviation in them, but as regards the central material facts of the ease, we find that they lend credible support to the story. The witnesses were persons engaged in uprooting the onions and their presence have not been challenged or has not been shown unacceptable by the defence. They have given valid reasons for their respective presence at the place of occurrence and thereafter they have gone on to support the manner of occurrence and the material facts of the prosecution case in sufficient detail and satisfactory. Their evidence was accepted by the learned trial Judge who had the opportunity of seeing them in the witness box and that has been used for recording the conviction. We on perusal of the evidence of P.Ws. 1, 2 and 5 are satisfied that their credibility has not been impeached by the defence during their cross-examination and their evidence was rightly utilized by the learned trial Judge in holding that they were credible and trustworthy witnesses. 16. So far as the charge under Section 323 of the Penal Code is concerned, it is alleged in the FIR that the deceased after he had fallen down after receiving a lathi blow on the head from Kesha Nand Choudhary was given blows with lathi. The two appellants Jai Ram Choudhary and Ram Jatan Choudhary assaulted the deceased with lathi. There is no specific allegation against any of them as to what part of the body was hit by both of them or either of them. The two appellants Jai Ram Choudhary and Ram Jatan Choudhary assaulted the deceased with lathi. There is no specific allegation against any of them as to what part of the body was hit by both of them or either of them. In his evidence P.W. 5 Ram Chandra Ram gave the same general statement as may appear from paragraph-1 at page-21 of the paper book in cross-examination. Similar is the evidence of all remaining witnesses. The doctor P.W. 8 found a solitary bruise on left thigh of the deceased. We find that the bruise on the left thigh was on the external surface; It had no dimensions and though the doctor has stated that the injuries could not be caused by fall but we could take a view that particular injury on left thigh on the external part of it may also be caused on account of the deceased having fallen on the ground. Besides, the two accused persons were alleged to have assaulted the deceased with lathi and the doctor found only one injury. We find ourselves in quite a dilemma as to which of the two accused persons could be held responsible for causing that particular injury. This is the reason that we are inclined to take a view that the conviction of appellant Jai Ram Choudhary and deceased appellant Ram Jatan Choudhary under Section 323 of the Penal Code was not justified and that part of the judgment to us appears not sustainable. 17. In the light of the discussions made above, what we find is that the learned trial Judge was fully justified to hold appellant Kesha Nand Choudhary guilty of assaulting the deceased but as regards appellant Jai Ram Choudhary and deceased appellant Ram Jatan Choudhary they could not be said with certainty that they had assaulted the deceased, as a result of which the appeal of appellant Jai Ram Choudhary succeeds and that is allowed and the conviction of sentences passed upon him are hereby set aside. 18. This brings us to consider the last contention of the learned counsel that the facts may not be constituting an offence under Section 302 of the Penal Code and it may be a case which could be under Section 304 Part-II, IPC. 18. This brings us to consider the last contention of the learned counsel that the facts may not be constituting an offence under Section 302 of the Penal Code and it may be a case which could be under Section 304 Part-II, IPC. The facts of the case are that the incident occurred at a very trifle matter, i.e., for the alleged grazing of the buffaloes in some part of the field. There was some hot exchange of words, probably, some abuses were also hurled by the side of the informant, upon which the appellants got enraged and that ultimately turned into calling the other appellants by appellant Kesha Nand Choudhary and himself remonstrated in giving the blow. The evidence on record indicates that Kesha Nand Choudhary did not repeat the blow and further that it was given in a heat of passion which could have generated on account of hot exchange of words and abuses. But, this remains a fact that Kesha Nand Choudhary was giving a blow on the head of the deceased: He might not have the intention to kill but he must be knowing the implication of his acts and as such, he could assigned the knowledge that the blow with a lathi which was being wielded on the head of the deceased may prove fatal to him. In our considered view the facts constituted an offence under Section 304 Part-II and we accordingly alter the conviction of appellant Kesha Nand Choudhary from 302 to 304 Part-II of the Penal Code. The appellant has been sentenced to R.I. for life but we mould that sentences and direct him to suffer R.I. for five years and also to pay a fine of Rs. 5,000/- which shall be paid to the nearest kin of the deceased. With the above modification in conviction and sentence as regards appeal of Kesha Nand Choudhary, his appeal is dismissed. 19. The appellant Kesha Nand Choudhary shall surrender to his bond, which stands cancelled, to serve out the remaining part of his sentence. As regards appellant Jai Ram Choudhary, on account of being acquitted, he shall be discharged from the liabilities of bail bond which he had furnished before the trial Court.