JUDGMENT SHYAM KISHORE SHARMA Above named appellants have preferred the instant appeal against the judgment of conviction and order of sentence dated 24th and 27th January, 2005 respectively passed in Sessions Trial No. 189 of 1994 / 110 of 2002 by the learned 3rd Additional Sessions Judge, Sitamarhi whereby the appellants have been convicted under section 302 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life. 2. The Sessions Trial has arisen out of Barginia P.S. Case No. 102 of 1993 instituted on the basis of fard-beyan of informant Jyoti Narayan Mishra recorded by the Assistant Sub-Inspector of Barginia Police Station at 9.00 AM at Primary Health Centre, Bairginia against 9 named accused persons. Jyoti Narayan Mishra (PW 6) in his fard-beyan (not exhibited) claimed that his cousin Lal Babu Mishra (deceased) son of Surendra Mishra (PW 5) was putting sugarcane upon a tyre cart. Villagers Nand Lal Mahto, Sukhari Mahto, Ram Lal Mahto, Niras Mahto, Niranjan Mahto, Hanuman Mahto, Lakshuman Mahto and two sons of Lakshuman Mahto came. Two sons of Lakshuman Mahto were having Farsa and rest were having lathi. On the instigation of Lakshuman Mahto, his one son gave farsa blow upon the head of Lal Babu Mishra and his second son gave farsa blow upon the left leg beneath knee. After the injured fell down, then he was assaulted by lathi by others. On cry, the villagers including the persons working in the nearby field including Sheikh Amirul and many others came and witnessed the occurrence. The injured was carried to hospital where he was unconscious. Initially the case was registered under sections 307, 147, 148, 149, 324, 323, 379 of the Indian Penal Code and the investigation was carried into. During investigation injured died, so section 302 IPC was added. The fard-beyan has been witnessed by Govind Mishra (PW 1) (Ext. 1/6) and Kaushal Kishore Jha (PW 4) (Ext. ¼). Signature of the informant on the fard-beyan was exhibited as Ext. 1/5. After investigation chargesheet against eight accused persons, namely, Nand Lal Mahto, Niranjan Mahto, Sukhari Mhato, Hanuman Mahto, Ram Lal Mahto, Narendra Mahto, Rajendra Mahto and Hanuman Mahto was submitted. Accordingly, cognizance was taken and the case was committed to the Court of Sessions where charge under sections 302 of the Indian Penal Code was explained to all the accused persons. 3. Accordingly, cognizance was taken and the case was committed to the Court of Sessions where charge under sections 302 of the Indian Penal Code was explained to all the accused persons. 3. In course of trial, Niranjan Mahto and Hanuman Mahto died, so the trial proceeded against remaining six accused persons who are appellant here. 4. Before the trial court, the prosecution examined Govind Mishra cousin of the deceased (PW 1), Sheikh Nirul (PW 2), Sheikh Amirul @ Nurul (PW 3) both neighbours of the deceased, Kaushal Kishore Jha maternal brother of the deceased (PW 4), Surendra Mishra the father of the deceased (PW 5), Jyoti Narain Mishra the informant (PW 6) and Dr. Krishna Chandra Mishra (PW 8) who conducted autopsy of the dead body of the deceased and prepared the post mortem report (Ext. 2). 5. Defence has examined Nagendra Singh and Bharat Prasad as DW 1 and DW 2 respectively. 6. The document exhibited by the parties are: (Ext. 1) the signature of PW 1 on inquest report, (Ext. 1/1) the signature of Surendra Mishra on inquest report which has been proved by PW 1, (Ext. ½) the signature of PW 1 on seizure list identified by PW 1, (Ext. 1/3) the signature of Jyoti Narayan Mishra on seizure list identified by PW 1, (Ext. 3) the injury report prepared by the doctor of Primary Health Centre, Bairginia which was exhibited on the petition of the prosecution under section 294 of the Cr.P.C. with objection. The complaint petition filed before the C.J.M. against Lal Babu Mishra by Pramila Devi has been exhibited as Ext. A. Thumb impression of Pramila Devi on complaint petition is Ext. B. Thumb impression of Pramila Devi on protest petition as Ext. C, order Sheet of Complaint Case No. C-1/653 of 1993 filed by Pramila Devi Ext. E and petition dated 18.12.1993 is Ext. F. 7. The Trial Court after considering the evidence found the appellants guilty against which the instant appeal has been preferred. Now this Court is to re-appreciate the evidence and see as to whether the prosecution has succeeded in proving the charge against the accused beyond the shadow of all reasonable doubts or not. 8. F. 7. The Trial Court after considering the evidence found the appellants guilty against which the instant appeal has been preferred. Now this Court is to re-appreciate the evidence and see as to whether the prosecution has succeeded in proving the charge against the accused beyond the shadow of all reasonable doubts or not. 8. The doctor (PW 8) has held post mortem examination on the dead body of Lal Babu Mishra Son of Surendra Mishra on 18.12.1993 at 3.10 P.M. and has found following ante mortem injuries: (a) External injuries:- (i) lacerated wound 1 ½” x ½” x scalp deep over left side of the scalp (ii) incised wound near and below the knee joint on lateral side cutting the underlying fibula bone 4”x2 ½” x 1 ½” (iii) incised wound at the base and front part of the thumb of left side 1” x ¼” x muscle deep (iv) multiple bruise marks on right arm and fore-arm (v) multiple bruise marks on back (vi) multiple bruise marks on left shoulder, arm and fore-arm (vii) multiple bruise marks on left thigh and leg (viii) multiple bruise marks on right thigh and leg (b) Internal injuries: on opening of the skull, the cranium was fractured from right to left on the vault of skull and 7” long underlying brain matter was lacerated and full of blood. On opening the thorax, both lungs and heart were found intact and the chambers of the heart were found empty and pale. On opening of abdominal cavity, all the vital organs and viscera were found intact but pale. Stomach contained some digested food particles, urinary bladder contained a small quantity of urine, genitalia are normal. The time elapsed since death was within 24 hours. The cause of death is excessive haemorrhage and shock as a result of above mentioned injuries no. (ii) and (iii) by sharp cutting weapons and rest injuries were caused by hard and blunt substance. The deceased was aged about 25 years. 9. The doctor has opined that the death was on account of incised injuries caused by sharp cutting weapon which has been attributed to Mahendra Mahto and Rajendra Mahto. 10. The informant of the case, PW 6, while deposing has stated that on 17.12.1993 at 2.00 PM, he was in the field of Lal Babu Mishra where sugarcane was being uploaded on tyre cart through labourers: Amirula and Nurul. 10. The informant of the case, PW 6, while deposing has stated that on 17.12.1993 at 2.00 PM, he was in the field of Lal Babu Mishra where sugarcane was being uploaded on tyre cart through labourers: Amirula and Nurul. At that very place Rajendra Mahto, Mahendra Mahto having farsa came, Lakshuman Mahto, Ram Lal Mahto, Hanuman Mahto, Nand Lal Mahto, Sukhari Mahto, Neeras Mahto and Niranjan Mahto having lathi came. Lakshuman Mahto wanted to know from Lal Babu Mishra as to why he had declined to give Patlon to his family members but Lal Babu Mishra stated that it was required by him so he could not give it. At that very time at the instigation of Lakshuman Mahto, Rajendra Mahto with Farsa assaulted upon head of Lal Babu Mishra and Mahendra Mahto assaulted him by Garansa beneath the left knee. As a result of which Lal Babu Mishra fell down, thereafter, he was assaulted by others. His watch was taken by Nand Lal Mahto. The injured was carried to Barginia Government Hospital where in course of treatment he died at 2.00 AM in the night. The Police Officer has recorded the fard-beyan in the Government Hospital and thereafter investigation has been started. Though the informant has been cross-examined in detail but the prosecution could not take out anything and his evidence remained intact that two persons Mahendra Mahto and Rajendra Mahto assaulted and that proved fatal. Others have assaulted by lathi. 11. The informant has been supported by other eye witnesses; PWs 1. 2, 3 and 4. 12. PW 3, in paragraph 11 of his deposition, has stated that he was deposing for the first time in the Court and it can safely be inferred that his statement under section 161 Cr.P.C. was not recorded. Even if PW 3 is excluded for the purpose of consideration of his evidence then also the evidence of PWs 6, 1 and 2 shows that accused Mahendra Mahto and Rajendra Mahto were having Farsa and assaulted Lal Babu Mishra which proved fatal. 13. Learned counsel for the appellant has submitted that non-examination of the investigating officer has caused grave prejudice to the defence and the Trial Court has overlooked the defence version that Lal Babu Mishra has tried to outrage the modesty of Pramila Devi and in course of struggle he received sharp inflicted injuries. 14. 13. Learned counsel for the appellant has submitted that non-examination of the investigating officer has caused grave prejudice to the defence and the Trial Court has overlooked the defence version that Lal Babu Mishra has tried to outrage the modesty of Pramila Devi and in course of struggle he received sharp inflicted injuries. 14. The bare perusal of the complaint petition indicates that it was filed after the occurrence. Pramila Devi daughter of Rajendra Mahto filed C-1/ 653 of 1993 in which it was alleged that Lal Babu Mishra was of loose character and was teasing ladies. The complaint was referred to Police and Barginia P.S. Case No. 47 of 1993 under sections 376/511 of the Indian Penal Code was instituted against Lal Babu Mishra but as submitted the I. O. was gained over and, so the complainant filed protest petition. 15. If both the versions are looked into, then it appears that Lal Babu Mishra received injuries by sharp cutting weapon which ultimately led to his death. Complaint petition undoubtedly was a means adopted by defence to create a doubt with regard to prosecution version of occurrence. Filing of complaint after a person is made accused is very common and a complaint petition is filed for putting other side in further pressure and this was done in the present case. 16. The evidence, if scanned, indicates that Lal Babu Mishra has received injury by sharp cutting weapon and that has proved fatal. Though he had other injuries but those were not vital and were of petty nature. So the case of Mahendra Mahto and Rajendra Mahto is different from the case of Nand Lal Mahto, Ram Lal Mahto, Sukhari Mahto and Niras Mahto. Mahendra Mahto and Rajendra Mahto were having sharp cutting weapon and they have inflicted injuries which proved fatal. Other four persons have not given any fatal injury. Therefore, their case stands on different footing. The evidence so far as persons armed with lathi is concerned, is not consistent. The manner of occurrence indicates culpability of Mahendra Mahto and Rajendra Mahto in causing death. There is general tendency to implicate some innocent persons also. All the accused persons are closely related and it appears that after receiving injuries from Mahendra Mahto and Rajendra Mahto others have also been framed in, so their participation appears to be doubtful. The manner of occurrence indicates culpability of Mahendra Mahto and Rajendra Mahto in causing death. There is general tendency to implicate some innocent persons also. All the accused persons are closely related and it appears that after receiving injuries from Mahendra Mahto and Rajendra Mahto others have also been framed in, so their participation appears to be doubtful. Insofar as charge under section 302 Indian Penal Code against Rajendra Mahto and Mahendra Mahto is concerned, it is apparent that they have given Farsa blow. One blow by Mahendra Mahto was upon the leg whereas another blow was upon vital portion. However, the evidence produced do not show that Mahendra Mahto was having any knowledge or intention to cause death as the injury attributed to him was on leg and that was the only injury which has been inflicted by him. If a person commits culpable homicide not amounting to murder, then the court is required to see as to whether he had any intention of causing death or of such bodily injury is not likely to cause death. So far as evidence against Rajednra Mahto is concerned, it is apparent that he had intention to cause death as injury inflicted by him on vital part. Therefore, he does not deserve punishment under section 302 Indian Penal Code rather he is required to be punished under section 304 Part I of the Indian Penal Code. He is in custody since 9.9.1997, meaning thereby he had completed 15 years in custody, so period undergone by him shall be deemed to be sufficient for the ends of justice. 17. So far as Mahendra Mahto is concerned, the evidence against him is that he had no intention to cause death or to cause such bodily injury as is likely to cause death because injury attributed to him was beneath the left knee which is not the vital part of the body. He cannot be given similar treatment as given to Rajendra Mahto. His convitino is required to be altered from section 302 IPC to 304 Part II of the Indian Penal Code. He is in custody since 24.2.2005. Therefore, his sentence is reduced to the period undergone in custody by him. 18. In view of the discussions made above, judgment of conviction and sentence awarded to the appellant nos. His convitino is required to be altered from section 302 IPC to 304 Part II of the Indian Penal Code. He is in custody since 24.2.2005. Therefore, his sentence is reduced to the period undergone in custody by him. 18. In view of the discussions made above, judgment of conviction and sentence awarded to the appellant nos. 1, 2, 3, and 6, namely, Nand Lal Mahto, Ram Lal Mahto, Sukhari Mahto and Niras Mahto is set aside and appeal on his behalf is allowed. They are on bail. They are discharged from the liabilities of their respective bail bonds. 19. So far as appellant nos. 4 and 5, namely, Mahendra Mahto and Rajendra Mahto are concerned, the conviction against them is altered from section 302 IPC to 304 Part II and 304 Part I of the Indian Penal Code respectively and their sentences are reduced to the period undergone by them in custody. Accordingly, the appeal on behalf of appellant nos. 4 and 5 is dismissed with modification in conviction and sentence. They are reported to be in custody. They are directed to be released from custody forthwith if not wanted in any other case.