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2013 DIGILAW 980 (PAT)

Paras Sah v. State of Bihar

2013-08-12

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

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Judgment Cr. Appeal No. 119 of 1991 (D.B.) and Cr. Appeal No. 58 of 1992 (D.B.) have been taken together because both have arisen out of common judgment. Both the appeals are being heard and disposed of by this common judgment. 2. Appellant Paras Sah and appellant Dewaki Sah have been convicted and sentenced on 19.3.1991 in Sessions Trial No. 63 of 1990 by learned 4th Additional Sessions Judge, Saran. Appellant Dewaki Sah was convicted under Section 302 IPC and was sentenced to rigorous imprisonment for life, whereas, the appellant Paras Sah was convicted under Section 304/34 IPC and was sentenced to undergo rigorous imprisonment for four years by order dated 21.3.1991. 3. On the basis of fardbeyan (Ext. 4) of Mangal Sah (P.W.6) given at Sadar Hospital, Chapra in Middle Surgical Ward at 4.45 P.M. on 7.9.1989 with regard to an occurrence of 6.9.1989 at 8 p.m., formal FIR (Ext. 3) of Garkha P.S. Case No. 175 of 1989 under Section 302/34 IPC was registered, wherein, he has stated before the Officer-in-Charge that on the preceding day i.e. 6.9.1989 at 8 p.m. his brother Maheshwari Sah (deceased) was taking dinner in front of his house. The informant was sitting in the vicinity. Dewaki Sah (appellant) and Suresh Sah (absconder) came out from the house and started hurling abuses to the informant’s brother Maheshwari Sah which was retorted to. In the meantime, neighbour Paras Sah (appellant) came. Suresh Sah and Paras Sah caught hold the hand of the Dewaki Sah and Dewaki Sah pierced a dagger on the right abdomen of Maheshwari Sah. Blood oozing out. In the meantime, Harendra Sah (P.W. 3) and Dhaneshwar Sah (P.W. 4) came and witnessed the occurrence. All the three assailants escaped towards north side. The informant and Harendra Sah (P.W. 3), Dhaneshwar Sah (P.W. 4) carried Maheshwari Sah on a hired jeep to Chapra Sadar hospital. Maheshwari Sah lost consciousness in the way and his unconsciousness remained till his death. During treatment Maheshwari Sah succumbed to the injuries at 3.30 pm. on 7.9.1989. The cause of occurrence is that Dewaki Sah and Suresh Sah were frequently abusing Maheshwari which was being protested and on account of that the assault was made. The occurrence was witnessed in electric light. The fardbeyan was witnessed by Harendra Kumar Sah (P.W. 3). 4. During treatment Maheshwari Sah succumbed to the injuries at 3.30 pm. on 7.9.1989. The cause of occurrence is that Dewaki Sah and Suresh Sah were frequently abusing Maheshwari which was being protested and on account of that the assault was made. The occurrence was witnessed in electric light. The fardbeyan was witnessed by Harendra Kumar Sah (P.W. 3). 4. The case was investigated into and it was found true, so the charge-sheet was submitted. Cognizance was taken. The case was triable by the court of Sessions, so the record of the case was committed, where the charge under Section 302/34 IPC was explained to both the accused persons. They pleaded innocence, so the trial proceeded. 5. The defence of the accused persons was of false implication because of enmity from before. 6. Before the trial court, the prosecution examined Ashok Kumar Singh as P.W. 1, Agni Jyoti Singh as P.W. 2, Harendra Sah attesting witness as P.W. 3, Dhaneshwar Sah as P.W. 4, Budhiya Devi as P.W. 5, Mangal Sah as P.W. 6, Dr. Raj Balli Singh as P.W. 7 and Anand Prakash Gupta as P.W. 8. 7. The defence has examined only witness, namely, Ramjee Singh. 8. The inquest report and the post-mortem report had been brought on record through Ext. 5 and Ext. 2 respectively. Learned trial court after considering the evidence on record and the submissions of the parties came to the opinion that the prosecution has succeeded in proving the charge against the accused persons beyond shadow of all reasonable doubts. 9. Now we have to see as to whether the prosecution has been able to prove the charge against the accused-appellants beyond shadow of all reasonable doubts or not. 10. The prosecution has relied upon testimony of all the four eye witnesses namely, P.W. 3, P.W. 4, P.W. 5 and P.W. 6. P.W. 2 has been tendered by the prosecution. P.W. 8 has held the post-mortem examination on the dead body of Maheshwari Sah. P.W. 1 has been declared hostile. 11. Before taking up the evidence of eye witnesses it would be appropriate to see as to whether Maheshwari Sah had culpable homicide or not ? 12. P.W. 2 has been tendered by the prosecution. P.W. 8 has held the post-mortem examination on the dead body of Maheshwari Sah. P.W. 1 has been declared hostile. 11. Before taking up the evidence of eye witnesses it would be appropriate to see as to whether Maheshwari Sah had culpable homicide or not ? 12. The post-mortem on the dead body of Maheshwari Sah was conducted by P.W. 7, who was posted as Civil Assistant Surgeon at Sadar Hospital Chapra on 8.9.1989 at 8.30 a.m. The doctor found one stitched wound about 3” x 1/8” x intestine deep, exhibiting two cuts, each of about one inch in length in the intestine loop, caused by a penetrating weapon. The wound was in the right portion of the stomach. Another injury at para cardium was there and it was incised wound of size 6” x 1/8” intestine deep. The death was on account of injury no. 1 and the injury no. 2 was outcome of the stitching. The death was due to shock and haemorrhage resulting from injury no. 1. Time elapsed since death was within 20 hours. The post mortem report (Ext. 2) indicates that the death was within 20 hours. As per initial version of the FIR which was subsequently affirmed by the witnesses, injury was caused in the night at 8 p.m. on 6.9.1989. Soon thereafter the injured Maheshwari Sah died. So the prosecution has succeeded in proving that the death of Maheshwari Sah was within 20 hours of the postmortem examination. The doctor has been cross-examined either with regard to manner of assault or with regard to time of death. Therefore the version of the doctor that Maheshwari Sah died on account of injury no. 1 caused by one sharp cutting weapon was established. 13. Once the prosecution has been able to prove that the death of Maheshwari Sah was not natural, rather it was caused due to attack by sharp cutting weapon then the prosecution was required to establish that it was the conduct of the accused and accused person alone and not of others. For this the prosecution has examined four eye witnesses. P.W. 3 is not only one of the attesting witnesses rather he is the son of the deceased. P.W. 5 is the wife of the deceased. For this the prosecution has examined four eye witnesses. P.W. 3 is not only one of the attesting witnesses rather he is the son of the deceased. P.W. 5 is the wife of the deceased. The informant has described the occurrence which was of about 8 p.m. The informant at that time was just in front of his house along with Harendra Sah (P.W. 3). The informant’s brother Maheshwari Sah (deceased) was taking meal on a cot in the sahan of the house. His wife (P.W. 5) was feeding him. Dewaki Sah (appellant) and Suresh Sah started abusing Maheshwari Sah which was retorted to. In the meanwhile, Paras Sah came. Suresh Sah and Paras Sah caught hold of Maheshwari Sah and dragged him towards east. Dewaki Sah pierced a dagger blow in the right side of abdomen of Maheshwari. The impact of injury led Maheshwari Sah to fell down. Entire occurrence was witnessed under the electric bulb which was lighting at the relevant time. Maheshwari Sah on being injured was carried to hospital but he succumbed to his injuries. After death fard beyan was given which led to the registration of the case. Inquest report was prepared and the post-mortem on the dead body of the deceased was conducted. Statement of informant was again taken by the Investigating Officer in which he reiterated the version which he had given in the fardbeyan and he remained consistent that in the night Maheshwari Sah was being abused filthily by Dewaki Sah and Suresh Sah. At that very time Paras Sah came who assisted Suresh Sah in catching hold of Maheshwari Sah and in that posture Dewaki Sah pierced dagger blow which proved fatal. This version is supported in entirety by P.Ws. 3, 4 and 5 who are natural witness and whose attendance at their house can be well perceived. They are not chance witnesses rather they are inmates of the house and their presence in the night can be fully perceived. 14. The defence has tried to suggest that identification was difficult as there was no source of light. It is relevant to note that all the four eye witnesses have denied the suggestion of the defence and stated that there was light and the light was enough which assisted them to identify the real culprits. 15. 14. The defence has tried to suggest that identification was difficult as there was no source of light. It is relevant to note that all the four eye witnesses have denied the suggestion of the defence and stated that there was light and the light was enough which assisted them to identify the real culprits. 15. It has been argued by learned Amicus Curiae that the Investigating Officer could not find electric bulb as there was no mention in the case diary so it has been submitted that interested witnesses was coined up. This version has been coined with a view to fill up the lacuna in the prosecution case. In fact there was no light and identification of the accused was not possible. Maheshwari Sah was killed by an stranger and due to enmity the accused persons were framed in. 16. We have analyzed the entire evidence of the witnesses who were all through constant. Investigating Officer has not noted about the presence of light but accused persons and witnesses are of one family. The prosecution witnesses, namely, informant and his family members are of the same stock as that of Dewaki Sah. They are the members of common family. Paras Sah is not a stranger because he is a neighbour. The villagers are tuned to work in the night and their eye sight have settled to work in scanty light. They are away from glaze and from centuries and centuries they have built up themselves to identify their near and dear even in scanty light. They easily identify their family members and close neighbour even at midnight without any light. Without taking this extreme view, it would be relevant to mention here that the occurrence is of 8 pm. and at that time some lights are always available in almost all the houses. There is consistent version of the prosecution witnesses that electric bulb was giving light at the relevant time. No doubt the Investigating Officer has not mentioned that an electric bulb was there, but he found presence of electric wire at the place of occurrence. This mention of the Investigating Officer, regarding presence of electric wire fortifies the evidence of witnesses, that it was in fact light and no suggestion has been given to any of the witnesses which could create any doubt regarding non-availability of light at the time of occurrence. This mention of the Investigating Officer, regarding presence of electric wire fortifies the evidence of witnesses, that it was in fact light and no suggestion has been given to any of the witnesses which could create any doubt regarding non-availability of light at the time of occurrence. The case of prosecution that Maheshwari Sah was stabbed to his death has been well established. All the witnesses have constantly stated that it was the conduct of Maheshwari Sah alone. The charge that Maheshwari Sah was done away due to stabbing of Dewaki Sah is well established. 17. So far the conviction of Paras Sah is concerned, it has come in evidence that Paras Sah has not caused any attack which led to death of Maheshwari Sah. Some witnesses have stated that Paras Sah also caught Maheshwari Sah. Though P.W. 1 has been declared hostile but the prosecution has suggested that he has stated before the Investigating Officer that in fact Paras Sah was called out later on and after his arrival he bandaged the injuries of Maheshwari Sah. That evidence has come in para 3 of P.W. 1. Attention of Investigating Officer was drawn up and he has also stated that in para 7 of his evidence that Paras came there later and he has bandaged the cut portion of Maheshwari Sah. Therefore, two versions have come with regard to the role of Paras Sah. One version is that he was catching Maheshwari and in that very posture Maheshwari was stabbed. Herein there is no evidence that Paras Sah was aware that in that very posture he would be likely to be stabbed by Dewaki Sah. Therefore, it would be difficult to infer that he had no knowledge or intention that his such act would invite attack of Dewaki Sah. Not only that another version has come that Paras Sah came later on and bandaged the injuries. If both versions are analyzed then also it would be difficult to say that Paras Sah had intention or knowledge that his such act would cause death of Maheshwari Sah. Therefore his case comes on different footing as the case and evidence against Dewaki Sah. The case of both stands apart on the basis of evidence adduced by the prosecution. Paras Sah has been convicted not under Section 307 IPC rather under Section 302/34 IPC. Therefore his case comes on different footing as the case and evidence against Dewaki Sah. The case of both stands apart on the basis of evidence adduced by the prosecution. Paras Sah has been convicted not under Section 307 IPC rather under Section 302/34 IPC. But after considering the evidence we are not in a position to accept the evidence that Paras Sah had any knowledge or intention that his such act would invite Dewaki Sah to give fatal blow. Therefore, the case of Paras Sah is completely on different footing. In that view of the matter, it would be difficult to hold that Paras Sah has caused any overact which led to death of Maheshwari Sah. So Paras Sah cannot be held guilty and benefit of doubt should be given to him. 18. Considering the evidence and hearing the learned counsels, we are of the view that prosecution has not been able to prove charge against the appellant Paras Sah beyond shadow of all reasonable doubts. He is held not guilty and acquitted from the charge. Paras Sah is on bail, hence he is discharged from the liability of his bail bonds. 19. So far the evidence against Dewaki Sah is concerned, it is held that the prosecution has succeeded in proving the charge that he has stabbed Maheshwari Sah which ultimately caused to his death. Hence, his conviction under Section 302 IPC is upheld. As Dewaki Sah is on bail, his bail bonds are cancelled and he is directed to surrender before the court below to serve out the remaining part of the sentence. The trial court is directed to take Dewaki Sah in custody for undergoing remaining part of his sentence. 20. Jail Appeal on behalf of Dewaki Sah (Criminal Appeal (DB) No. 58 of 1992) is dismissed, whereas, Criminal Appeal (D.B.) No. 119 of 1991 is allowed. 21. Let a copy of the first and last page of the judgment be handed over to the learned Amicus Curiae Dr. Shobha Chaubey, Advocate who has assisted the Court satisfactorily and she will get the prescribed fees from the High Court Legal Services Committee, Patna. Appeal allowed in Criminal Appeal No. 119 of 1991. Appeal dismissed in Criminal Appeal No. 58 of 1992.