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2015 DIGILAW 1048 (PAT)

Nawal Kishore Sah v. State of Bihar

2015-08-17

JITENDRA MOHAN SHARMA, V.N.SINHA

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JUDGMENT : V.N. SINHA, J. Both these appeals arise out of judgment and order dated 23.11.1992 passed by 4th Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 126 of 1989 whereunder all appellants no. 1 to 21 in Cr. Appeal (DB) No. 459 of 1992 have been convicted for the offence under Section 302/149 of the penal code and appellant no. 1 Nawal Kishore Sah has further been convicted for the offence under Section 307 of the penal code and sentenced to suffer rigorous imprisonment for life and six years under the two counts. During the pendency of Cr. Appeal (DB) No. 459 of 1992, appellants no. 3, 6, 9, 15 and 19 have left for their heavenly abode which fact has also been confirmed by the Superintendent of Police, West Champaran, Bettiah as noted under order no. 6 dated 26.02.2015 passed in the instant appeal. Under the circumstances, appeal filed on behalf of appellants no. 3, 6, 9, 15 and 19 has abated under order dated 26.02.2015. The sole appellant Sachindra Sah in Cr. Appeal (DB) No. 09 of 1993 has been convicted for the offence under Section 302 of the penal code and also directed to suffer rigorous imprisonment for life. 2. Prosecution story as set out in the fardbeyan of Jitan Mishra (PW 10) recorded by D. S. Singh, Officer In-charge Sathi Police Station in the courtyard of Veyas Mishra of village Semri on 04.09.1988 at 20:00 hours is that in the same evening around 6:45 pm he had gone to attend call of nature in the northern side of the village near canal, at the same time, Sadhu Sah was returning from Sathi Market, while returning he abused Brahmins of village Semri Mishri Tola loudly so that others moving along with him may hear. The informant also heard the abuse, protested loudly infuriating Sadhu Sah. To support Sadhu Sah his son Ram Pravesh Sah and one Ramashray Sah also came armed with lathi, both assaulted the informant who came running to the Sahan of Veyas Mishra in the village and while he was narrating about the abuse, assault to Narayan Mishra son of Nathuni Mishra and Haridwar Mishra son of Devmuni Mishra and others also present in the Sahan, Sadhu Sah and 22 other accused persons named in the fardbeyan came to the Sahan of Veyas Mishra variously armed with Spear, Farsa, Lathi etc. whereafter Sadhu Sah abused the informant, others present and asked his men to kill the informant and other pandits present in the Sahan. Sachindra Sah pierced spear in the chest of Narayan Mishra who ran towards the house of Bada Babu Mishra. Nawal Kishore Sah assaulted Haridwar Mishra with Farsa on his neck which caused injury on his forehead. Nandrani Devi wife of Haridwar Mishra and Sunaina Devi wife of informant intervened to protect Haridwar Mishra, Ramchandra Sah, Rajendra Sah assaulted Nandrani Devi, Sunaina Devi with lathi respectively. Prabhu Sah, Shambhu Sah and Janak Sah entered into the house of Veyas Mishra and took the ornaments box of Rinku Devi daughter of Vyash Mishra. The accused persons also resorted brick bats preventing the witnesses to approach the injured. Brick bats caused damage to the tile roof of Veyas Mishra. Alarm raised that Narayan Mishra, Haridwar Mishra both have been killed. The accused persons thereafter fled away. The occurrence has been witnessed by Bada Babu Mishra, Damodar Mishra, Rinku Devi and others. In the fardbeyan the informant has further claimed that the occurrence perpetuated because he is a witness in favour of Damodar Mishra and Daroga Mishra in a case between them and Sadhu Sah. It is further stated that Narayan Mishra succumbed to the injury while being carried to the hospital. Haridwar Mishra is being treated in the hospital. The contents of the fardbeyan was read over to the informant and he put his signature over the same. On the basis of the fardbeyan Sathi P.S. Case No. 0031 of 1988 was registered on 04.09.1988 at 23:00 hours and First Information Report dispatched to court of Chief Judicial Magistrate, Bettiah through special messenger which was perused by Chief Judicial Magistrate on 05.09.1988. Inquest on the dead body of Narayan Mishra was conducted in the Government Hospital, Sathi on 04.09.1988 at 22:00 hours in presence of Damodar Mishra and Surajbhan Mishra. From the inquest report it is evident that Narayan Mihsra died because of spear injury. After inquest proceeding completed on the dead body of Narayan Mishra, the same was sent to M.J.K., Hospital, Bettiah for post mortem which was conducted on 05.09.1988 at 10:15 am. Post mortem report also confirmed that Narayan Mishra died on account of incised wound of 1”x1/2”x chest cavity deep on left lower side of the chest in its front. After inquest proceeding completed on the dead body of Narayan Mishra, the same was sent to M.J.K., Hospital, Bettiah for post mortem which was conducted on 05.09.1988 at 10:15 am. Post mortem report also confirmed that Narayan Mishra died on account of incised wound of 1”x1/2”x chest cavity deep on left lower side of the chest in its front. The injury lies 4” below the left nipple which was ante mortem in nature and caused by sharp penetrating substance. Death of Narayan Mishra was caused because of deep internal hemorrhage and shock as a result of the aforesaid injury. Daya Shankar Singh Officer Incharge Sathi Police Station also recoded the further statement of the informant and police statement of the witnesses. The Officer Incharge having found the prosecution case true in the light of fardbeyan statement, inquest report, post mortem report and police statement of witnesses submitted charge-sheet against all 23 accused persons. Cognizance was taken and after supply of police paper the case was committed to the court of Sessions. The Sessions court framed charges against 23 accused persons under order dated 27.05.1989 to which the accused persons pleaded not guilty and claimed to be tried. 3. In support of the charge, prosecution examined as many as 12 witnesses. PW 1 Bada Babu Mishra is the co-villager in whose house Narayan Mishra came running after being inflicted with spear blow by Sachindra Sah. PW 2 Damodar Mishra is also named in the fardbeyan as the one in whose favour the informant had chosen to depose in the litigation between Damodar Mishra and Sadhu Sah. PW 3 Veyas Mishra is also a co-villager in whose Sahan the informant came running from the bank of canal where he had gone to ease out and was assaulted by Ram Pravesh Sah and Ramashray Sah with lathi. PW 5 Haridwar Mishra is the injured eye witness said to have been assaulted by Nawal Kishore Sah with Farsa on his eyes. PW 6 Sunaina Devi is the wife informant and is said to have intervened during the occurrence and was assaulted with lathi by Rajednra Sah. PW 7 Suggi Devi is the wife of deceased Narayan Mishra. PW 8 Rinku Devi daughter of PW 3 Veyas Mishra and her ornaments box is said to have been removed by Prabhu Sah, Shambhu Sah and Janak Sah. PW 9 Dr. PW 7 Suggi Devi is the wife of deceased Narayan Mishra. PW 8 Rinku Devi daughter of PW 3 Veyas Mishra and her ornaments box is said to have been removed by Prabhu Sah, Shambhu Sah and Janak Sah. PW 9 Dr. Tanteshwar Prasad Chaudhary is the Civil Assistant Surgeon posted in Sathi Hospital who examined the injured Haridwar Mishra and informant Jitan Mishra in the evening of the occurrence. PW 10 Jitan Mishra is the informant. PW 11 Dr. Madsudan Shukla is the Civil Assistant Surgeon posted in M.J.K. Hospital, Bettiah who conducted post mortem on the dead body of Narayan Mishra. PW 12 Daya Shankar Singh, Officer Incharge Sathi Police Station not only scribed the fardbeyan but also investigated the case and submitted charge-sheet. 4. Learned counsel for the appellants assailed the judgment of conviction and sentence as, according to him, prosecution version as set out in the fardbeyan of Jitan Mishra (Ext. 7) is full of embellishment and the version recorded therein that initially informant Jitan Mishra was assaulted by Ram Pravesh Sah and Ramashray Sah in the northern side of the village near the bank of the canal where he had gone to attend call of nature, then the informant came running to the Sahan of Veyas Mishra and while he was describing the assault on his person including the fact that Sadhu Sah was abusing the Brahmins of Mishri Tola village Semri to Narayan Mishra and Haridwar Mishra the accused persons led by Sadhu Sah came to the Sahan of Veyas Mishra and as per the instructions of Sadhu Sah, accused No. 16 Sachindra Sah pierced spear in the chest of Narayan Mishra who ran towards the house of Bada Babu Mishra and Nawal Kishore Sah assaulted Haridwar Mishra with Farsa inflicting injury on his eyes, two ladies of the family Sunaina Devi and Nandrani Devi intervened and were also assaulted by Rajendra Sah and Ramchandra Sah with lathi, meanwhile Prabhu Sah, Shambhu Sah and Janak Sah entered the house of Veyas Mishra and removed the ornaments box of Rinku Devi does not appear to be correct as the medical evidence of PW 9 Dr. Tanteshwar Prasad Chaudhary does not support the assault on the person of informant Jitan Mishra (PW 10) as also Haridwar Mishra (PW 5). Tanteshwar Prasad Chaudhary does not support the assault on the person of informant Jitan Mishra (PW 10) as also Haridwar Mishra (PW 5). In this connection, learned counsel referred to the evidence of PW 9 (paragraph 1) and submitted that Haridwar Mishra (PW 5) suffered injury on the root of his nose and not on his eye as has been claimed by him. He further referred to the evidence of Dr. Tanteshwar Prasad Chaudhary (PW 9) and submitted that informant Jitan Mishra (PW 10) suffered bruise and swelling on the left shoulder which may have been caused by lathi but the nature of injury found by the doctor being simple, it cannot be definitely said that the injuries on the person of the informant have been caused in the present occurrence. Learned counsel further submitted that it is the definite evidence of Haridwar Mishra (PW 5) that he has sustained Farsa injury on his eye but there being no such injury found by the doctor on the eye of Haridwar Mishra (PW 5) and the opinion of doctor PW 9 about the nature of injury being kept reserved, in absence of any further report or objective material his further evidence describing the same injury as grievous because PW 5 chose to stay in the hospital for long cannot be accepted as long stay of the injured patient in the hospital can be on account of various reasons and opinion about the nature of injury cannot be formed on the basis of long stay of the injured patient in the hospital. Under the circumstances, doctor PW 9 having not based his opinion about the nature of injury found on the root of the nose of Haridwar Mishra grievous, on objective basis conviction of Nawal Kishore Sah is required to be converted from Section 307 to 324 of the penal code and the sentence of six years awarded under the said count is also reduced to the period undergone by him. 5. Now we proceed to consider the challenge made by learned counsel to the conviction of appellants of Cr. Appeal (DB) No. 456 of 1992 under Sections 302/149 of the penal code, said conviction has been recorded as they have been found present in the Sahan of Veyas Mishra with arms lathi when assault on the persons of Narayan Mishra was made by Sachindra Sah. Appeal (DB) No. 456 of 1992 under Sections 302/149 of the penal code, said conviction has been recorded as they have been found present in the Sahan of Veyas Mishra with arms lathi when assault on the persons of Narayan Mishra was made by Sachindra Sah. These appellants having not been attributed or found to have committed any overt act in connection with assault on the person of Narayan Mishra and only because they were found to be present in the Sahan may be with arms cannot be held to be the member of unlawful assembly sharing common object to assault Narayan Mishra as assault on his person is the exclusive act of Sachindra Sah appellant in Cr. Appeal (DB) No. 9 of 1993. The conviction of appellants of Cr. Appeal (DB) No. 459 of 1992 under Section 302/149 of the penal code is required to be set aside and they deserve grant of benefit of doubt under the said charge. 6. Learned counsel for the appellant Sachindra Sah in Cr. Appeal (DB) No. 9 of 1993 submitted with reference to the evidence of PW 11 Dr. Madhusudan Shukla in paragraph 1 that Narayan Mishra suffered incised wound 1”x1/2”x chest cavity deep 4” below the left nipple, conviction of Sachidnra Sah under Section 302 of the penal code may not be sustained as he did not repeat the blow, there is enmity between the members of prosecution party and appellant Sadhu Sah in which Damodar Mishra and Daroga Mishra were helping the members of the prosecution party by becoming witness in their favour. Appellant Sachindra Sah inflicted one blow to Narayan Mishra because he lend his ears to Jitan Mishra and allowed him to narrate the incident of hurling abuse to the Brahmins of Simri Mishri tola and assault on his person. In the facts and circumstances of the case the offence made out against the appellant Sachindra Sah is covered by exception 4 to Section 300 of the Indian Penal Code and is required to be altered from Section 302 of the penal code to one under Section 304 Part II of the penal code. In the facts and circumstances of the case the offence made out against the appellant Sachindra Sah is covered by exception 4 to Section 300 of the Indian Penal Code and is required to be altered from Section 302 of the penal code to one under Section 304 Part II of the penal code. In support of aforesaid submission learned counsel for the appellants placed reliance on the judgment of the Supreme Court in the case of K. Ramakrishnan Unnitham v. State of Kerala reported in 1999 CRI.L. J. 2101 paragraph 6 and a judgment of this Court in the case of Binod Chaudhary vs. The State of Bihar reported in 2007 (2) PLJR Page 411 paragraph 9 to 12. 7. We have carefully gone through both the aforesaid judgments/case law. In the case of K. Ramakrishnan Unnitham (supra) the convict assaulted the deceased with knife and had given a single blow in the stomach of the deceased leading to protruding of his intestine. The Supreme Court taking note of the weapon used knife and single blow inflicted by the convict, modified the conviction from Section 302 to 304 part II of the penal code and sentence to the period undergone i.e. 4 years. In the case of Binod Kumar (supra) this Court taking into account that the deceased was assaulted by the convict with bhala which is a lethal weapon and the convict had remained in jail custody for more than 9 years converted his conviction from Section 302 to 304 part I of the penal code and sentenced him to period undergone. 8. Having appreciated the aforesaid submissions, we have given our anxious consideration to the case of the appellant Sachindra Sah and found him to have assaulted deceased Narayan Mishra with spear, may be one blow, we are of the view that his conviction is required to be modified from Section 302 to one under Section 304 Part I of the penal code as, according to us, his case is covered by exception 4 of Section 300 of the Indian Penal Code. 9. Having converted the conviction of appellant Sachindra Sah, we modify his sentence as well and award him rigorous imprisonment for 8 (eight) years. In view of our discussion above, in the result, both the appeals are dismissed with modification in conviction and sentence. Appellants of Cr. 9. Having converted the conviction of appellant Sachindra Sah, we modify his sentence as well and award him rigorous imprisonment for 8 (eight) years. In view of our discussion above, in the result, both the appeals are dismissed with modification in conviction and sentence. Appellants of Cr. Appeal (DB) No. 459 of 1992 are discharged from the liabilities of their bail bonds. The bail bond of sole appellant Sachindra Sah in Cr. Appeal (DB) No. 9 of 1993 is cancelled and he is directed to surrender in the court below forthwith to serve out the remaining sentence. Appeals dismissed.