Patna High Court
Ram Bhawan Rai And Ors. vs State Of Bihar on 19 March, 1999
Equivalent citations: 1999(2)BLJR1306
Author: B.P. Singh
Bench: B.P. Singh
JUDGMENT
B.P. Singh and Ashish N. Trivedi, JJ.
1. This appeal by the appellants is directed against the judgment and order or the 2nd Additional Sessions Judge, Vaishali at Hajipur dated 27th/30th August, 1994 in Sessions Trial No. 69 of 1992 whereby the learned Additional Sessions Judge has convicted the appellants and sentenced them as stated hereinafter.
Appellant No. 1, Ram Bhawan Rai, has been found guilty of the offence under Section 302 I.P.C. and has been sentenced to undergo rigorous imprisonment for life on that count. He has also been found guilty of the offences under Sections 147 and 379, I.P.C. and has been sentenced to undergo one year rigorous imprisonment on each count. The remaining appellants have been convicted under Sections 302/149, I.P.C. and each of them has been sentenced to undergo rigorous imprisonment for life Appellant No. 2, Ram Sarekh Rai, has been convicted under Section 379, I.P.C. and has been sentenced to undergo one year rigorous imprisonment. Ram Sarekh Rai as well as remaining appellants 3 to 7 have been sentenced to undergo rigorous imprisonment for one year under Section 147, I.P.C. and rigorous imprisonment for six months under Section 323, I.P.C.
2. The case of the prosecution is that the occurrence took place between 4-5 p.m. at village Rampur on 27.2.1991 in which the informant Radha Kishun Rai (deceased) as well as Udeshi Rai (not examined) and Shiva Chandra Rai, P.W. 5, were injured. Unfortunately, Radha Kishun Rai, who is informant of this case, died on the following day on account of head injury suffered by him. It is the prosecutions case that the appellants were armed with lathis and they used the said weapon to cause injuries to the injured.
3. It is not disputed that the injuries suffered by Udeshi Rai and Shiva Chandra Rai (P.W. 5) were simple in nature. It is also not disputed that the injury which resulted in death of Radha Kishun Rai was the lathi injury inflicted on his head which resulted in fracture of the right parietal bone.
4. The fardbeyan of deceased Radha Kishuna Rai was recorded at 7.30 p.m. on 27th February, 1991 at the State Dispensary, Jurawanpur. In the said fardbeyan, it has stated by the deceased that on the date of occurrence at about 4-5 p.m., he was guardian the field of Parashuram Singh, P.W. 14. At that time he found that appellants Ram Bhawan Rai and Ram Sarekh Rai were uprooting the Masoori crop from the field of Parasuram Singh. He protested upon which the aforesaid appellants started abusing. The informant requested them not to use such words. In the meantime, the remaining appellants armed with lathis came there. Upon their arrival appellant, Mauje Rai, ordered them to assault the informant and thereafter on his order appellant, Ram Bhawan Rai hit on his head with the lathi with an intention to kill him. He fell down on account of head injury and thereafter all the appellants started assaulting him with lathis. On hulla raised by him, Shiva Chandra Rai (P.W. 5) and Udeshi Rai (not examined) intervened and tried to save him, but they were also assaulted with lathis by the appellants. On hulla being raised, Baidyanath Rai (P.W. 4), Kirishna Chandra Rai (P.W. 3) and Durga Rai (P.W. 8) came there and intervened and also witnessed the occurrence.
The said fardbeyan has been witnessed by Sakaldip Rai, P.W. 7.
5. In support of its case the prosecution has examined 15 witnesses. P.Ws. 3, 4, 5, 6 and 10 claim to be eye-witnesses while P.Ws. 8 and 9 came soon after the occurrence. P.Ws. 1, 2 and 15 are formal witnesses who have proved the first information report, inquest report etc. Dr. Anwar Alam who conducted the post-mortem examination on the dead body of the deceased has been examined as p.W. 11, while Dr. Kamal Kumar Singh has been examined as P.W. 12 since he had examined the injured persons when they were brought to the State Dispensary. Ramashish Prasad (P.W. 13) is the Investigating Officer of the case, while Parashuram Singh, P.W. 14, is the owner of the land from where the appellants are said to have uprooted the Masoori crop.
6. Counsel for the appellants submitted that the version given in the First Information Report has been supported by the account given by eyewitnesses examined at the trial. Their evidence is consistent and there is nothing much in their cross-examination to discredit the eye-witnesses examined on behalf of the prosecution. However, he drew our attention to the evidence of some of the eye-witnesses. P.W. 3, Krishna Chandra Rai stated that he was cutting grass in the field of Harihar Singh which was 8-10 laggies away from the field of Parashuram Singh. The field of Parashuram Singh was being guarded by Radha Kishun Rai (deceased). There was standing Masoori crop in that field. He saw that Ram Bhawan Rai and Ram Sarekh Rai were uprooting the Masoori crop in the field of Parashuram Singh. Radha Kishun Rai came and protested. On this, appellants, Ram Bhawan Rai and Ram Sarekh Rai started abusing him. In the meantime, the other five appellants came there armed with lathies. Appellant, Mauje Ram ordered assault whereupon Ram Bhawan hit Radha Kishun Rai on his head with iron ringed lathi. Radha Kishun Rai fell down. The brother of Radha Kishun, namely, Shiva Chandra Rai (P.W. 5) came to defend his brother but Ram Sarekh Rai assaulted him with lathi. Thereafter, Udeshi Rai (not examined) came to save him but he was also assaulted by the appellants. Radha Kishun Rai was removed to the State Dispensary at Jurawanpur where he was being treated, but he died on the following day.
7. P.W. 4, Baijnath Rai, has deposed that on the date of occurrence in the evening he was carrying grass when he saw that appellants Ram Bhawan Rai, Ram Sarekh and Binod Rai uprooting the Masoori crop of Parshuram Singh. Radha Kishun Rai protested as a result of which the appellants started an altercation. In the meantime, remaining four appellants came there armed with lathis. Mauje Ram ordered his companions to assault, whereafter the appellant Ram Bhawan gave one lathi blow to Radha Kishun Rai as a result of which he fell down. Shiva Chandra Rai (P.W. 5) who had come to save him was also given a lathi blow by Ram Sarekh Rai on his head and he also fell down. He was thereafter assaulted by fists and kicks by the other accused. When Udeshi Rai came to save them, he was also assaulted by the appellants.
8. Counsel for the appellants submitted that the evidence of the other witnesses is also on the same lines and therefore, he was not in position to contend that these witnesses were not present, and that they should be disbelieved. He, however, submitted that taking the evidence as it is, no offence is made out under Section 302 or under Section 302/149, I.P.C. To support his argument he has taken us to the medical evidence on record.
9. Dr. Anwar Alam (P.W. 11) was posted at the Sadar Hospital at Hajipur where he conducted the post-mortem examination on the dead body of Radha Kishun Rai on 1st of March, 1991. He found one ante-mortem injury on the body of the deceased which was in the nature of stitched wound 3" in length on right parietal region of scalp. On dissection, he found that there was fracture of parietal bone of skull underneath the wound. On opening the skull blood and blood, clots were present in the cranial cavity. His opinion is that the injury could have been caused by lathi with lohbanda. Time elapsed between death and post-mortem examination was assessed as within 24 hours. In his opinion, death was due to shock and haemorrhage as a result of above-mentioned injury which has sufficient to cause death in the ordinary course of nature. This witness proved the post-mortem report.
10. Dr. Kamal Kumar Singh, P.W. 12, was posted at the Jurawanpur Hospital on 27th February, 1991. He had examined the three injured persons who in the first instance were brought to the State Dispensary, Jurawanpur. On Udeshi Rai, the doctor found lacerated wound in the wave of left thumb and index finger 1" × 1/6" × 1/6" caused by hard blunt substance such as lathi. The nature of injury was simple and had been caused within 24 hours.
On the same day, he examined Shiva Chandra Rai (P.W. 5) and found two injures on his person which have been described by him as follows:
(i) Lacerated wound on the upper part of head 3" × 1/4" × 1/4" caused by hard and blunt substance such as lohbanda and lathi.
(ii) Swelling left elbow 1" × 1" caused by hard and blunt substance such as lathi.
Both the injuries were simple in nature and the age of injury was within 24 hours.
On the same day this doctor had also examined Radha Kishun Rai and had found lacerated stitched wound 3" × 1/2" bone deep on the upper part of skull. Fracture of skull bone was seen under the above injury which was caused by hard and blunt substance and was grievous in nature. He also noticed a swelling on the right deltoid region 1" × 1" caused by hard and blunt substance such as lathi. Though this witness has stated that he examined Radha Kishun Rai at about 9 a.m. on the 27th of February, 1991, there appears to be some confusion as to the date, because apparently the injury had been stitched by some other doctor and not by this doctor. He might have, therefore, examined him on the following day. That, however, does not make much difference, because we have also perused the post-mortem report which describes the injury found on the person of the deceased.
11. From the evidence on record it is, therefore, apparent that Radha Kishun Rai had really suffered on injury on his head. Udeshi Rai had also suffered one simple injury between his left thumb and index finger. P.W. 5, Shiva Chandra Rai had suffered two simple injuries caused by hard and blunt substance, one on the head and the other on his left elbow. This means that five injuries were inflicted on three injured persons including the deceased. The number and nature of injuries does not show that the injured were mercilessly assaulted, or that there was indiscriminate use of lathis by the appellants, though it is established that at least 4-5 injuries were caused to the three injured persons. Radha Kishun Rai had suffered one injury on his head and that is attributed to Ram Bhawan Rai, Shiva Chandra Rai, P.W. 5 also received one lathi injury on his head which is attributed to Ram Sarekh Rai. So far as Udeshi Rai is concerned, there is a general statement that all the appellants assaulted him, but this is not borne out from the record as he had suffered only one simple injury between the thumb and index finger.
12. Counsel for the appellants submitted that the occurrence was not premeditated and the upon protest raised by Radha Kishun Rai there was exchange of abuses which attracted appellants 3 to 7 to the place of occurrence. He, therefore, submitted that the occurrence took place without pre-meditation in a sudden fight, in the heat of passion, upon a sudden quarrel. The number and nature of injuries also establishes that the appellants did not take undue advantage nor did they act in a cruel or unusual manner. It is unfortunate that one injury caused on the head of Radha Kishun Rai resulted in his death on the following day. In these circumstances, he submitted that there was no intention to cause any bodily injury which was sufficient in the ordinary course of nature to cause death. At best, it can be said that Ram Bhawan Rai knew that he was causing a bodily injury as was likely to cause death, but without any intention to cause death. He, therefore, submitted that in this case, at best Ram Bhawan Rai may be held guilty under Section 304(11) of the, I.P.C.
13. Counsel for the State submitted that so far as Ram Bhawan Rai is concerned, even if in the facts and circumstances of the case, one may not find that the assaulted Radha Kishun Rai with an intention to cause his death, he certainly assaulted Radha Kishun Rai on his head with an intention to causing such bodily injury as was likely to cause death. He, therefore, submitted that the case of Ram Bhawan Rai was squarely covered by Section 300, I.P.C. secondly.
14. Counsel for the appellants, however, submitted that even if the argument of the State is accepted, having regard to the facts and circumstances of the case, the case of appellant Ram Bhawan Rai is covered under Exception (4) to Section 300, I.P.C.
15. In our view, Counsel for the appellants is right in submitting that there was no intention on the part of the appellant, Ram Bhawan Rai or any of the appellants to cause the death of Radha Kishun Rai. On the issue of uprooting Masoori crop a quarrel started preceded by exchange of abuses which attracted appellants 3 to 7 to the place of occurrence, who rushed to the place of occurrence apprehending danger to Ram Bhawan Rai and Ram Sarekh Rai. It appears that they acted without premeditation in a sudden fight, in the heat of passion, upon a sudden quarrel. Only one injury was caused to Radha Kishun Rai, but unfortunately that proved fatal. It appears that except Ram Bhawan Rai, no one else assaulted Radha Kishun Rai, and even Ram Bhawan Rai assaulted him only once on his head. In these circumstances, we are persuaded to hold that the offence proved against Ram Bhawan Rai is not under Section 302, I.P.C. but under Section 304(11), I.P.C.
16. The next question is what offences are made out against remaining appellants. Counsel for the State fairly submitted that there was no intention to kill Radha Kishun Rai nor was there any such common object. It also appears from the evidence on record that none of the other appellants assaulted Radha Kishun Rai, but some of them certainly used their lathis to cause simple injures to Udesi Rai and Shiva Chandra Rai, P.W. 5. It does not appear to us that the common object of the unlawful assembly was to cause the death of Radha Kishun or even to cause such bodily injury as was likely to cause his death. At best it can be said that appellants 2 to 7 acted with a view to merely assault Udeshi Ram and Shiva Chandra Rai, P.W. 5. They have, infact, inflicted only simple injuries numbering three, one on Udeshi Rai and two on Shiva Chandra Rai, P.W. 5. It may be than some of the appellants may not have assaulted them at all, but having regard to the facts and circumstances of the case, it must be held that there was at least a common object of the unlawful assembly to cause simple injures to Udeshi Rai and Shiva Chandra Rai, P.W. 5. Appellants 3 to 7 were not in the field of Parshuram Singh when the incident originated. They came running when they heard the exchange of abuses and the altercation which followed between Radha Kishun Rai and the appellants 1 and 2. It cannot be said that they had come to the place of occurrence with a common object to cause anyone's death. However, having come to the field of Parshuram Singh, once they started assaulting Udeshi Rai and Shiva Chandra Rai, P.W. 5, there is no doubt that they shared the common object of causing hurt to the witnesses, but in doing so, they caused only simple injuries.
17. In these circumstances, we hold that the appellants did not share any common unlawful object of committing the murder of Radha Kishun Rai. At best they shared the common unlawful object of causing hurt to Radha Kishun and the prosecution witnesses. In doing so Ram Bhawan Rai gave one blow on the head of Radha Kishun Rai which resulted in his death, even though he did not intend to cause his death. As we have held earlier he committed the offence punishable under Section 304(11), I.P.C. Looking to the manner in which the remaining appellants acted and the injuries caused by them, we have no doubt that they did not share any unlawful object to cause any injury which was likely to cause death. They have, however, been convicted and sentenced under Sections 302/149, I.P.C. Apart from Section 302/ 149, I.P.C. Ram Sarekh Rai has also been found guilty of the offence punishable under Section 379, I.P.C. as he along with Ram Bhawan Rai were uprooting the Masoori crop of Parshuram Singh.
18. The question next arises as to what sentence should be imposed. The occurrence is said to have taken place in the month of February of the year 1991. It is stated that appellant Ram Bhawan Rai has remained in custody for a considerable period. However, having regard to the nature of injury caused by him, we sentence him to undergo rigorous imprisonment for a period of seven years under Section 304 (II), I.P.C. We uphold his conviction and sentence under Section 147, I.P.C. For the offence under Section 379, I.P.C. he has been sentenced to undergo one year rigorous imprisonment which term he has already served out and, therefore, no purpose will be served by modifying the same. Appellants 2 to 7 have remained in custody for about a month. Having regard to the fact that we have found them guilty under Sections 323/149, I.P.C. we feel that at this stage no purpose will be served by sending them to jail. We, therefore, reduce their sentence under Section 323 read with Section 149, I.P.C. to the period already undergone by them, but impose upon them a fine of Rs. 1,500/- each. After realisation of the fine, the same shall be given to the wife of Radha Kishun Rai who is reported to be alive. In default of payment of fine, these appellants shall undergo three months R.I. each. Their conviction under Section 302/149 is set aside. The conviction of the appellants 2 to 7 under Section 147 is upheld, but their sentence is reduced to the period already undergone. Similarly, conviction of Ram Sarekh Rai under Section 379, I.P.C. is upheld but the sentence is reduced to the period already undergone.
19. Appellant No. 1 is in jail. The Jail authority shall calculate the period of sentence already undergone by the said appellant and if he has served out the sentence of 7 years and is not required to be kept in custody in any other case, he hall be released forthwith. The bail bonds of the remaining appellants is discharged.
20. This appeal is partly allowed accordingly.