Patna High Court
Gauri Rai And Ors vs State Of Bihar on 29 June, 2017
Author: Rakesh Kumar
Bench: Rakesh Kumar, Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No. 371 of 1993
Arising Out of PS.Case No. 56 - Year- 1991 Thana - Patori Mufassil District- Samastipur
===========================================================
1. Gauri Rai
2. Heman Rai
3. Laxman Rai
4. Birjee Rai
5. Dulli Rai
6. Gena Rai.
All sons of Late Dhanu Rai, residents of village Dhamaun Mahdeopatti,
P.S. Patori, District - Samastipur.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
===========================================================
Appearance :
For the Appellant/s : Mr. Avanindra Kumar Jha, Amicus Curiae
For the Respondent/s : Mr. Ajay Mishra, A.P.P.
===========================================================
CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date: 29-06-2017
The present appeal was preferred against judgment of
conviction and sentence dated 28th July, 1993 passed in Sessions
Trial No. 103 of 1992/21 of 1992 by Sri Chakradhar Rai, learned 1st
Additional Sessions Judge, Samastipur (hereinafter referred to as
'Addl. Sessions Judge'). By the said judgment, all the six appellants
namely Gauri Rai (appellant no. 1), Heman Rai (appellant no. 2),
Laxman Rai (appellant no. 3), Birjee Rai (appellant no. 4), Dulli Rai
(appellant no. 5) and Gena Rai (appellant no. 6) were held guilty for
offence under Sections 302/34, 452 and 323 of the Indian Penal
Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017
2/21
Code (hereinafter referred to as 'I.P.C.'). The appellant nos. 4 & 5
were further held guilty for offence under Section 148 of the I.P.C.,
whereas, appellant no. 6 (Gena Rai), appellant no. 1 (Gauri Rai),
appellant no. 2 (Heman Rai) and appellant no. 3 (Laxman Rai) were
further held guilty for offence under Section 147 of the I.P.C. All the
appellants were sentenced to undergo rigorous imprisonment for
life for offence under Sections 302/34 of the I.P.C., 7 years rigorous
imprisonment for offence under Section 452 of the I.P.C. and one
year rigorous imprisonment for offence under Section 323 of the
I.P.C. The appellant no. 4 and 5 Birjee Rai and Dulli Rai respectively
were further sentenced to undergo rigorous imprisonment for three
years under Section 148 of the I.P.C., whereas, appellant no. 6 (Gena
Rai), appellant no. 1 (Gauri Rai), appellant no. 2 (Heman Rai) and
appellant no. 3 (Laxman Rai) were further sentenced to undergo
rigorous imprisonment for two years for offence under Section 147
of the I.P.C. The Court directed that all the sentences shall run
concurrently.
2. The appeal was admitted on 26-08-1993 and all the
appellants were directed to be released on bail by the said order.
While the matter was listed under the heading "For Hearing" on first
occasion i.e. 25-05-2017, there was non-appearance on behalf of
appellants. Thereafter, again on 23-06-2017, there was non-
Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017
3/21
appearance and therefore, considering the fact that appeal was
pertaining to the year 1993, it was felt necessary not to defer the
matter and as such, Court requested Sri Avanindra Kumar Jha,
learned counsel to assist the Court as Amicus Curiae and as such, by
order dated 23-06-2017, he was appointed as Amicus Curiae and
matter was heard. Sri Ajay Mishra has appeared as Addl. Public
Prosecutor for the State. The matter was partly heard on
23-06-2017and further it was heard today.
3. Short fact of the case is that on 12-06-1991 at about 8:40 A.M., fardbeyan of one Ram Dulari Devi, wife of deceased Sonelal Rai was recorded at Primary Health Centre, Patori. In her fardbeyan, she stated that on the same date in the morning, her husband at about 5:30 A.M. had left for easing in a field. Thereafter, at about 5:45 A.M., she heard cry of her husband. Thereafter, she alongwith her son Rajendra Rai proceeded towards her husband and saw that her husband had fallen in the maize field of Munshi Saw and crying. He was surrounded by his co-villagers namely Gena Rai (appellant no. 6), Gauri Rai (appellant no. 1), Heman Rai (appellant no. 2), Laxman Rai (appellant no. 3), Birjee Rai (appellant no. 4) and Dulli Rai (appellant no. 5). They were mercilessly beating her husband. When she tried to save her husband, the accused persons proceeded to assault her also and as such, her son fled away. Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 4/21 However, she laid her body on her husband. Thereafter, accused Gena Rai (appellant - 6) gave her lathi blow. However, due to fear of the accused persons, other co-villagers did not interfere. In the meanwhile, her husband tried to flee away to his house in injured condition, he was again chased by aforesaid accused persons and caught him near his house and accused persons, with an intent to kill her husband, assaulted him with lathi, bhala and farsa. The accused persons also entered into the house of her Gotini (wife of husband's brother) Dhanwa Devi and Gotini Basmati Devi and also assaulted them. When number of villagers arrived, all the accused persons fled away. It was further disclosed that since her husband was breathing, he was carried on a Jeep to Patori Hospital, however; on the way, he succumbed to injuries. Thereafter, she carried the dead-body of her husband with her sons to the hospital and in Patori Primary Health Centre, her fardbeyan was recorded.
4. On the basis of fardbeyan of the informant, an F.I.R., vide Patori Muffasil P.S. Case No. 56 of 1991 was registered on 12-06-1991 for the offence under Sections 147, 148, 149, 341, 323, 342, 448, 325, 307 and 302 of the Indian Penal Code against all the appellants. During investigation, the case was found true and thereafter, chargesheet was submitted. After order of cognizance and compliance of provision under Section 207 of the Cr.P.C., the Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 5/21 case was committed to the court of sessions and charges were framed on 23-12-1992. Accused persons denied their charges and as such, they were put on trial.
5. During trial, prosecution examined altogether 20 witnesses. Sri Rajendra Rai son of deceased Sonelal Rai was examined as P.W.-1, who has claimed to be eye-witness to the occurrence and also witness to the fardbeyan. P.W.-2 (Krishnadeo Rai) nephew of deceased was examined as eye-witness to the occurrence. P.W.-3 (Bisundeo Rai) was a witness to the fardbeyan and also to inquest report. During the trial, he proved his signature on the fardbeyan, which was marked as Ext. - 1 and his signature on the inquest report i.e. Ext. - 1/1. P.W.-4 (Gonelal Rai) brother of the deceased was also an ocular witness and supported the prosecution case. P.W.-5 (Kapildeo Rai) was inquest witness and he has proved the signature on inquest report, which was marked as Ext. ½. P.W. - 6 (Jhingur Rai) was an eye-witness and deposed similarly as P.Ws. 1, 2 and 4, who were examined as eye-witness to the occurrence. P.W.- 7 namely Suresh and P.W.-8 namely Umesh, both son of deceased Sonelal Rai were tendered and as such, nothing is required to be noticed about their evidence. Ram Dulari Devi, informant & wife of deceased, was examined as P.W.-9, who supported the prosecution case, as an eye-witness and also she was injured in the occurrence. Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 6/21 Kismat Devi (P.W.-10) and Ramwati Kumari, daughter of deceased Sonelal Rai (P.W.-12) were only tendered. Dhanwa Devi, wife of Gonelal Rai (P.W.-4), was examined as P.W.-11. She was also assaulted in the occurrence and she has supported the prosecution case. Basmati Devi, wife of Jodhan Rai (brother of deceased) was also assaulted by the accused persons, who has supported the prosecution case, was examined as P.W.-13. One Sobhelal Rai, son of deceased Sonelal Rai (P.W.-14), Jodhan Rai, brother of the deceased (P.W.-15) and Tully Rai (P.W.-16) were tendered. Dr. Bhola Prasad Singh, who has examined injuries of informant (P.W.-9), was examined as P.W.-17, who has proved the injury report of P.W.-9, which was marked as Ext. - 2. Dr. Ram Narain Singh, who conducted post-mortem examination on the dead-body of the deceased, was examined as P.W.-18. P.W.-19 (Md. Kaisar Imam Ali), officer incharge of Patori Police Station and also Investigating Officer of the case, has proved the fardbeyan, which was marked as Ext. - 4. Inquest report was marked as Ext.-5 and formal F.I.R. was marked as Ext. - 6. He has categorically stated in his deposition that after the occurrence, he visited the place of occurrence and he noticed the field was trampled. He also visited the second place of occurrence i.e. place where female inmates were assaulted. In paragraph - 6 of his deposition, the investigating officer has categorically stated that Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 7/21 accused persons were powerful persons (Dabangg) and as such, independent witnesses were not coming forward to depose. Sri Vijay Kumar Chaudhary was examined as P.W.-20, who has only proved a petition.
6. On going through the evidence, which has been brought on record particularly evidence of eye-witnesses, the Court is of the view that there is consistency in the evidence of eye- witness, particularly on the point of giving assault to the deceased as well as other female inmates. In the evidence, there is also sufficient material that accused persons had intruded into the residential house of the female inmates and they were assaulted. P.W.-1 (Rajendra Rai), in his examination-in-chief, has made categorical statement that he heard the crying sound of his father, which was coming from the Maize field and thereafter, he noticed that Gena Rai (appellant no. 6), Gauri Rai (appellant no. 1), Heman Rai (appellant no. 2) and Laxman Rai (appellant no. 3) at that very time were carrying lathi, Birjee Rai (appellant no. 4) was carrying bhala, while Dulli Rai (appellant no. 5) was having farsa and all of them were assaulting his father. He alongwith his mother tried to save his father, then Gena Rai (appellant no. 6) assaulted his mother by lathi. He stated that in injured condition, his father started to flee away to his house, thereafter, accused persons again intercepted him on way Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 8/21 near his house and started assaulting him. All accused persons thereafter entered into the house and assaulted Dhanwa Devi (P.W.-
11) and Basmati Devi (P.W.-13). In paragraph - 3, P.W.-1 (Rajendra Rai) has admitted that in between his father and accused persons, a criminal case was going on and this was the reason for committing the crime. In paragraph - 7 in his cross-examination, P.W.-1 has made categorical statement that in the occurrence, his father was assaulted from back side of the farsa. He has also stated in paragraph - 12 that Basmati Devi was assaulted, but no blood was oozing from her body. P.W.-2 (Krishnadeo Rai) in paragraph - 1 has stated like P.W.-1 that after hearing cry of Sonelal Rai, he went to the field and saw that all the appellants were assaulting Sonelal Rai. He has stated that Dulli Rai (appellant no. 5) was carrying farsa and Birjee Rai (appellant no. 4) was carrying bhala and rest all the accused persons were having lathi. P.W.-4 (Gonelal Rai) is the brother of the deceased. He was also an eye-witness and stated that all the appellants were assaulting Sonelal Rai. He stated in paragraph - 1 that Dulli Rai (appellant no. 5) was having farsa in his hand, whereas, Birjee Rai (appellant no. 4) was having bhala. He stated that in the occurrence, the accused persons had also intruded into the dwelling house and assaulted Dhanwa Devi and Basmati Devi. Besides this, he has further stated that accused persons had Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 9/21 also assaulted Ram Dulari Devi, wife of deceased Sonelal Rai (P.W.-
9). In his cross-examination, nothing could be extracted to create any doubt on his evidence. P.W.-6 (Jhingur Rai) is also an eye- witness. In paragraph - 2 of his examination-in-chief, he has stated that on hearing the sound of cry of Sonelal Rai, he went to the Maize field and saw that Sonelal Rai was being assaulted by all the appellants. He has stated in the same paragraph that Birjee Rai (appellant no. 4) was armed with bhala and Dulli Rai (appellant no.
5) was carrying farsa and rest of the accused persons were having lathi in their hand. He has further stated that while Ram Dulari Devi (P.W.-9) tried to save her husband, she was also assaulted by Gena Rai (appellant no. 6) by means of lathi. This witness was extensively cross-examined, but nothing could be extracted to create any doubt on his evidence. P.W.-9 Ram Dulari Devi, wife of deceased has made detailed statement before the trial court and stated that at about 5:30 A.M. (morning), her husband left for easing in the field and thereafter, she heard the sound of his cry and visited the place of occurrence, where she noticed that her husband was being assaulted by all the appellants. She has stated that Birjee Rai (appellant no. 4) was carrying bhala, while Dulli Rai (appellant no. 5) was having farsa and rest of the accused persons were carrying lathi. She has stated that while she tried to save her husband, she was assaulted by Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 10/21 Gena Rai (appellant no. 6) by means of lathi. She further stated that the accused persons subsequently intruded into the house and assaulted Basmati Devi (P.W.-13) and Dhanwa Devi (P.W.-11). Though, she was extensively cross-examined, but on going through the evidence, nothing has come to create any doubt on her deposition. In her cross-examination, in paragraph - 18, she has stated that she had told to the officer incharge that in the occurrence, her husband was assaulted by lathi of the farsa and bhala. She has made categorical statement in paragraph - 18 that she had not stated before police that in the occurrence, Birjee Rai (appellant no. 4) had assaulted by farsa. P.W.-11 (Dhanwa Devi) in paragraph 1 of her deposition has stated that at about 5:30 A.M., she was at her residence. While she was at her residence, all the accused persons intruded. She stated that Dulli Rai (appellant no. 5) was carrying farsa and Birjee Rai (appellant no. 4) was carrying bhala and rest all the accused persons were carrying lathi. She has stated that she was assaulted by means of lathi and slaps by Heman Rai (appellant no. 2) and her gotini Basmati Devi was also assaulted. Similarly, Basmati Devi, who was examined as P.W.-13, has deposed regarding her assault as well as stated regarding participation by all the accused persons as well as the fact that Dulli Rai (appellant no.
5) was carrying farsa and Birjee Rai (appellant no. 4) was carrying Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 11/21 bhala and rest all the accused persons were carrying lathi. In her cross-examination, nothing could be extracted to create any doubt on her deposition. The injuries received by Ram Dulari Devi (informant) in the occurrence was examined by Dr. Bhola Prasad Singh, who was examined as P.W.-17, and in his examination, he has stated that on the date of occurrence, he had examined the injuries of Ram Dulari Devi and found one abrasion on right knee size 1" X ¼", which was caused by hard and blunt substance. The evidence of P.W.-17 corroborates about veracity of the prosecution case, so far as assault given to informant in the occurrence is concerned. The injury report was marked as Ext. - 2. Dr. Ram Narain Singh (P.W.-18) had conducted post-mortem examination on the dead-body of the deceased Sonelal Rai on 13-06-1991 i.e. next date of the occurrence. At the relevant time, he was posted at Samastipur Sadar Hospital. The post-mortem was conducted on 13-06-1991 at about 9:30 A.M. P.W.-18 had found following ante-mortem injuries on the body of the deceased:-
"1. I. Bruise with swelling over both sides of back
- 4 in number each measuring breadth about 1½ " and in length 2" to 6"
II. Abrasion about 2" X ¼ " over back of waist III. Abrasion 1" X ½ " over left knee IV. Bruise and swelling over outer side of right area about 2" X ½ "
2. On deep dissection of chest there was fracture of Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 12/21
(i) sternum midway
(ii) 2nd to 6th ribs of right side
(iii) 2nd to 4th ribs of left side."
7. In paragraph - 3 of the deposition of P.W.-18 (Dr. Ram Narain Singh), he had stated that as per injuries, the weapons used were hard and blunt substance, such as; lathi, blunt portion of a farsa etc. Death was caused by shock and haemorrhage. He had proved the post-mortem examination report, which was marked as Ext. - 3. The post-mortem report has suggested following injuries and reason for death:-
"The following ante mortem injuries were found on the persons of the deceased:
(1) Bruise with swelling over both sides of back
- 4 in number each measuring breadth about 1½ " and in length 2" to 6"
(2) Abrasion about 2" X ¼ " over back of waist (3) Abrasion 1" X ½ " over left knee (4) Bruise and swelling over outer side of right area about 2" X ½ "
On deep dissection of chest there was fracture of strnum midway, 2nd to 6th ribs of right side and 2nd to 4th ribs of left side. Laceration of pleura, lung, pericardium and heart. Blood and blood clots were present in chest caze.
Time elapsed since death - within 36 hrs. Weapons used - hard and blunt substances.
The death has been caused by shock and haemorrhage due to above mentioned injuries."
Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 13/21
8. After conclusion of the prosecution evidence, statement of accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973 and they denied about the evidences brought against them. Thereafter, the learned Trial Judge, after hearing the parties on the basis of evidence on record, held all the appellants guilty, as has been discussed above and sentenced them.
9. Sri Avanindra Kumar Jha, learned Amicus Curiae, while arguing the case, initially, tried to create doubt on the prosecution case, however; considering the consistent evidence of eye-witnesses corroborated with other evidences, he was not in a position to argue the case, as if it was a case of acquittal. However, he has argued that even if entire evidence is examined in its totality, it cannot be a case for offence under Sections 302/34 of the Indian Penal Code. He submits that for proving the charge under Section 302 of the I.P.C., basic ingredient is to prove about the intention. He submits that there is consistent evidence on the point that deceased was assaulted by those appellants, out of them two appellants namely Dulli Rai (appellant no. 5) was carrying farsa and Birjee Rai (appellant no. 4) was carrying bhala and all the accused persons were extensively participating in assaulting the husband of the Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 14/21 informant, but there is no allegation that either of the two appellants namely Dulli Rai or Birjee Rai had used sharp portion of their weapons in the occurrence. On the contrary, the eye-witnesses have said that the accused persons Dulli Rai and Birjee Rai had used back portion of the farsa and lathi portion of the bhala respectively. He submits that evidence suggests that the intention was only to assault, not to cause death of deceased Sonelal Rai. By way of referring to Ext. - 3 i.e. post-mortem examination report, he submits that on the dead-body of the deceased, none of the injuries were found on vital part of the deceased. All the injuries were lacerated and no injury was found, which was caused by sharp cutting weapon. The doctor, who conducted post-mortem examination, has not given specific opinion regarding the death by which injury. He has suggested that death was caused due to shock and haemorrhage. He submits that it was a case for offence under Section 304 Part II read with Section 34 of Indian Penal Code, considering the evidences brought on record. To substantiate his submission, he has placed heavy reliance on a judgment of the Apex Court, reported in (1994) 2 Supreme Court Cases 568 (Raja Ram and others vs. State of M.P.). He submits that in the said case also accused persons were held guilty for offence under Sections 302/149 of the Indian Penal Code and conviction was approved by the High Court, however; the Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 15/21 Supreme Court opined that on the basis of evidences on record, there was material to suggest that it was not a case of intention to kill and Supreme Court altered the conviction from Section 302/149 of the Indian Penal Code to Section 304 Part II read with Section 149 of the Indian Penal Code.
10. So far as conviction and sentence in respect of other offences i.e. Sections 452 and 323 of the I.P.C. against all the accused persons and Section 148 of the I.P.C. in respect of appellant no. 4 & 5 and Section 147 of the I.P.C. in respect of appellant no. 6, appellant no. 1, appellant no. 2 and appellant no. 3 is concerned, considering the consistent evidence, learned Amicus Curiae was not in a position to raise any objection to the judgment of conviction and sentence. Sri Jha, learned Amicus Curiae has also placed reliance on AIR 1993 Supreme Court 2317 (Ramesh Kumar vs. State of Bihar & Ors.). He submits that in the said case also conviction under Section 302/34 of the I.P.C. was converted in appeal by the High Court to offence under Section 304 Part II/34 of the Indian Penal Code and judgment of the High Court was approved by the Supreme Court. On aforesaid ground, it has been argued that in any event, the conviction and sentence, so far as Section 302 of the I.P.C. is concerned is required to be altered to Section 304 Part II r/w Section 34 of the I.P.C.
Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 16/21
11. Sri Ajay Mishra, learned Addl. Public Prosecutor has vehemently opposed the prayer of the appellants. He submits that in the prosecution case, there is no contradiction, rather there is consistent evidence that all the accused persons in pre-planned manner, had intercepted the husband of the informant in a field while he had gone to attend nature call and as such, according to him, the case is made out under Section 302 of the I.P.C. and judgment under appeal requires no interference.
12. Besides hearing learned counsel for the parties, we have perused the materials available on record. In the case, we have already discussed evidences, which have been brought on record. It is a case in which there are number of eye-witnesses and the manner in which occurrence had taken place. There is no reason to raise any doubt. However, considering the fact that it was consistent case of the prosecution that accused persons though in the occurrence were carrying bhala and farsa and even then, they did not give any infliction by those weapons, it can be inferred that in the occurrence, there was no intention to kill the deceased Sonelal Rai. Had there been any intention to kill, there was no reason to prevent them to inflict farsa blow or give injury by bhala. However, the eye-witnesses have said that the accused Dulli Rai (appellant no.
5), who was carrying farsa, had not used its sharp portion in the Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 17/21 occurrence, rather he gave assault from the back portion of the farsa. Similarly, the witnesses have accepted that Birjee Rai (appellant no.
4) though was carrying bhala, he did not use the sharp portion of the bhala in the occurrence, rather from danda or rod side of the bhala assault was given. The post mortem examination report corroborates the submission of Sri Jha, learned Amicus Curiae that there was no intention to kill. On the dead-body of the deceased, no injury was found above the neck side of the deceased. There was injury on knee and chest portion, which were lacerated wound. Most of the assault was given on the back side of the deceased, which have been corroborated in the post mortem examination report and as such, there is no reason to doubt that there was no intention to kill. There is difficulty to held all the appellants guilty for offence under Section 302 of the I.P.C. Learned Amicus Curiae has rightly placed reliance on the judgment of the Apex Court in Raja Ram's case (supra). It would be better to quote paragraph 7 & 8 of judgment, which are as follows:-
"7. We find from the medical evidence that no injury whatsoever had been caused to the deceased either by ballam, pharsa or even by an axe. So far as the injuries allegedly caused by the country made pistol below the knee near the left foot of the deceased are concerned, they also go to show that the accused party did not intend to cause the murder of Halke deceased.
Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 18/21
8. Dr. K.M. Ojha, PW 15 admitted that he could not say with certainty whether the injuries below the knee had been caused by a country made pistol because he did not find any bullet or pellet in the dead body of Halke. It is, therefore, obvious that though the appellants were armed with formidable weapons, including a country-made pistol and an axe, they did not use those deadly weapons to cause injuries to the deceased. The injuries were caused to the deceased mainly by lathi blows. None of the injuries was caused on any vital part of the body of the deceased either. Keeping in view the ocular testimony and the medical evidence, we find it difficult to hold that the appellants had intended to cause the injuries on the deceased which were sufficient in the ordinary course of nature to cause his death. As a matter of fact, Dr. Ojha appearing as PW 15, did not even state in his evidence that the injuries found on the deceased were sufficient in the ordinary course of nature to cause death. On the other hand, he stated that the injuries sustained by Halke could not result in his instant death but that "death was possible due to haemorrhage within 6 to 18 hours". Had the appellants shared the common intention to cause the death of the deceased, nothing could have prevented them from using the deadly weapons like axe, ballam, pistol etc. and attack the deceased on some vital part of his body? All, but one injury, found on the deceased were, according to medical evidence, simple injuries. Our analysis of the material on record shows that the appellants and their two associates did not intend to cause the death of the deceased. The facts proved by the prosecution and the established circumstances on Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 19/21 the record go to show that the case of the appellants does not fall within the ambit of any of the four clauses of the definition of murder contained in Section 300 IPC. However, in causing the injuries as have been noticed in the post-mortem report and deposed to by Dr. Ojha PW 15, the appellants must be attributed the knowledge that by their acts, they were likely to cause the death of the deceased, though without any intention to cause his death or to cause such bodily injury as is likely to cause his death. The offence, in such a case, would, therefore, be only culpable homicide not amounting to murder as per the third clause of Section 299 IPC, punishable under Sections 304 Part II/149 IPC. We, therefore, are of the opinion that the High Court was not justified in convicting the appellants and two others for the offence under Sections 302/ 149 IPC. They could only be convicted for an offence punishable under Section 304 Part II read with Section 149 IPC. We therefore set aside their conviction for the offence under Sections 302/149 IPC and instead convict them for the offence under Section 304 Part II read with Section 149 IPC."
13. Considering the entire evidence, the Court is of the opinion that learned Trial Judge has rightly held all the appellants guilty for offence under Section 452 of the I.P.C. and Section 323 of the I.P.C. and there is no reason to doubt on the conviction and sentence for offence under Section 148 of the I.P.C. against accused appellant no. 4 & 5 i.e. Birjee Rai and Dulli Rai respectively who Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 20/21 were carrying deadly weapons in the occurrence and similarly, there is no reason to doubt regarding the conviction and sentence to appellant no. 6, 1, 2 and 3 for offence under Section 147 of the I.P.C. However, the conviction and sentence for the offence under Section 302/34 of the Indian Penal Code is required to be interfered with, considering the evidence that there was nothing to suggest that there was element of any intention to kill the deceased.
14. Accordingly, conviction for the offence under Section 302/34 of the Indian Penal Code is, hereby, set aside and altered to Section 304 Part II read with Section 34 of the Indian Penal Code and as such, they are sentenced for offence under Section 304 Part II read with Section 34 of the Indian Penal Code to undergo rigorous imprisonment for seven years.
15. Considering the fact that in the case, occurrence had taken place long back in the year 1991, the judgment of conviction and sentence is modified to the extent, as indicated above.
16. The appeal stands dismissed with aforesaid modification.
17. All the appellants i.e. appellant no. 1 to 6 were granted bail by this Court by order dated 26-08-1993. Accordingly, their bail-bonds are cancelled. They are directed to surrender before the court below forthwith for undergoing imprisonment for Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 21/21 remaining period excluding the period during which they remained in custody during investigation, trial or after conviction, if any. It is further clarified that all the sentences shall run concurrently.
(Rakesh Kumar, J.)
(Mohit Kumar Shah, J.)
Anay
AFR/NAFR NAFR
CAV DATE N/A
Uploading 05.07.2017
Date
Transmission 05.07.2017
Date