Patna High Court
Ramesh Rai vs State Of Bihar on 10 April, 2018
Author: Rajeev Ranjan Prasad
Bench: Chief Justice, Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.552 of 1994
Against the judgment and order of conviction dated 14.09.1994 passed by the
2nd Additional Sessions Judge, Arrah in Sessions Trial No. 309/92.
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Ramesh Rai, S/o Ramashish Rai, R/o Village Bhushalla, P.S. Arrah Muffasil, Dist.
Bhojpur.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance:
For the Appellant/s : Ms. Maruti Kumari, Amicus Curiae.
For the Respondent/s : Mr. Abhimanyu Sharma, A.P.P.
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD) Date: 10-04-2018 The sole appellant has been convicted by the learned 2nd Additional Sessions Judge, Arrrah in Sessions Trial No. 309/92 for the offences U/S 302 and Section 323 of the Indian Penal Code, he has been sentenced to undergo rigorous imprisonment for life U/S 302 IPC and has also been sentenced to undergo rigorous imprisonment for one year U/S 323 IPC. Both the sentences have to run concurrently.
2. The prosecution case is based on the Fard-e-beyan of Kasi Nath Rai (PW8), who alleged that on 18.04.1991, at about 6:00 Patna High Court CR. APP (DB) No.552 of 1994 dt.10-04-2018 2/9 A.M., towards the south of his house he along with his brother Paras Rai was cutting soil from the land of the State of Bihar. At this stage, the appellant Ramesh Rai and one Asarfi Rai (acquitted) came there. Asarfi Rai caught hold of his brother Paras Rai and Ramesh Rai started assaulting his brother with lathi on his right eye, ear and waist in order to kill him. His brother became unconscious and when he went to save his brother then the appellant assaulted him also with lathi as a result of which he got injury on his left hand. On Hulla villagers Ganesh Rai and Nagina Rai came and saved them. His brother Paras Rai was in unconscious condition and in course of investigation the injured Paras Rai died, therefore, the case which was initially registered as Arrah P.S. Case No. 86/91 U/S 307, 323, 341/34 IPC was converted into a case U/S 302/34 IPC and a charge sheet was submitted accordingly.
3. In this case altogether 11 witnesses have been examined on behalf of the prosecution. The material witnesses are Ganesh Rai (PW1), who has stated that this appellant had given a Lathi blow on the right side of the head of the deceased Paras Rai. The statement of PW1 has been supported by Ram Nath Rai (PW2), Nagina Yadav (PW4) and Sheo Bachan Yadav (PW5).
4. As stated above, the material witnesses PW1, PW2, PW4 & PW5 supported the prosecution case. PW9 is the Investigating Patna High Court CR. APP (DB) No.552 of 1994 dt.10-04-2018 3/9 Officer, who also deposed in course of trial. The Investigating Officer proved the Fard-e-beyan as Ext.3 and the formal F.I.R. as Ext.3/1 and stated that he had collected and seized the blood stained earth from the place of occurrence and the same was sent to the Forensic Science Laboratory for examination. PW9 had submitted the charge sheet and in course of his cross-examination he had stated that he was authorized by the Dy. S.P. and the S.P., he had recorded the statement of the witnesses in course of investigation. The Investigating Officer did not support the prosecution case regarding the co-accused Asarfi Ram as, according to him, the witnesses, namely, Ganesh Rai and Ramesh Rai had stated before him that Asarfi Rai had given a call to assault Paras Rai. In this case the informant (PW8) was also an injured, his injury was simple in nature. The injury report of the informant has been proved by Dr. Ashok Kumar Chaudhary (PW10). Dr. Sunil Kumar Singh (PW11) conducted the post-mortem examination on 19.04.1991 on the dead body of Paras Rai. He has proved the injury report (Ext.7). According to him, one severe fracture 4" length from right temporal to right parietal bone was found and he has further stated that the patient died due to head injury caused by hard blunt substance, could be lathi.
5. The learned trial court concluded that the deceased died due to head injury caused on the right side of his head and the Patna High Court CR. APP (DB) No.552 of 1994 dt.10-04-2018 4/9 informant received simple injury on his left hand and, as per the prosecution witnesses, those injuries were caused on the deceased Paras Rai by Ramesh Rai (appellant) who had given a severe lathi blow on the right side of the head of the deceased with an intention to commit his murder. He was found to have caused the injury on the person of the informant.
6. Learned counsel representing the appellant submits that the learned trial court has erred in appreciating the evidences available on the record. Attention of this Court has been drawn towards the deposition of the prosecution witnesses, particularly those who are the material witnesses in this case. According to PW1 Ganesh Rai, the occurrence took place for the reason that the deceased and his brother were cutting earth from the government land. This witness has stated that the appellant had given lathi blow on the head towards right side. After the said lathi blow Paras Rai fell down but this witness has not stated that this appellant had repeated the lathi blow. There is an allegation that Asarfi Rai had also assaulted by lathi but the accused Asarfi Rai has been acquitted by the trial court finding that there was no evidence that he had common intention to kill Paras Rai.
7. PW2 Ram Nath Rai has also supported the prosecution case and has stated that this appellant had given lathi blow on the head of the deceased towards the right side. The informant (PW8) and the Patna High Court CR. APP (DB) No.552 of 1994 dt.10-04-2018 5/9 other prosecution witnesses have come out with a consistent statement that this appellant had given a lathi blow on the head of the deceased. All the witnesses are, however, also consistent on the point that there was no repetition of lathi blow.
8. Dr. Sunil Kumar Singh (PW11), who has proved the injury report, has found that the death took place because of the head injury, the nature of weapon is shown to be hard blunt substance, could be lathi. The injury was sufficient to cause death in ordinary course. The doctor found that there was no external injury on the dead body.
9. Learned counsel representing the appellant submits that the fact that this appellant had given only one lathi blow shows that he had no intention to commit murder of the deceased Paras Rai. It is submitted that none of the prosecution witnesses have alleged repetition of lathi blow by this appellant and the occurrence had taken place in the spur of moment due to altercations which had taken place, this Court may consider that in absence of any evidence on the point of intention to kill or mens rea which is an essential ingredient to convict the accused U/S 302 IPC, instead of convicting the appellant U/S 302 IPC his conviction may be altered as U/S 304 Part II of the Indian Penal Code and the sentence may be awarded accordingly.
10. Having heard learned counsel for the appellant and Patna High Court CR. APP (DB) No.552 of 1994 dt.10-04-2018 6/9 learned A.P.P. for the State and considering the evidences available on the record we find that even though there are evidences on the record that this appellant had given a lathi blow on the right side of the head of the deceased Paras Rai and accused Asarfi Rai had also assaulted the deceased by lathi but the learned trial court has already acquitted the accused Asarfi Rai due to lack of evidence on the point of common intention.
11. There are some apparent facts which are proved from the evidences available on the record. The sole appellant in this case caused injury on the head of the deceased in a sudden quarrel without intention to cause particular injury which was sufficient to cause death though he might have knowledge that the said injury is likely to cause death. Single blow was given in a sudden quarrel, the nature of weapon used is lathi, no evidence of premeditation to commit murder and no immediate motive has been proved by the prosecution. In the case of Jagpati Vs. State of Madhya Pradesh, reported in AIR 1993 SC 1360, while altering the conviction and sentence of the appellant therein from Sections 302/34 IPC to one under Section 304 Part II/34 IPC, in Paragraphs 3, 4 & 5, the Hon'ble Supreme Court held as under:-
"3. Now coming to the occurrence as such, the two weapons are blunt weapons - one is a ringed stick and the other is an ordinary stick. The first Doctor, P.W. 5 who examined the deceased found an open injury 3"
Patna High Court CR. APP (DB) No.552 of 1994 dt.10-04-2018 7/9 skin deep in the centre of the head and another swelling of about 3" in width on the forehead. The other injuries are all bruises on the chest and the arm. It is the injury on the head that resulted in the fracture of the skull causing the death. No doubt the doctor had stated that the injury was sufficient in the ordinary course of nature to cause death. He opined that the external injury Nos. 2 and 3 could have resulted in the fracture. One is attributed to Jagpati and another is attributed to Ram Krishna. From the facts stated above it is clear that Ram Krishna had absolutely no immediate motive and even the appellant, Jagpati also because of the trivial quarrel that took place went and beat the deceased. Under these circumstances, we find it difficult to hold that these two accused intended to cause that particular injury which was sufficient in the ordinary course of nature to cause death. It can also be seen that each one of the accused is attributed one blow and the injury that is said to have been caused by Ram Krishna is only a swelling. The other fact is that the deceased died on the next day.
4. In a case of this nature no doubt clause thirdly can be attracted in a technical manner, but what the Courts have to see is whether there was an intention to cause that particular injury which was sufficient in the ordinary course of nature to cause death. The courts have to take into consideration the nature of the injuries caused and the attendant circumstances.
5. Having given our earnest consideration, we think that it is not a case where S. 302, IPC is attracted. However, in causing those two injuries, one swelling and one skin- deep injury the accused must be attributed the knowledge that they were likely to cause death. In such an event, the offence committed by them would be one punishable under S. 304 Part II with S. 34 IPC."
12. In the case of Sakaldeo Sahni Vs. State of Bihar, reported in 2002(3) PLJR 133, a co-ordinate Bench of this Court when found that the appellant had given a dagger blow on the body of Patna High Court CR. APP (DB) No.552 of 1994 dt.10-04-2018 8/9 the deceased in a heat of passion and his action was not premeditated and the evidence on record does not show that the appellant had any intention to cause death held that the case would fall under Section 304 Part II of the Indian Penal Code.
13. In the present case, the fact that the appellant has not repeated lathi blow though the lathi blow given by him proved fatal which in ordinary course he should have been aware of that such an assault may result in death of a person, taking note of the judicial pronouncements of the Hon'ble Apex Court as well as this Court and that the alleged occurrence had taken place almost 27 years ago which was in the nature of a sudden quarrel on cutting of soil from government land, we are willing to give the benefit of altering the conviction of the appellant from Section 302 IPC to one U/S 304 Part II of the Indian Penal Code. The appellant is convicted accordingly U/S 304 Part II of the Indian Penal Code and his sentence of life imprisonment U/S 302 IPC is reduced to imprisonment for a term of five years U/S 304 Part II of the Indian Penal Code. The sentence awarded U/S 323 IPC is maintained. Both the sentences shall run concurrently. The Appellant shall serve the remaining period of sentence. He will surrender forthwith failing which the Superintendent of Police, Bhojpur shall arrest him within a period of seven days from the date of communication of this judgment.
Patna High Court CR. APP (DB) No.552 of 1994 dt.10-04-2018 9/9
14. The appeal is allowed in part and disposed of accordingly.
(Rajendra Menon, CJ)
(Rajeev Ranjan Prasad, J)
Dilip, AR
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 17.04.2018
Transmission 17.04.2018
Date