Fulena Roy vs The State of Bihar

P.N. Yadav, J.—The Appellant (sic) convicated and sentenced to undergo rigorous Imprisonment for five years u/s 304(2) read with Section 34 of the Indian Penal Code (hereinafter to be retread to as the Code) vide the judgment and order dated 19.7.1990 passed by the (sic)d Additional Sessions Judge, Begusarai in Sessions Trial No. 191 of 1982.

The prosecution case as unfolded in the F.I.R. and the evidence of the prosecution witnesses lay within a narrow compass. The deceased Madho Rai was at about 8 A.M. on 9.6.1979 plucking bamboo leaves in front of his BASA situated at Page Jagdishpur under the jurisdiction of Bhagwanpur Police Station of Begusarai district. The leaves of bamboo were being plucked for their use as fodder. Just then the Appellant Fulena Rai and his father Lal Babu Rai (since dead) having armed themselves with spear and farsa respectively rent there. They surrounded and assaulted the deceased with the weapons they were having in their hands. The deceased sustained injuries on head and other parts of his body. Hearing hue and cry the witnesses arrived at the scene of incident and they witnessed infliction of assault. After assaulting the deceased, both the Appellant and his father Lal Babu Rai retreated. The deceased after sustaining injuries fell down and became un-conscious.

The deceased was taken to Dahia Hospital where the fardbeyan of the informant Ram Bhajan Rai (P.W. 5), counsin of the deceased was recorded by the officer incharge of Bhagwanpur Police Station on the basis of which Bhagwanpur PS. Case No. 3 dated 9.6.1979 giving rise to the instant case was registered under Sections 324 and 342 of the Code against the Appellant and his father Lal Babu Rai. A few days later Sections 307 and 325 of the Code were added vide order dated 5.7.1979. Investigation was taken up and after completion thereof the chargesheet was submitted u/s 302 read with Section 34 of the Code against both the Appellant and his father Lal Babu Rai and finally the trial commenced after commitment as the deceased succumbed to injury in course of treatment.

During the pendency of the case in the Sessions Court, the Appellant''s father Lal Babu Rai died and as such prosecution against him was dropped vide order dated 29.4.1988.

The Appellant entered into defence, he examined three witnesses namely, Ram Prakash Rai (D.W. 1), Ram Shankar Choudhary (D.W. 2) and Lotery Paswan (D.W. 3). From the trend of cross examination of the prosecution witnesses as well as the evidence of the defence witnesses and the statement of the Appellant recorded u/s 313 Code of Criminal Procedure the defence seemed to be that of total denial and false implication out of sheer enmity emanating from land dispute.

In order to prove its case, the prosecution examined as many as eight witnesses. The learned Additional Sessions Judge after taking the facts, circumstances and evidence brought on record into account found and held the Appellant guilty and he convicted and sentenced him as stated above vide the impugned judgment and order.

Aggrieved by the judgment and order of conviction and sentence recorded against him the Appellant preferred the instant appeal. The Appellant assailed the impugned judgment and order of conviction and sentence by contending that medical evidence was not in consonance with eye witness account of infliction of assault, that the witnesses, who claimed to be eye witnesses did not in fact see infliction of assault on the deceased; that the witnesses examined in the case were related to the deceased; that the F.I.R. was lodged by the nephew of the deceased and not by his son; that the Investigating Officer was not examined by the prosecution on account of which prejudice was caused to the Appellant in his defence.

P.W. 1 Ram Udit Rai, P.W. 2, Bhuttu Rai, P.W. 3 Ram Sudhist Rai and P.W. 5 Ram Bhajan Rai were eye witnesses to the incident and as such their evidence assumed important significance. P.W. 5 was the informant. He supported the prosecution case in its entirety by stating on oath that at the time of occurrence he was at his Dera where from he saw the deceased plucking bamboo leaves in his Basbitti and just then the Appellant and his father Lal Babu Rai went there and they abused the deceased for plucking the leaves, there ensued exchange of hot words between the deceased and the Appellant and his father. Hearing hue and cry P.W. 5 rushed to the Basbitti where he saw that Lal Babu Rai dealt a farsa blow on the head of the deceased while the Appellant assaulted him with spear as a result of which he sustained injuries and fell down. P.W. 5 spoke of arrival of P. Ws. 1, 2 and 3 also at the scene of incident. Identical was the evidence of P. Ws. 1, 2 and 3. P.W. 1 ran to the place of occurrence from his BASA after hearing alarm coming from the Basbari. P.W. 2, who was the son of the deceased, was at his Dera and he rushed to the place of occurrence on hullah. Similarly, P.W. 3 went to the place of occurrence from his" house after he heard alarm. P. Ws. 1, 2 and 3 testified to infliction of farsa blow on the head of the deceased by Lal Babu Rai and assault with spear inflicted by the Appellant on the person of the deceased. It is in the evidence of the aforesaid witnesses that the deceased in injured condition was taken to Dahia Hospital where from he was referred to Begusarai Sadar Hospital and in course of treatment he succumbed to injuries after lapse of about 35-36 days from the da(sic) the incident. From the evidence on record it transpires that the deceased all alone remained unconscious and he never came to sense from the date of occurrence in his death. The evidence of the eye witnesses on point of incident leading to infliction of assault on the deceased resulting in his death was consistent and Corroborative.

P. Ws. 2, 3 and 5 were cross examined at length but nothing material going in the root of the case was elicited in this cross examination. From the statements of P.W. 2, it would transpire that from his Dera the place of occurrence situated at a distance of 300 cubits. He may well be expected to hear and see exchange of hot Words and infliction of assault from his Dera particularly when according to his there was only open field and there was no obstruction caused by trees or houses in between his Dera and place of occurrence It is in his evidence that he was seeing the occurrence all along his way while he was passing through the field to reach the place of occurrence and he did immediately rush to the scene, or the incident. The statement of P.W. 2 in his cross examination that when he reached the plan of occurrence his father was fallen and unconscious cannot be interpreted to me(sic) that he did not witness assault and he reached the place of occurrence after he father (deceased) had already been (sic) saluted. On consideration of his entire statements, it would be crystal clear that P.W. (sic) saw the incident from his Dera and also (sic)the place of occurrence where he had reached within a few seconds from his Dera. His statement in cross examination that after he and his brother (cousin) (P.W. 5) reached the place of occurrence, P.W.(sic) and P.W. 1 arrived there could not m(sic) that they did not see infliction of assault (sic) the deceased particularly when there was reliable evidence that they had rushed to the place of occurrence and they witnessed the infliction of assault on the deceased. P.W. 3 stated that. P.W. 1 Ram Udit Rai and P.W. 5 Ram Bhajan Rai were by the side of the place of occurrence, that is, in close vicinity of it and they also arrived at the scene soon after he reached there and P.W. 5 stated that P.W. 2 and P.W. 3 were at the place of occurrence and no one else was present there while according to P.W. 3 certain other villagers had also arrived at the place of occurrence. Obviously the statements of the witnesses who are virtually rustic and illiterate persons suffer from no material inconsistency or discrepancy. Whatever minor inconsistency or even contradiction arose in their evidence that is of no consequence and the same must be ignored. Some minor discrepancies or contradictions are bound to occur even in the evidence of natural and truthful witnesses, for when they make their way through the labyrinth of cross examination they venture to give some answers which are not necessarily true or relevant for fear that their evidence on the main incident which they have witnessed may not be discarded.

Incidentally it may be mentioned that P.W. 1 Ram. Udit Rai was not cross examined. It would appear that he could not be cross examined as the Appellant or his advocate had declined to subject the witness to cross examination. Even if P.W. 1 was not cross examined his evidence in view of unimpeachable evidence of the other witnesses, to wit, P. Ws. 2, 3 and 5 can be looked into and the same cannot be discarded.

The eye witness account of the incident leading to infliction of assault on the deceased resulting in his death was in consonance with the medical evidence. Dr. Madan Lal Gupta conducted autopsy on the dead body of the deceased. He found fracture of skull of right pareito frontal bone and fracture of left pareital bone and on dissection he found laceration of right frontal and pareital lobe of the brain which resulted in brain infection and abses formation. Besides the aforesaid injuries, the doctor found two other fracture injuries including the one of the right lower portion of febula. In the opinion of the doctor, the death was due to brain laceration and chronic supression of right pareital lobe of the brain as a result of trauma caused by hard blunt substance. The postmortem examination report made by the doctor is Ext. 3.

It was vehemently urged that the eye witnesses stated that the Appellant dealt spear blow vide (sic-while?) his father Lal Babu Rai had assaulted the deceased with farsa and both farsa and spear were sharp cutting weapons but the doctor did not find any injury caused by sharp cutting weapon and he merely found injuries caused by hard blunt substance and this inconsistency in medical evidence and ocular evidence instilled serious doubt in the prosecution case. In this connection, it may be observed that none of the eye witnesses stated that the deceased was assaulted with sharp or pointed portions of aforesaid weapons. The witnesses stated that on account of infliction of blows the head of the deceased was broken and that was also indicative of infliction of assault with blunt portions of the weapons. Had the sharp and pointed portions of weapons been used by the miscreants including the Appellant in causing injuries the witnesses would have stated that the deceased sustained cut and pierced injuries and they would not have said that the blows resulted in breaking of the head of the deceased. Even in cross examination the witnesses were not put question regarding infliction of blows with sharp or pointed portions of the weapons. Under the circumstances, medical evidence cannot be said to be inconsistent with the ocular evidence.

It is to be stated that the deceased soon after occurrence was taken to Dahia Hospital in injured condition. He was said to have been examined there by doctor Shankar Jha and soon thereafter he was referred to Begusarai Hospital. Doctor Shankar Jha was not examined. However, the injury report made by him was got exhibited by formal witness named Hardeo Singh (P.W. 6) and the injury report was marked Ext. 5. As the doctor was not examined the injury report purported to have been made by him cannot legally be taken in evidence and it cannot be looked into. However, in view of abundance of other material on the point of occurrence and the evidence of the doctor (P.W. 4) who conducted postmortem examination non examination of Dr. Shankar Jha is of no consequence and the same must be ignored.

The Investigating Officer was not examined. It would appear that strenuous efforts were made by the trial Court to procure attendance of the Investigating Officer but despite that he could not be traced out and examined. The case diary was not proved and exhibited by a formal witness named Sheo Kumar Singh (P.W. 7) and that was marked Ext. 6. Ext. 6 was also of no avail to the prosecution in asmuch as the contents of the case diary could not be used against the Appellant-accused. However, in the facts and circumstances attending to the case, non examination of the Investigating Officer cannot be said to be fatal to the prosecution case.

P. Ws. 2, 3 and 5 testified to the taking place of the occurrence at the site where Basbitta stood. Their evidence also established how the deceased had acquired the land and the Basbitta where the occurrence took place. The point of time when the bamboos were planted there and the number of the bamboos in the Basbilta are not at all material and discrepancy it any in the evidence of the witnesses on this point is of no consequence. The defence also admitted that the land in question was purchased by the deceased, though according to it the sale deed through which the land was purchased by him was forged and fabricated document. The title to the land where the place of occurrence situated is not the subject matter of consideration in this case. The fact remains that the deceased was plucking bamboo leaves at the place of occurrence and in the process he was brutally assaulted by the Appellant and his father and he succumbed to injuries so inflicted on him in course of treatment, though, of course, 35-36 days after the incident. The evidence of P. Ws. 2, 3 and 5 well proved the place of occurrence.

It was contended that the witnesses examined in the case were relatives of the deceased and as such they must be said to be interested witnesses and no conviction could be based on such evidence. The contention is not tenable and acceptable. The settled principle of law is that evidence of even relatives and interested witnesses can form the basis of conviction without looking for corroboration provided after close scrutiny their evidence is found to be wholly reliable. The test prescribed by the principle of law is satisfied in the case at hand. On a careful and cautious scrutiny the evidence of the witnesses examined in present case is found to be above board and hence it has got to be accepted.

The contention that when the son of the deceased was already at the scene of incident he and not the cousin of the deceased ought to have lodged the F.I.R. has been put forward only for being rejected. It is needless to mention that law may be set in motion by any member of the society. Moreover, in the case at hand both the son and the cousin of the deceased have supported the prosecution version in its entirety.

A few words on defence version. The defence set up by Appellant was that of total denial and false implication out of sheer enmity emanating from land dispute between the parties. Though, the Appellant was said to have claimed P.O. land as his ancestral property, no suggestion to that effect was put to P.W. 2, who was the son of the deceased. He was simply suggested that no such incident took place at the place of occurrence.D. Ws. 1, 2 and 3 were simply examined on denial of the incident. They stated that no occurrence leading to infliction of assault on the deceased ever took place at the place of occurrence. D.W. 2 further stated that the deceased had no Basbitta. The evidence of the defence witnesses does not inspire any confidence. They appeared to have come forward to depose falsely just to help the Appellant.

The facts, circumstances and evidence brought on records abundantly established that the deceased was brutally assaulted by the Appellant and his father (since dead) while he was plucking bamboo leaves as a result of which he sustained injuries on vital part of his body including the head and he became unconscious and he never regained consciousness or came to senses during the entire period of his hospitalization and treatment for about 35-36 days and ultimately, he succumbed to injuries so inflicted on him by the Appellant and his father. The learned trial Court taking the entire materials into account held the view that the Appellant and his father had no intention to kill the deceased, however, they must be said to have knowledge that injuries so inflicted on him where likely to cause his death and as such it convicted the Appellant u/s 304(2) read with Section 34 and not u/s 302 read with Section 34 of the Code under which he was charged. The Appellant appears to have been rightly convicted u/s 304(2) read with Section 34 of the Code.

As regards sentence it is to be observed that the Appellant was sentenced to undergo rigorous imprisonment for five years. The sentence taking into account the fact that the precious life of the deceased has been taken away by the Appellant and his father does not seem to be exorbitant and excessive. The learned Court below has already taken a very linient view in awarding sentence to the Appellant. Hence, the sentence too does not warrant any interference by this Court.

In the result, it is to be held that there is no merit in the appeal which must fail. Accordingly, the appeal is dismissed and the impugned judgment and order of conviction and sentence stands maintained and confirmed. Let the Appellant be directed to surrender for serving out the sentence awarded to him.