Kayum Mian vs The State of Bihar

S.N. Jha, J.—The sole Appellant has been convicted u/s 302 of the Penal Code and sentenced to rigorous imprisonment for life for having committed the murder of Rajesh Kumar at Kabilashpur Bazar, PS. Thawe, District Gopalganj on 13.9.92 at 6.30 P.M.

The occurrence was reported to SI Tuntun Prasad Singh at the Sadar Hospital, Gopalganj at 8 PM by Sanjay Kumar, brother of the deceased. He stated in his fardbeyan that his brother, deceased Rajesh Kumar, had gone to village Amaithi Khurd to play loudspeaker on the eve of Mahabiri Jhanda Mela. The informant had gone along with him. The procession reached Kabilashpur Bazar at about 6.30 PM. The loudspeaker was being played by Rajesh Kumar on a tractor trolly along with Band Music. Appellant Kayum Main accompanied by two persons, whose names the informant did not know, asked Rajesh Kumar to play the song of Hindi movie ''Beta'' on the loudspeaker. Rajesh Kumar began to play the song. However the villagers said that only band party will be allowed to play the music because they have fixed cash prize to the best band player. Accordingly, Rajesh Kumar stopped playing the song on the loudspeakor. (sic) this, the Appellant gave threat, Rajesh Kumar however expressed his inability to play the song saying that the villagers were objecting. On hearing this the Appellant lost temper, took out the knife and gave two blows on his chest as a result of which he stumbled from the tractor. Thereafter the Appellant fled away. The infornant arranged a motorcycle and his injured brother was taken to Sadar Hospital at Gopalganj. He however died soon, after reaching the hospital. The informant stated that the occurrence was seen by his another brother Shailendra Kumar Sah, cousin Rajendra Sah, a distant nephew Mukesh as well as several villagers who had come to the village along with the procession.

On receipt of the fardbeyan at the police station, Manjhagarh (Thawe) PS Case No. 199/92 was registered against the Appellant and two others and investigation followed. After completing the formalities SI Tuntun Prasad Singh who had investigated the case submitted chargesheet. In course of time after cognizance and commitment the Appellant was put on trial.

At the trial, the prosecution examined seven witnesses to prove its case namely P.W. 1 Shailendra Sah, P.W. 2 Mukesh Kumar, P.W. 3, Dr. Shambhu Kumar Kedia, P.W. 4 Ramashish Bhagat, P.W. 5 Sanjay Kumar, the informant, P.W. 6 Tuntun Prasad Singh and P.W. 7 Yogendra Singh. While P.Ws. 1, 2, 4 and 5 claim to be eye witnesses and were examined as such, P.W. 3 is the doctor who had held postmortem on the dead body of the deceased, P.W. 6 as mentioned above is the Investigating Officer. P.W. 7 was examined as a formal witness. The Appellant did not examine any witness in defence. From the trend of cross-examination and suggestion put to the prosecution witnesses however he seems to have taken the defence that the deceased at the relevant time was dead drunk and in a drunken condition dancing on the trolley of the tractor in course of which the fell down on the hook of the tractor and in course of fall sustained injuries and died. He (Appellant) has been implicated on account of enmity.

At the end of the trial the trial court held that the prosecution has proved its case beyond reasonable doubt and accordingly convicted and sentenced the Appellant in the manner mentioned above.

Shri P.N. Pandey, learned Counsel for the Appellant, submitted that from the evidence of the so called eye witnesses it would appear that they had not seen the occurrence, they reached the hospital on hearing about the occurrence. Not being eye witnesses their evidence should be rejected. He referred to the discrepancies in the evidence of the witnesses on the point of taking of the deceased to the hospital from the alleged place of occurrence. He urged that as a matter of fact place of occurrence has itself not been proved inasmuch as the Investigating Officer did not find any trace of blood at the place nor found the tractor or trolley there. In this connection it was pointed out that as per the evidence of the Investigating Officer himself, he was present at Kabilashpur Bazar along with a Magistrate on account of Mahabiri Jhanda Mela. Being present at the alleged place of occurrence, the occurrence should have been immediately reported to him. And though the Investigating Officer came to know about the occurrence he did precious little to make any investigation on the spot. Counsel also submitted that except P.W. 4 Ramashish Bhagat all other witnesses are relatives of the informant and the deceased and therefore being interested witnesses their evidence should not be taken at its face value. As regards Ramashish Bhagat it was pointed out that he was examined by the police after four days and therefore his evidence should be rejected too.

Considering the case of the prosecution that the deceased was taken to the hospital on a motorcycle it is clear that the question as to who took the deceased to the hospital and as to whether the witnesses reached the hospital later as stated by some of them is not very material. What is material is the question as to whether assault was seen by them at the time of occurrence. From perusal of the evidence of the eye witnesses i.e. P.Ws. 1, 2, 4 and 5 it appears that all of them gave consistent account of the occurrence supporting the earliest version of the informant in his fardbeyan within one and half hours of the occurrence. They all stated that when the deceased refused to play the song of the movie ''Beta'' as demanded by the Appellant, on the ground that the villagers had hired the loudspeaker and if they wanted the band party to play the tunes, he would not play the loudspeaker contrary to their wishes. No sooner than the deceased refused to play the song on the loudspeaker, saying "see, how I make you play", he took out a knife from his waist and gave two blows on the chest as a result of which he stumbled from the tractor. P.W. 4 Ramashish Bhagat, undisputedly an independent witness, also gave a similar account of the occurrence. As regards the fact that his statement was recorded by the police after four days, it appears that he is resident of Amaithi Khurd, a different village from the village of informant and other eye witnesses namely Chhapia, and he explained in his evidence that after the deceased was taken to the hospital at Gopaiganj he went home. If the I.O. did not take care to record his statement, may be because he was not named as a witness in the fardbeyan, his evidence cannot be discarded.

It may be mentioned here that the injuries found on the deceased in course of postmortem also corroborate the prosecution case. The doctor found two injuries: (a) Incised wound over right side of the chest extending from the 2nd to 4th intercostal space, 2" x 1" x 4". The 3rd and the 4th ribs of the right side of the chest were cut at the costo-chondral junction. Right sided plural cavity was full of blood. Right upper lobe of the Right lung was cut, 1" x 3" deep, (b) Incised wound over left side of the chest 1" x 1/2" x 3" just lateral to the sternum. Left 4th, 5th and 6th ribs were cut at the costo-chondral junction. Pericardium was full of blood. Incised wound in right ventricle one centimetre in length.

While referring to the injuries it may be mentioned that the doctor in his evidence stated that the injuries had been caused by some sharp cutting weapon. He described knife as a sharp cutting weapon. Further, he stated that the injuries wore not possible by sharp pointed rods. The above opinion does not fit in the defence suggestion that the deceased while dancing in drunken condition had fallen down on the trolley and sustained injuries. There is nothing on record to suggest that the side of the trolley had any sharp end which could cause injuries of the nature found on the deceased, rather it is apparent that the injuries were caused by a weapon like knife.

It is true that the Investigating Officer did not make any investigation on the spot after coming to know about the occurrence, he took up investigation only after recording the fardbeyan of the informant at the hospital at Gopalganj. The Investigating Officer however has given the explanation in this regard. He stated that he was on duty at Kabilashpur Bazar. On the date of occurrence a Mela was being held on the occasion of Mahabiri Jhanda and he was present there on duty since 3-4 PM. Along with him, the police force and a Magistrate was there on duty. The procession had arrived from 3-4 villages consisting of hundred of people each. By the time he learnt about the occurrence, law and order problem had arisen and he remained busy tackling the situation. Though in that process he also went to the place where the incident had taken place but on account of the prevailing situation he could not make close inspection of the place. He also could not record statement of witnesses because people were running helter and skelter. The above evidence of the I.O. fully answers the submission of the counsel about the I.O. not making any investigation or the information not being lodged with him at the place of occurrence where he was already present. In my opinion, the conduct of the prosecution party in asking the deceased, who had sustained serioius injuries, to the hospital without losing time in reporting the occurrence to the investigating Officer was quite natural and does not admit of any doubt.

The submission that the three out of four material witnesses being relatives of the informant are interested in the prosecution case, in the facts and circumstances, does not carry much weight. The few is well settled that conviction can be based even on the evidence of close relatives who may be otherwise interested in the prosecution case. The only thing is that their evidence should be scrutinised with due care and caution. It may be observed there that there is growing tendency in recent times not to get involved in police cases and therefore if independent witnesses do not come forward to support the prosecution case, the veracity of the case cannot be doubted. It may also be observed that the close relations of the deceased would normally not like the real guilty to escape by implicating innocent persons in the crime. Having gone through the evidence of P.Ws. 1, 2, 4 and 5 with due care and caution I do not find any material contradiction and inconsistency which could create doubt about their having seen the occurrence, though there are some discrepancies about their taking the deceased to the hospital or reaching the hospital later after the deceased had already arrived there. But as already observed above, considering that the deceased had been taken away to the hospital on motorcycle it is immaterial whether the witnesses or any of them had gone along or followed him later on bicycle as stated by some of them. It may not be out of place to mention here that one of the witness on the Inquest Report is P.W. 2 Mukesh Sah who claimed to have seen the occurrence.

A vague argument which the counsel did not seriously press may also be noticed at this stage. It was submitted that considering that the occasion was the congregation on account of Mahabiri Jhanda Mela, had the Appellant given knife blows on the deceased it should have given rise to tension because the Appellant and the deceased belonged to different religions. The submission has been noticed only to be rejected. It appears that the motorcycle which was used to carry the injured to the Gopalganj belonged to one Akhtar Mian. Similarly, one of the witness on the fardbeyan was Ali Ahmad. Apparently he had gone to hospital feeling concerned about the welfare of the deceased.

Counsel for the Appellant lastly submitted that in any view of the matter if it is held that the prosecution has proved its case the Appellant should have been convicted u/s 304 of the Penal Code as even according to the prosecution case he had inflicted the knife blows after losing temper, in a fit of anger, and as the Appellant has already remained in jail for more than nine years, after altering his conviction from Section 302 to Section 304 of the Penal Code his sentence could be reduced to the period already undergone.

On behalf of the State Shri Lala Kailash Bihari submitted that having regard to the fact that the Appellant gave two blows to the deceased, once the prosecution case is found to be true the conviction u/s 302 had to be maintained.

Having given my anxious consideration to the above submissions of the counsel I feel inclined to accept the submission of the counsel for the Appellant. No less than the informant himself, P.W. 5, in his fardbeyan stated that after the deceased refused to play the song on the loudspeaker the Appellant lost his temper (Taish Me Aa Kar), and taking out knife inflicted blows on him. P.W. 1 in his evidence stated that on objection of the villagers the deceased stopped playing the song on the loudspeaker, the Appellant boarded the tractor trolley and said that the band party will not be allowed to play tunes, only firm song will be played. This led to exchange of words with the deceased who stated that the villagers had called him on hire and he would act according to their wish and not on the dictate of the Appellant. After hearing this the Appellant lost his temper (Taish Me Aa Gaye) and said that he will teach the deceased lesson. Saying this he took out the knife and inflicted two blows on the deceased''s onest. To the same effect is the evidence of other witnesses.

Exception (1) to Section 300 of Indian Penal Code lays down that culpable homicide is pot murder if the offender, whilst deprived of the power of self-control, as a result of grave and sudden provocation, causes the death of the person who gave the provocation. It is apparent that where the act is committed by the offender in a fit of anger, having lost self-control, it is open to him to take the plea that the act-where it resulted in death of the person-does not amount to murder. It will then have to be seen whether the anger and loss of self control was result of any grave and sudden provocation. The above exception is hedged in by certain provisos. In the facts and circumstances I do not think any of the provisos is applicable. Thus the question to be considered is whether the state of anger or loss of self control was the result of any grave and sudden provocation.

In the instant case, it cannot be said that there was no provocation at all by the deceased. Both the deceased and the Appellant were of young age when the occurrence took place. While the deceased was 18 years old, the age of the Appellant (assessed as 25 years at the time of judgment) was 21 years. Rightly or wrongly he wanted the song of his choice to be played on the loudspeaker but the deceased declined to oblige. This led to exchange of words. In that situation if the Appellant lost his cool and in a fit of anger took out knife and gave blows on the deceased it cannot be said that the case would not be covered by exception 1. It hardly need be pointed out that two persons may not react similarly in the same situation. While one may get angry and lose self control, the other one may not. He may maintain his cool and not react at all.

The evidence on record does not suggest that the Appellant intended to kill the deceased. The evidence rather suggest that he intended to ''teach him lesson''. He thus simply intended to cause him injuries. It is true that two knife blows were inflicted but from the evidence it appears that they were in quick succession. Giving of two blows would not take the case out of Exception and Section 304 of the Penal Code in all cases. That would depend on facts and circumstances. The fact that two injuries were inflicted on the chest make it clear that not only he had knowledge that the injuries were likely to cause death but he also intended to cause such injuries and in that view of the matter, this case would fall u/s 304 Part I. This however would make little difference so far punishment is concerned. Though, it is true, 1st part of Section 304 provides for alternative punishment of imprisonment for life unlike the second part, in appropriate cases the Court may award punishment of imprisonment which may extend to ten years. Considering the age of the Appellant at the relevant time and in the facts and circumstances in which hie committed the crime, I am of the view that sentence of imprisonment extending to the period already undergone by him would serve the ends of justice.

I would accordingly convert the conviction of the Appellant from Section 302 into Section 304 Part I of the Indian Penal Code and award him the sentence of imprisonment for the period already undergone, and accordingly direct the Appellant who is in custody to be released forthwith if not wanted in any other case.

In the result, the appeal is dismissed subject to the modification in the conviction and sentence as mentioned above.

P. N. Yadav, J.

I agree.