Krishna Ram vs State Of Bihar And Ors

Heard learned counsel for the appellant.

In the present appeal, the appellant has challenged the judgment dated 06.08.2019 and order dated 08.08.2019 passed by the Fast Track Court No.1, Bhojpur at Ara in Sessions Case Nos. 425 and 727 of 2007 whereby the respondents have been held guilty for the offence under Section 323 of the Indian Penal Code (for short 'IPC').

The grievance of the appellant is that the charges were framed against the respondents under Section 307 of the IPC, but the trial court erroneously convicted them for the lesser offence under Section 323 of the IPC and extended them the benefit of Section 4 of the Probation of Offenders Act.

It has been contended by the learned counsel for the appellant that as per the prosecution case the respondents were armed with baisakhi, danda, farsa, etc. and they assaulted three persons, namely, Sanjay Kumar, Kunti Devi and Sunita Kumari and they all sustained serious injuries, but still the trial court erroneously convicted the accused persons for lesser offence under Section 323 of the IPC.

We have heard learned counsel for the appellant and perused the judgment impugned.

The prosecution case is based on the oral statement of the appellant Krishna Ram. His oral statement was recorded by the Assistant Sub-Inspector of Police Daroga Rai of Sahar Police Station on 04.03.2004 at 4.15 p.m. wherein he had alleged that on that day at 3.00 p.m. when he came out of his house, he saw that his crops were being damaged by the cattle of Ram Bali Ram (Respondent No.2), who was also constructing drain by digging earth with baisakhi. When he protested, Ram Bali Ram attacked upon him with baisakhi. Being scared, he went back inside his house whereupon Ram Bali Ram called his family members and exhorted them to kill him. Thereafter, Ram Bali Ram, Manoj Ram and Gauri Devi being armed with baisakhi, Raju Ram, Dilip Ram, Piyar Ram, Ram Asarey Ram, Bijay Ram and Ramawati Devi being armed with lathi and Sheo Mangal Ram being armed with farsa, forming an unlawful assembly entered inside his house and started assaulting him, his wife Kunti Devi, son Sanjay Kumar and daughter Sunita Kumari and inflicted serious injuries to them. When he went to save them, Ram Bali Ram assaulted him on his head with baisakhi causing serious injuries. He has further alleged that all the assailants assaulted him and his family members with their respective weapons with which they were armed. They left the place considering him dead. Subsequently, several persons came at the place of occurrence whereafter the injured persons were taken to police station and hospital.

The motive attributed for the alleged offence in the FIR is that the accused respondents wanted to take forcible possession of the land belonging to the informant-appellant in respect of which a case was already pending in the court.

On the basis of the aforesaid information, Sahar P.S. Case No. 12 of 2004 dated 04.03.2004 was registered under Sections 147, 148, 149, 448, 323, 307 and 504 of the IPC and investigation was taken up and on completion of investigation, the police submitted charge-sheet before the court.

After taking cognizance of the offence and complying with the mandatory provisions prescribed under Section 207 of the Code of Criminal Procedure, the learned Chief Judicial Magistrate committed the case to the court of Sessions for trial.

The trial court framed charges against the accused persons under Sections 147, 307 and 448 read with 149 of the IPC.

In order to prove charges, the prosecution examined eight witnesses during trial. They are Dhaniya Kuer (P.W.1), Sanjay Ram (P.W.2), Kanti Devi (P.W.3), Sunita Kumari (P.W.4), Ram Bhajan Ram (P.W.5), Krishna Ram (P.W.6), Dr. Bikas Chandra Jain (P.W.7) and Ram Lakhan Ram (P.W.8).

Besides oral testimony of witnesses, the prosecution has also proved the signature of the appellant Krishna Ram (P.W.6) on the fardbeyan, which has been marked as Ext.-1 and injury reports of Sanjay Ram, Krishna Ram and Sunita Kumari, which have been marked as Exts.- 2, 2/1 and 2/2 respectively. The prosecution has also proved the formal FIR, which has been marked as Ext.-4.

The injury reports of the injured witnesses suggest that the victim Sanjay Ram had sustained lacerated wound measuring 1" x ¼" on left parietal region, swelling on left scapular region and one lacerated wound 1" x ¼" over right parietal region. All the injuries caused to him were by hard and blunt substance and were simple in nature. Similarly, the injured Krishna Ram had sustained one lacerated wound measuring 11/1" x ¼" on left parietal region of skull and swelling over left scapular region. The injury caused to him was also by hard and blunt substance and was simple in nature. The injured Sunita Kumari had also sustained one lacerated wound measuring 1½"x ¼" over left parietal region and swelling over left knee joint. Those injuries were also caused by hard and blunt substance and were simple in nature.

P.W.1 Dhaniya Kuer has stated in her examination-in-chief that at the time of occurrence she was grazing goat and when she came to know that mar-pit has taken place, she came to her house and saw that Krishna Ram, Kanti Devi and Sunita Kumari were injured and were taken to hospital. She has admitted that she is not a witness to the occurrence of assault.

P.W.2 Sanjay Ram, P.W.3 Kanti Devi, P.W.4 Sunita Kumari and P.W.6 Krishna Ram have supported the allegation of assault as narrated in the FIR. However, they all have stated that the accused persons indiscriminately assaulted them with the respective weapons with which they were armed with an intention to kill them.

It would be relevant to note here that the injured persons were examined by one Dr. Badri Narayan Singh. However, the said Dr. Badri Narayan Singh has not been examined during trial. The injury reports have been proved by P.W.7 Dr. Bikash Chandra Jain, who has stated in his deposition that Dr. Badri Narayan Singh has died in the year 2009. However, in cross-examination he expressed his inability to disclose the date and place of death of Dr. Badri Narayan Singh. He admitted that he was never posted at Sahar Primary Health Centre. He admitted that he does not know his native place. He has admitted that he has no personal knowledge of what is written in the injury reports. He admitted that he does not know about the places and period of posting of Dr. Badri Narayan Singh.

Having scrutinized the evidences adduced during trial, the trial court came to the finding that the charges under Sections 147 and 448 of the IPC stood proved against the accused persons. However, it was of the view that the charge against the accused persons under Section 307 of the IPC was not established beyond reasonable doubt. However, it held them guilty for the lesser offence under Section 323 of the IPC.

The appellant is mainly aggrieved due to conviction of the accused persons for lesser offence under Section 323 of the IPC in place of the charge under Section 307 of the IPC.

In this regard, it would be pertinent to note that for constituting an offence under Section 307 of the IPC, it is necessary that there must be intention or knowledge to cause murder combined with an act which would fall short of complete commission of that offence. We are mindful of the fact that to justify the conviction under Section 307 of the IPC, it is not essential that bodily injury causing death should have been inflicted.

However, from the evidence on record, it would be evident that though the accused persons were armed with deadly weapon like farsa, baisakhi, danda, lathi, etc. and they are alleged to have indiscriminately assaulted the appellant and his family members, the injury report would suggest that the injured persons had sustained only simple and superfluous injuries. It would appear that the witnesses examined during trial have given exaggerated version of the occurrence of offence.

Apparently, the intention or knowledge, which is necessary to constitute an offence of attempt to murder is not reflected from the act of the accused persons.

It would be evident that the injured persons were unarmed and the accused persons were seven in number. There was no intervening circumstance and had there been an intention to kill the injured persons must have sustained much more grievous injuries.

Regard being had to the evidence on record, if the trial court was of the view that the ingredients of the offence punishable under Section 307 of the IPC were not attracted and it has convicted the respondents for the lesser offence under Section 323 of the IPC, no illegality can be found with such findings under the facts and circumstances of the case.

In that view of the matter, we see no merit in this appeal. It is dismissed, accordingly.