Nara Paharia and Jalia Paharia vs The State of Bihar

M.Y. Eqbal, J.—This appeal by the appellant is directed against the judgment dated 29th April, 1991 and 1st May 1991 passed by

Additional Sessions Judge, Pakur in Sessions Case No. 70 of 1990/04 of 1991 whereby the appellants have been convicted for the offence u/s

302/34 I.P.C. and sentenced to undergo R.I. for life.

The accused/appellants are Nara Paharia and Jalia Paharia. The deceased who has been killed is named Babna Paharia. The informant is the

brother of the deceased namely, Nara Paharia. The date of occurrence is 21.07.1989 near about 7 P.M.

The Prosecution case inter alia is that on the date of occurrence in the evening, the brother of the informant Babna Paharia returned to his house

from the village Kaligodda alongwith the meat of Hog. Accused Nara Paharia and Jalia Paharia were sitting by the side of his house. As soon as

the deceased reached near the house, the accused persons started assaulting his brother Babna Paharia by means of lathi. When the informant tried

to save his brother, the accused persons ran to assault him also. As a result of lathi blows, the deceased fell down on ground at the door and

became senseless. The villagers and the informant brought the deceased to his house and made attempts to revive his senses. Next day they made

attempts again but the deceased died at about 3 P.M. The informat went to the police station and gave statement on which police registered a case

u/s 302/34 I.P.C. against the accused persons namely, Nara Paharia and Jalia Paharia to submit charge sheet u/s 302/34 I.P.C. A.C.J.M. Pakur

took cognizance and committed the case to the court of Session for disposal.

On the basis of the evidence of the eyewitness and the post-mortem report, the court below recorded a finding that the prosecution has

established the case beyond all reasonable doubt. Accordingly, the accused persons were convicted u/s 302/34 I.P.C. and sentenced to undergo

R.I. for life.

Mr. Uday Choudhary learned Counsel appearing for the appellants assailed the impugned judgment as being illegal, erroneous and contrary to

facts and evidence on record. Learned Counsel submitted that most of the prosecution witnesses are family members of the deceased. Hence, their

evidence cannot be relied upon. It is contended that neither motive nor the genesis of occurrence has not been proved. Learned Counsel submitted

that there is unexplained delay in lodging F.I.R., intention to cause death has not been established. Learned Counsel lastly submitted that in any

view of the matter, it is a fit case where appellant may be convicted under Part II of Section 304 I.P.C. only.

The prosecution has examined altogether seven witnesses including the Doctor and the I.O. P.W.1 Jalo Paharia is the eye witness of the

occurrence who has stated that after hearing hulla, he went to the place of occurrence to see the accused persons assaulting deceased Babna

Paharia by Lathi and deceased died due to such. He further deposed that while accused persons were assaulting the deceased, he rushed to place

of occurrence to prevent them but they did not listen to him. P.W.2 Rani Paharia is the wife of the deceased who also deposed that accused

persons have murdered his husband by means of lathi. She further stated that the occurrence took place in the evening, when the accused persons

were assaulting the deceased, she wanted to save her husband but the accused ran to assault her. Because of the assault, her husband (deceased)

fell down on the ground and sustained grievous injuries and on the next day he died. She identified the accused persons in the dock. P.W.3 Gondi

Paharia has stated in her deposition that on the date of occurrence she was in her house and after hearing hulla, she came out and found that

accused persons had assaulted the deceased by means of lathi due to which the deceased fell down on the ground. The informant brought the

injured to his house. She also identified the accused persons in the dock. P.W.4 is Chandni Paharia, who deposed that the accused persons had

assaulted the deceased by means of Lathi. She also identified the accused persons. So far these witnesses are concerned, although cross-examined

but no discrepancy occurred in their evidence.

The informant was examined as P.W.5. He narrated the entire facts and stated that when he tried to save his brother (deceased), the accused

persons ran to assault him, then he fled away out of fear. He also identified the accused persons in the dock. The informant was cross-examined at

length but nothing has been found in his statement except minor contradiction. P.W.6 Ramsumiran Sharma is the Investigating Officer who

conducted investigation. He prepared inquest report of the deceased and recorded the statement of the informant. He further described the place

of occurrence situated in the village Jalokunia near Palm tree by the side of the house of Babna Paharia. He had proved all the documents. P.W.7

is the Doctor who conducted postmortem of the deceased. According to the Doctor''s opinion, cause of death was due to head injury resulting in

massive internal hemorrhage and shock.

As noticed above, P.W.1, 2, 4 and 5 are eyewitnesses to the occurrence and no major contradiction was found in their evidences while they

were cross-examined. Evidence of these witnesses coupled with evidence of the Investing Officer and the Doctor, commission of offence by the

appellant have been proved and they have rightly been convicted by the trial court. Now the only question that falls for consideration is as to

whether in the light of the facts and evidence on record, the conviction and sentence for life imprisonment deserved to be confirmed.

It is well settled that of murder is culpable homicide but all culpable homicide is not murder. In the case of State of A.P. v. Rayavarapu

Punnayya (1976) SCC 659, the Supreme Court observed that for the purpose of fixing punishment proportionate to the gravity of culpable

homicide, the code particularly recognizes three degrees of culpable homicide. First is, what may be called culpable homicide of the first degree.

This is the gravest for of culpable homicide, which is defined in Section 300 as ''murder''. The second may be termed as ''culpable homicide of

second degree. This is punishable under the first part of Section 304. Then, there is, culpable homicide of third degree. This is the lowest type of

culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide

of this degree is punishable under the second part of Section 304.

In the instant case, the proved facts are that the appellants assaulted the deceased with Lathi and fled away. The deceased having sustained

head injury fell down on the ground and became senseless.

The prosecution case is that after the deceased fell down, he remained on the ground in senseless condition for some time and, thereafter, brought

to his brother''s house where attempts have been made for reviving his sense. The informant on the next day made further attempts to revive his

brother who did not regain sense and died at 3 P.M. There is neither evidence nor any material to show that any medical aid was given to the

injured after the assault till he died. Had there been medical treatment, the deceased would have regained his sense. This part of evidence shows

that the accused persons have even thought that the act done by them would have resulted to such a position that the deceased might have died. If

the accused persons ever intended to kill the deceased, they would have assaulted the deceased by giving repeated Lathi blows till his death. In

our considered opinion, therefore, the offence has to be brought down from first degree of murder to the culpable homicide not amounting to

murder. It is, therefore, a fit case where the conviction needs to be altered from Section 302 I.P.C. to Section 304 Part II I.P.C.

We, therefore, alter the conviction and sentence from Section 302 I.P.C. to Section 304 part II I.P.C. and sentence the appellants to undergo

R.I. for 10 years u/s 304 part II I.P.C.

With the aforesaid modification in the order of conviction and sentence this appeal stands disposed of.

The appellants are on bail. Their bail bonds are cancelled.

The trial court is directed to ensure their arrest to serve out the remaining part of the sentence.

D.P. Singh, J.

I agree.