Nawal Kapar vs The State of Bihar

Anjana Prakash, J.—The appellant has been convicted in Sessions Trial No. 60 of 1991/77 of 1997 by the 3rd Additional Sessions Judge, Sitamarhi by a judgment dated 29.9.2001 u/s 307 I.P.C. and sentenced to R.I. for seven years as also a fine of Rs. 1000/- in default of which further R.I. for one year. The case of the prosecution is that on 29.12.1990 the mother of the appellant came to Deo Narain Kapar (P.W.4) and asked him to admonish her son i.e. the appellant. When he went there, the appellant became enraged and assaulted P.W.4. When his son injured Ashok Kapar (P.W.5) came there and attempted to intervene, the appellant became further enraged and assaulted him with a chhura on the chest.

During trial the prosecution examined fifteen witnesses in all. Out of whom, P.W.5 Ashok Kapar is the alleged victim, whereas P.W.6 Tetari Devi is the Informant and the mother of P.W.5. P.W.4 Deo Narain Kapar is the father of the victim, whereas P.W.3 Bhikhari Rai and P.W.8 Vijay Kapar are further supporting eye witnesses of the occurrence. P.W.7 Feku Prasad Singh and P.W.2 Bindeshwar Ram are also witnesses on the factum of the occurrence. P.W.1 Ramashish Ram is the Chaukidar, who claimed to have reached the place of occurrence and apprehended the appellant Nawal Kapar and handed him over to the police. P.W.9 Ramchandra Singh, P.W.10 Rudal Ram, P.W.11 Ram Chandra Kapar S/o. Laxman Kapar and P.W.12 another Ram Chandra Kapar S/o. Parmeshwar Kapar have been declared hostile, whereas P.W.13 Dhanai Kapar and P.W.14 Most. Lukshminia have been tendered. P.W.15 Dr. Birendra Kumar Singh has proved the injury report of P.W.5 and P.W.4. The Investigating Officer has not been examined in the present case.

During trial P.W.5, the main injured, stated that at about 7-8 P.M. when he along with his parents were present in his house, the mother of appellant Nawal Kapar requested his father to admonish her son i.e. the appellant, at which he went to her house. He then learnt that Nawal Kapar was assaulting his father, so he rushed to the door of the accused where he found that the appellant had felled down his father on the ground and when he protested the appellant brought a chhura from his house and assaulted him, on account of which he fell unconscious. He stated that he was injured on a vital part i.e. chest and that the appellant had assaulted him with intent to cause his death. P.W.5 Ashok Kapar has been supported by P.W.4 Deo Narain Kapar, his father on all material particulars. Similar is the evidence of P.W.6 Tetari Devi, the mother of the injured. Similarly the evidence of P.W.3 and P.W.8 also corroborates the prosecution case. P.W.7 and P.W.2 even though not eye witnesses have proved the factum of the occurrence and their evidence appears to be unshaken. Further the Chaukidar, who apprehended appellant Nawal Kapar at the place of occurrence, appears to have given a very truthful version of the same. The doctor P.W.15 on examination of P.W.5 confirmed that he had sustained an injury pleural deep on the chest caused by sharp pointed weapon, whereas simple injuries were found on the person of P.W.4 Deo Narain Kapar.

The Counsel for the appellant submits that on an analysis of evidence there are major contradictions where the manner of occurrence and the place of occurrence are concerned and, therefore, the appellant deserves to be acquitted. The further submission is that in the absence of examination of the Investigating Officer, which alone is the objective evidence, the prosecution case is not fit to be relied upon.

On a close examination of the evidence of the witnesses and the contradictions contained therein, I find that they are very minor in nature, which does not shake the credibility of the witnesses. However, the important point in this case is also as to whether an offence u/s 307 I.P.C. is made out inasmuch as the manner of occurrence which has been narrated reveals that the appellant had brought out a chhura after the initial altercation and assaulted P.W.5, meaning thereby that the assault on him was caused suddenly without any premeditation. Further it also appears that a single blow had been dealt. Even though the injury may have been given on vital portion the manner in which the occurrence took place, in my opinion, would not prove the prosecution case to the extent that the appellant had the intent to cause the death of P.W.5. However, since serious injuries had been caused by him, I would be of the opinion that the offence punishable u/s 326 I.P.C. is made out in the facts of the case. Hence, the appeal is dismissed but the conviction is modified to one u/s 326 I.P.C. and sentence is to the one which has already been undergone i.e. the period of over two years. The appellant is further directed to pay a sum of Rs. 5000/- to the injured/his legal heirs within a period of eight weeks from the date of receipt of this judgment. In case he fails to do so, he is liable for further punishment for a period of one and half years.