Rashid Mansoori vs State of Bihar

B.N.P. Singh, J.—The sole Appellant suffered conviction u/s 302 of the Indian Penal Code (IPC) for which he was sentenced to suffer rigorous imprisonment for life.

Facts of the case are tell-e-tale Preceding his death, the deceased had a wordy duel with the Appellant simply for this latter asking for Rs. 20/- pursuant to which it was alleged that while the deceased was washing his hand in the courtyard of his house, the Appellant having brought a pointed weapon, pierced in the chest of the deceased who eventually dropped (sic) and with these accusations, fardbeyan and Md. Shamshad, son of the deceased was recorded on 4.4.1991. As usual, a (sic) information report had been drawn up and investigation followed. In course of investigation, Police Officer visited place of occurence, recorded statement of witnesses prepared inquest report over the dead body of the deceased, sent the dead body mortuary fa post mortem examination noticed blood drops at the place of occurence, and on receipt of post mortem port, laid charge sheet before the Court against the Appellant. In the eventual, (sic) that followed, the Stae examined altoged six witnesses, and those examined by State include family members of the ceased, the doctor, the Investigation Officer, who collected evidences, a witness who produced in Court the offending weapon, and also a formal witness who placed on the record, Station diary entry Nos. 64, 65 and 73 dated 4.4.1991 on the record.

Defence of Appellant was denial simpliciter of allegations attributed to him, and it was explicitly pleaded that the deceased suffered injury due to accidental fall on the ground. No evidence was, however, adduced on behalf of the defence. The trial Court, eventually on consideration of evidences, rejecting plea of innocence of the Appellant, rendered finding of guilt and sentenced the Appellant in the manner stated above.

Finding recorded by the Court below was sought to be assailed by the learned Counsel for the Appellant primarily on twin grounds. Firstly it was urged that through one Taimuna Khatoon was residing in the neighbour and there has been evidence also about her arrival at the material of incident, no family member of Taimuna Khatoon was ever examined, and (sic) those examined by the State were only family members of the deceased, entirely to the exclusion of independent witnesses, against whom possibly no eye brows could have been raised. Other plank of argument on behalf of the Appellant was that though the earliest version, the deceased was thrown to have suffered only one blow on Chest, subsequently, embellishments were produced in the statement of the witnesses to suggest even second blow on the thigh of the deceased by the Appellant.

Before we bestow our consideration to the arguments canvassed on behalf of the Appellant, we wish to delve upon the evidences that have been placed on the record. Shamshad (P.W.2) happened to be maker of the fardbeyan, and reiterating his (sic)sion, which he rendered before the Po(sic) at the earliest, stated at trial about the appellate having pierced bhala in the chest of the deceased and repeated the blow causing injury also in the thigh while he was washing,hands in the courtyard and had failed to make payment of Rs. 20/- on his asking. Similar narrations were made also by Sabra Parveen (P.W. 1) too, daughter of the deceased about the Appellant dealing blows twice with lethal weapon on the deceased when he suffered injuries both on chest and thigh on failure of the deceased to make payment of Rs. 20/- on being asked by the Appellant. Now adverting to the evidence of other witness, namely, Hajra Khatoon (P.W. 3), who happened to be wife of the deceased, we notice wife stating that at the material time of incident, while the deceased was taking meal on the verandah of the house, the Appellant came and asked for Rs. 20/-. The deceased told the Appellant that the payment would be made after the accounts were finalised, pursuant to which the Appellant went in the courtyard, abused the deceased and while the deceased was washing his hands in the courtyard, he pierced bhala in his chest, when he dropped dead. The witness also states about other bhala blow given on the thigh of the deceased to which our attention has also been drawn by the learned Counsel for the Appellant, there being no such recitals made in the first information report.

We may also notice the positive finding recorded by the doctor who held autopsy over the dead body of the deceased. Following injuries were noticed by Dr. Atul Kumar Mallik (P.W.4) on the body of the deceased:

(1) One incised punctured wound 1-1/4"x1/2"x2" on the inner aspect of middle of right thigh.

(2) One incised punctured wound 1-1/4"x1/2"x leading to right pleural cavity in the upper part of right side of chest.

Both the injuries, in estimation of the doctor were caused by sharp pointed object. Death of the deceased in opinion of the doctor was due to shock and haemorrhage and injuries were sufficient in ordinary course of nature to cause death.

Anil Kumar Singh (P.W. 5), who happens to be investigating Officer, stated to have recorded fardbeyan of Shamshad Alam, pursuant to which he took up investigation, visited place of occurrence, prepared inquest report, got autopsy held over the dead body of the deceased, recorded statement of witnesses and eventually laid charge sheet before the Court. The place of occurrence, as noticed by the Police Officer was in the courtyard of the house of the deceased which was partitioned by a thatched tatti. The entrance door to the courtyard of the deceased and that of the Appellant is common, and there is a passage for going to the courtyard of the Appellant from the courtyard of the deceased. The Police Officer noticed copius blood at the place of occurrence, though no seizure of blood stained earth appears to have been made by him. The Police Officer, however, stated to have seized offending weapon from a place, east to the house of the Appellant, though it was not stained with blood, for which a seizure memo too was prepared by him. Since the Appellant was absconding, he could not be apprehended.

Now we may refer to the evidence of Sevanand Singh (P.W. 6), who, as we have noticed, simply placed on the record, three station diary entries dated 4.4.1991 about which reference has also come in the evidence of Investigating Officer, that preceding visiting the place of occurrence, he recorded station diary entry before leaving Police Station.

We may now notice some of the arguments canvassed at Bar on behalf of the Appellant. Though narrations made by ocular witness was about Appellant dealing blows twice on the body of the deceased with pointed weapon, recitals made in the first information report admittedly, did not explicitly suggest the Appellant dealing two blows on the deceased. But this fact cannot be lost sight of that if any one was bound with the fardbeyan, it was its maker and not other witnesses. Nothing was placed on the record on behalf of the Appellants that all these witnesses, barring maker of the fardbeyan, had not made parallel statement before the Police about the Appellant dealing blows twice on the deceased with lethal weapon, and that apart it was hardly a mitigating circumstance to militate against bona fide of accusations, attributed to the Appellant about he being assailant of the deceased. We have noticed narrations made by witnesses, who| have stated with all consistencies that shortly after Appellant pierced bhala on the chest of the deceased, he dropped dead in the courtyard. While appreciating other contentions raised at Bar about examination of only family members of the deceased to the exclusion of those, who could have been independent witnesses we may reiterate that if evidence of family members were otherwise credible and did not suffer from blemishes, that did not warrant rejection simply for the reason did the evidence of independent witnesses were wanting on the record. No witness in his evidence was ever explicit that Taimuna Khatoon, a neighbour had witnessed the incident, and hence we find that non-examination of Taimuna Khatoon did not introduce any infirmity in the prosecution version, moreso when family members are found credible. We have noticed that the positive finding recorded by the doctor were quite in conformity with the ocular narration made by witnesses, as the doctor had noticed corresponding injuries in the chest of the deceased, which he found to be sufficient in ordinary course of nature to cause death, and that apart, the Police Officer, who visited the place of occurrence shortly after the incident had noticed blood drops at the place of occurrence. In fact though there was no seizure of blood drops, but offending weapon, which is said to be the instrument by which the deceased was struck, was also seized by the Police Officer from a place, east to the house of the Appellant, and that too corroborates the prosecution version about deceased having suffered injuries at the hands of the Appellant by a piercing weapon. No other points were however raised at Bar which can persuade us to disbelieve the prosecution version and ocular narration given by the witnesses who saw with naked eyes ghastly killing of the deceased in the courtyard of the deceased. Presence of family members at place of occurrence was most probable and they deserve all credence.

However, certain facts of the case deserve consideration. The Appellant on a (sic) petty issue, having got offended, (sic)rced bhala blow in the chest of the deceased. He happened to be none else out the brother of the deceased and they have living in the same house partitioned with a thatched tatti. This fact cannot be lost (sic) of that preceding the incident, there was wordy dual between the deceased and the Appellant when the latter asked for Rs. 20/- from the deceased and it appears to be logical and probable that the Appellant under the heat of passion executed (sic)ig of the deceased who happened to none else but his brother, and that too a petty matter. The prosecution did not have a case that the Appellant came with the remeditation to execute killing of the deceased, as it all happened in heat of (sic)sion after an altercation between the deceased and the Appellant, and in that view of the matter, we are of the view that case of the Appellant squarely falls within mischief of exception 4 of Section 300 of the Indian Penal Code.

It has been brought to our notice that the Appellant has remained in custody for more than ten years and in that view of the matter, regard being had to the attending circumstances of the case, while convicting him u/s 304 Part II of the Indian Penal Code, we sentence him to the period already undergone, and with this modification in the judgment of conviction and order of sentence, this appeal is dismissed. The Appellant who, by order of this Court was directed to be released on bail, is discharged from the liability of the bail bonds.

S.N. Jha, J.

I agree.