Sakaldeo Sahni vs State of Bihar

M.L. Visa and B.K. Jha, JJ.—Being aggrieved by the judgment dated 15.6.95 and order dated 16.6.95 of 1st Additional Sessions Judge, Muzaffarpur, passed in Sessions Trial No. 98/93 convicting and sentencing him to undergo imprisonment for life u/s 302 of the Indian Penal Code (in short, IPC) the Appellant has preferred the present appeal.

Case of prosecution as disclosed by the fardbeyan of Nanho Sahni, the deceased, recorded on 7.2.92 at 00.15 O''clock by S.I. Vidya Nath Singh (not examined) at S.K. Medical College and Hospital, Muzaffarpur, in short, is that the deceased had hired a rickshaw of the son of Appellant on 5.2.92 @ Rs. 50/- per day for going to his ''Sasural'' for bringing his wife and he returned to his village on 6.2.92 at 8 PM and after his return he came to know that Appellant was abusing him and his family members in his absence. The deceased proceeded to the house of Appellant for inquiry that why he had abused. When the deceased reached near the ''Darwaja'' of Triveni Sahni (P.W. 3), the Appellant came there and started abusing him and demanded a sum of Rs. 100/- as rickshaw fare and on giving assurance by the deceased that he would pay that amount later on, the Appellant continued abusing him and thereafter took out a dagger from his waist and gave dagger blow on the abdomen of the deceased. The deceased after receiving injury fell down and when his brother Suresh Sahni (P.W. 4) and father Dharikshan Sahni (P.W. 5) came for his rescue they were also assaulted with slaps by the Appellant. Neighbours came there and rescued the deceased from further assault. On the basis of fardbeyan of deceased a case under Sections, 341/323/324/307 IPC was registered against the Appellant. Later on when the deceased succumbed to injuries Section 302 IPC was added to the case. Police after investigation submitted chargesheet against the Appellant and after taking cognizance case was committed to the Court of Sessions where charges under Sections 302/323 IPC were framed against the Appellant. The Appellant denied the charges. The case of the Appellant as it appears from his examination u/s 313 Code of Criminal Procedure and trend of cross examination of prosecution witnesses is that at the time of occurrence the deceased had assaulted him with an iron rod on his head and thereafter when the deceased tried to run away from the place of occurrence he fell down on pointed bamboo sticks and he might have received some injuries by his fall. One witness was examined on behalf of the Appellant.

After trial the Court below found the Appellant guilty u/s 302 IPC and accordingly convicted and sentenced him. The Appellant, however, was not found guilty u/s 323 IPC for causing hurt to Suresh Sahni and Dharikshan Sahni and he was acquitted of this charge.

Prosecution examined 9 witnesses in order to prove its case. Parmanand Thakur (P.W. 9) is a formal witness who has proved fardbeyan (Ext. 4) and formal FIR (Ext. 5). Pakauri Lai Sahni (P.W. 6) is also a formal witness who has proved his signature (Ext. 1) on inquest report. Ram Tiwary (P.W. 8) another formal witness (sic) proved the inquest report (Ext. 3). Mu(sic) Ahmad (P.W. 7) is the doctor who had (sic) post mortem examination on the dead body of deceased and he in his evidence he stated that besides one incised would (sic) which was due to surgical interference (sic) found one stab wound slip shaped 1th (sic) 0.25" into internal cavity deep with cl(sic) cut edge and on dissection he found (sic) stitch in a portion of pelvic colon. (sic) injury was caused by a sharp cut(sic) weapon like ''chchura'' and time elap(sic) since death was within 18 to 36 hours for (sic) the time of post mortem examination (sic) was 3.30 PM on 8.2.92. About the case death he has said that deceased dle(sic) to shock and hameorrhage caused (sic) the injuries found on the body of dec(sic) He has proved the post mortem examination report (Ext. 2).

Dahaur Sahni (P.W. 1), Asharfi Sahni (P.W. 2),Triveni Sahni (P.W. 3), Suresh Sahni (P.W. 4) and Dharikshan Sahni (P.W. 5) (sic) said to be the eye witnesses to the occurence and they all have said that Appellant inflicted dagger injuries on the abdomen deceased. Their evidence coupled with (sic) evidence of P.W. 7 fully supports the case of prosecution that Appellant had infi(sic) dagger injury on the abdomen of deceased which resulted into his death.

As stated above P.Ws. 1 to 5 (sic) are eye witnesses to the occurrence, (sic) said that Appellant had inflicted dag(sic) injury on the abdomen of deceased. They have further stated that some dispute are between the Appellant and deceased (sic) the point of rickshaw fare which was (sic) with the deceased and Appellant was (sic) manding that from him. P.W. 2 in para (sic) his evidence has stated that a ''mar-pir(sic) taken place between Appellant and deceased. Similarly P.W. 3 in his evidence (sic) that a dispute arose when deceased (sic) that he would pay rickshaw fare later (sic).

The case of Appellant is that at the occurrence deceased had assaulted with an iron rod causing injury on his (sic). The records of lower Court show that (sic) Appellant after arrest was produced (sic) CJM, Muzaffarpur, on 7.2.92 he had (sic) on his head and he at that time had stated that in scuffle he received that injury (sic)d jail doctor was directed to take steps (sic) better treatment of injury of Appellant.

P.W. 4 Suresh Sahni who is brother deceased in para-5 of his cross examination has admitted that at the time of occurrence he had seen the injury on the (sic)ead of Appellant but he has said that Appellant received this injury when he was (sic)ntering his house. P.W. 5 who is the father (sic) deceased has admitted in para-9 of his cross examination that Appellant had received injury on his head but he has said that this injury was caused when he was (sic)intering the house.

The fact that when Appellant was produced before the Court below, it had been injury on the head of Appellants, admission of P. Ws. 4 and 5 that they had seen injury on the head of Appellant, their evidence that an altercation between the Appellant and deceased took place on the (sic) of rickshaw fare, all these show that Appellant inflicted dagger blow on the body deceased in the heat of passion and his on was not premeditated specially in (sic) of the fact that deceased himself had (sic) to the house of Appellant. The evidence on record does not show that the Appellant had any intention to cause death deceased or to cause such bodily injury (sic) was likely to cause death. But at the (sic) time Appellant was armed with a (sic)ger and although he gave only one (sic) by dagger but since it was given on abdomen the Appellant must have the knowledge that his act was likely to cause death. So we find that this case comes within the purview of Part II of Section 304 IPC.

Learned Counsel appearing on behalf of the Appellant has argued that the I.O. of this case has not been examined and therefore, the Appellant could not be able to bring on record the contradiction in the evidence of some witnesses in Court and their earlier statements made before the investigating officer although the attention of some witnesses has been drawn towards some such contradictions.

It is true that Manoj Kumar Gupta (D.W. 1) has proved some paragraphs of case diary which are marked Ext. B to B/5 but on comparison of these paragraphs with the relevant portions of evidence of some witnesses we do not find that there is any contradiction in the evidence of these witnesses and their earlier statements made before the investigating officer. We fully agree with the finding of the Court below on this point.

After considering the materials on record as we have come to the conclusion that this case falls in the category of Part-II of Section 304 IPC the sentence of Appellant is reduced to rigorous imprisonment for 10 years from imprisonment for life. With this modification in the conviction and sentence, this appeal is dismissed.

As the Appellant is in jail custody since 7.2.92 he is ordered to be released forthwith if not wanted in any other case.