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2006 Supreme(Pat) 992
PATNA HIGH COURT
Chandramauli Kumar Prasad, J.
Shankar Sah
Versus
State Of Bihar
Criminal Appeal No. 122 of 2001 ;
Decided On : NOVEMBER 03, 2006
Headnote:Indian Penal Code, 1860-Section 302/149-Murder-Common object-Every culpable homicide is not murder and for bringing it within the mischief of murder, any of the clauses of Section 300 IPC is to be satisfied-In the present case, only the bottom portion of the bhala having been used in commission of the crime and only a single blow given, it can be safely inferred that the accused did not assault the deceased with the intention of causing death or causing such bodily injury likely to cause death and it also cannot be said that the accused knew the act done to be so eminently dangerous that it must in all probability caused death-None of the clauses of Section 300 attracted and hence no offence u/s 302 IPC made out-However, the assailant had the knowledge that the act done was likely to cause death and other accused persons shared the common object-Section 304 Part II IPC attracted and the every accused is guilty with the aid of Section 149 IPC-Sentence reduced. (Paras 29 to 33)
Code of Criminal Procedure, 1973-Sections 293(4) & 294 r/w Section 302 of IPC-Postmortem report not proved-the doctors conducts the postmortem examination in ordinary course of business-The where about of the doctor conducting the postmortem being unknown, his evidence was not possible to be either procured or procured without an amount of delay-Such postmortem report is admissible in evidence and it can be looked into to ascertain the cause of death. (Paras 24, 25, 26)
2006 Cr. L.J 2526, 1997(2) PLJR 245, AIR 1995 SC 2452, AIR 1958 SC 465-Referred to.
Chandramauli Kr.Prasad, J.
1. Appellants, being aggrieved by and dissatisfied with the judgment and order dated 7-2-2001 passed by the 1st Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No. 476 of 1984, have preferred this appeal.
2. Appellant No. 6-Sri Narayan, by the said judgment has been found guilty of offence under Secs. 148 and 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and life respectively, while rest of the appellants have been found guilty of offence under Secs. 147, 323 and 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year, three months and life respectively.
3. According to the First Information Report lodged by Janak Sah (P.W. 5) on 24-6-1982 at 11 a.m. at Sadar Hospital, Motihari, the case of the prosecution is that a day prior to the incident, exchange of hot words took place between his family and that of appellant No. 2-Mangar Sah and on account thereof, on 24-8-1982 at about 9 a.m., all the appellants armed with lathi, bhala and garasa came to his Darwaja and appellant No. 2-Mangar Sah ordered to kill, whereupon appellant No. 6-Sri Narayan Singh assaulted his son Bhola Sah (deceased) by bhala on his head and he fell down. According to the report, informant, his son Babu Lal (P.W. 3) and his mother Ramrati rushed to save him, but the appellants also assaulted them by lathi. On account of injury caused by the appellants, Ramrati fell down and became unconscious. Informant had alleged that in the occurrence he had sustained injuries on his head and right hand, whereas his son Babu Lal in his thigh, back and temple, by lathi.
4. According to the informant, seeing the occurrence villagers collected and pacified the situation and finding his son and mother unconscious, appellants fled away from the place of occurrence. Thereafter injured Bhola Sah was brought to Sadar Hospital for treatment, where the informant gave the statement to the Assistant Sub-Inspector of Police about the incident. On that basis, Motihari Town (Chhatauni) P.S. Case No. 161 of 1982 was registered under Secs. 147, 148, 149, 323, 324, 307, 379 and 447 of the Indian Penal Code, 1860 . Later on Bhola Sah died and, accordingly sec. 302 of the Indian Penal Code was added.
5. Police after investigation submitted charge-sheet against the appellants and they were ultimately committed to the Court of Sessions to face trial, where all of them were charged for voluntarily causing hurt to Babu Lal (P.W. 3), Ramrati Devi and informant Janak Sah (P.W. 5), punishable u/s. 323 of the Indian Penal Code. All the appellants, excepting appellant-Sri Narayan Singh, have been charged also for causing the death of Bhola Sah as a member of unlawful assembly in prosecution of common object, punishable under Sections 302/149 of the Indian Penal Code as also for rioting, punishable under Section 147 of the Indian Penal Code, 1860 . Appellant No. 6-Sri Narayan Singh has further been charged for committing the offence of rioting with deadly weapon, punishable under sec. 148 of the Indian Penal Code and for intentionally causing the death of Bhola Sah, punishable u/s. 302 of the Indian Penal Code, 1860 .
6. Appellants pleaded not guilty and claimed to be tried.
7. Prosecution in support of its case had altogether examined eight witnesses. P.W. 1 Lal Jhari, P.W. 3 Babu Lal and P.W. 5 Janak Sah claim to be the eye-witnesses to the occurrence. P.W. 3 Babu Lal is the son of the informant and brother of the deceased, whereas P.W. 5 Janak Sah happens to be the father of the deceased. P.W. 2 Chhathiya alias Sugiya has been declared hostile. P.W. 4 Yogendra Prasad is the witness to the seizure list of blood-stained earth, whereas P.W. 6 Ram Nath Singh, at the relevant time, was an Assistant Sub-Inspector of Police, who had drawn the formal First Information Report, proved the fard beyan and inquest re-port and had also investigated the case. P.W. 7 Ram Chandra
