1986 Supreme(Pat) 193

HIGH COURT OF PATNA
S. H. S. Abidi, J.
Bisundeo Mishra and 6 Ors. – Appellants
Vs.
The State of Bihar - Respondent
Criminal Appeal No. 391 of 1981
Decided On : 30.5.1986

Headnote:

CRIMINAL APPEAL - Conviction under sections 147 and 302/149 of the Indian Penal Code - Challenge to the findings of the court below - Contention that the prosecution has failed to prove the genesis and immediate cause of the occurrence - Held, that the prosecution has proved the genesis and immediate cause of the occurrence by the evidence of P.W. 1, the injured informant - Contention that the inquest report and O. D. slip of both the hospitals have been withheld - Held, that nothing has come out to show that any prejudice has been caused to the defence - Contention that neither the investigating officer nor Dr. R. P. Sinha, who conducted the post mortem, have been examined in this case and so the prosecution is liable to be thrown out on this ground also - Held, that the non-examination of the investigating officer and the doctor will not make the place of occurrence vague and doubtful if the evidence of the witnesses is such which fixes the place of occurrence - Contention that the trial court has not considered the individual case of the appellants - Held, that the trial court has considered the individual case of the appellants and has convicted them under section 304 Part II of the Indian Penal Code, as it appears that there was no intention to cause death - Appeal dismissed with modification in the sentence.

Fact of the Case:

The prosecution case, in short, is that on 18.5.1974 accused Bishundeo Mishra, Madan Mishra and Satyadeo Mishra attempted to construct house over the land of the informant. This led to the apprehension of breach of the peace. Dafadar Rajab Mian reported the matter at Kuchaikot police station, On the same day at a bout 1 P. M., deceased Shiwadhar Mishra was sitting at his house. In front of the house a road runs from north to south. The appellants Ram Peyar Mishra and Satyadeo Mishra were passing through that road, for going towards south. The informant was sitting at his bungalow which is just in front. From there the informant saw appellant Ram Peyar Mishra registering his protest to the deceased that his brother, being the Mukhiya, had stopped the construction of his house by sending the dafadar to police station. This led to altercation and on hulla the remaining appellants came there armed with lathis and kudals. Appellant Bishundeo Mishra exhorted and gave order to do away with the life of the deceased. Thereupon appellants Satyadeo Mishra and Girdhari Mishra assaulted the deceased by the back portion of the Kudal and the remaining appellants inflicted injuries upon which the deceased fell down on the ground. The informant (P. W. 1) went to the rescue of his brother and he too was, assaulted by Madan Mishra and Kripa Sindhu Mishra by means of lathi. On alarm being raised by the informant, Bhukhal Mishra, Jugati Mishra, Bachcha Mishra and several others arrived there and on their arrival the accused persons fled away.

Finding of the Court:

The factum of death of Shiwadhar Mishra is well proved by the evidence of the witness, namely, P.W. 2 (informant) injured and P. Ws. 2, 3, 5 and also P. W. 7, who has proved the post mortem report. Moreover, even the defence has not challenged the same, so the factum of death cannot be disputed and which has been established by the prosecution. As to the contention about genesis, the evidence of P. W. 1 gives out the immediate cause of occurrence. He has said that at 3. 30 P. M. on the date of occurrence he was at his bathan. Earlier than that at about 8 A. M. the foundation was being dug in plot no. 1082 whose area is 31 kathas and which is homestead in which his share was 1 katha 12 dhurs towards east, whereas the accused had half share towards west. The digging of foundation led to an altercation between the accused and the complainant party. Razak Mian, the dafadar had come and had seen the occurrence and had stopped the digging. Two constables had also come but they were not examined. It was at about 1 P. M. that Rampeyare Mishra and Satyadeo came in the verandah and told to the informant that it was his brother (the deceased) who had got the police brought and got stopped the digging of foundation. This resulted in altercation and then all the accused and Ram Peyare came and assaulted the victim. So P.W. 1 is the best person who has given out the genesis of the occurrence. Though the dafadar and police constables had not been examined, but they were not material witnesses and their examination alone was not necessary to unfold the prosecution case about genesis, specially when P. W. 1 has given full account of the case and origina of mar-pit and further he was the best person to depose about the same. It is not necessary to examine all the persons mentioned in the first information report unless their examination is necessary to unfold the prosecution story and that their examination is duplication of evidence. Because of non-examination of the two persons, it cannot be said that the genesis of the occurrence had not been proved. So the first and second contentions about the genesis are witholding of the witnesses fail.

Issues: 1. Whether the prosecution has failed to prove the genesis and immediate cause of the occurrence? 2. Whether the inquest report and O. D. slip of both the hospitals have been withheld? 3. Whether neither the investigating officer nor Dr. R. P. Sinha, who conducted the post mortem, have been examined in this case and so the prosecution is liable to be thrown out on this ground also? 4. Whether the trial court has not considered the individual case of the appellants?

Ratio Decidendi: 1. The prosecution has proved the genesis and immediate cause of the occurrence by the evidence of P.W. 1, the injured informant. 2. Nothing has come out to show that any prejudice has been caused to the defence. 3. The non-examination of the investigating officer and the doctor will not make the place of occurrence vague and doubtful if the evidence of the witnesses is such which fixes the place of occurrence. 4. The trial court has considered the individual case of the appellants and has convicted them under section 304 Part II of the Indian Penal Code, as it appears that there was no intention to cause death.

Final Decision: Appeal dismissed with modification in the sentence.