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2017 Supreme(Pat) 715
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAKESH KUMAR, MOHIT KUMAR SHAH, JJ.
Gauri Rai - Appellants
Versus
The State of Bihar - Respondent
Criminal Appeal (DB) No. 371 of 1993
Decided On : 29-06-2017
Important Points
Subject
Criminal Law - Assault and Homicide
Act Referred
Headnote
I.P.C. - Conviction under Sections 302/34, 452 and 323 - Summary of Acts and Sections: Indian Penal Code, Sections 302/34, 452, 323, 148, and 147 - The court altered the conviction from Section 302/34 to Section 304 Part II read with Section 34 of the Indian Penal Code based on the lack of intention to kill the deceased, as evidenced by the nature of the injuries and the weapons used.
Fact of the Case:
The case involved the assault and subsequent death of Sonelal Rai, for which six appellants were convicted under various sections of the Indian Penal Code. The incident occurred in 1991 when the appellants assaulted Sonelal Rai and other family members, leading to his death.
Finding of the Court:
The court found the appellants guilty of various offenses, including Sections 302/34, 452, and 323 of the Indian Penal Code. However, based on the nature of the injuries and the weapons used, the court altered the conviction from Section 302/34 to Section 304 Part II read with Section 34 of the Indian Penal Code.
Issues: The main issue was whether the evidence supported the conviction under Section 302/34 of the Indian Penal Code, considering the lack of intention to kill the deceased.
Ratio Decidendi: The court's decision to alter the conviction was based on the consistent evidence that the accused did not use the sharp portions of their weapons and the lack of injuries on vital parts of the deceased's body, indicating no intention to cause death.
Final Decision: The appeal was dismissed with the modification of the conviction from Section 302/34 to Section 304 Part II read with Section 34 of the Indian Penal Code. The appellants were directed to surrender for imprisonment.
For the Appellant : Mr. Avanindra Kumar Jha, Amicus Curiae
For the Respondent: Mr. Ajay Mishra, A.P.P.
RAKESH KUMAR, J.
1. The present appeal was preferred against judgment of conviction and sentence dated 28th July, 1993 passed in Sessions Trial No. 103 of 1992/21 of 1992 by Sri Chakradhar Rai, learned 1st Additional Sessions Judge, Samastipur (hereinafter referred to as ‘Addl. Sessions Judge’). By the said judgment, all the six appellants namely Gauri Rai (appellant no. 1), Heman Rai (appellant no. 2), Laxman Rai (appellant no. 3), Birjee Rai (appellant no. 4), Dulli Rai (appellant no. 5) and Gena Rai (appellant no. 6) were held guilty for offence under Sections 302/34, 452 and 323 of the Indian Penal Code (hereinafter referred to as ‘I.P.C.’). The appellant nos. 4 & 5 were further held guilty for offence under Section 148 of the I.P.C., whereas, appellant no. 6 (Gena Rai), appellant no. 1 (Gauri Rai), appellant no. 2 (Heman Rai) and appellant no. 3 (Laxman Rai) were further held guilty for offence under Section 147 of the I.P.C. All the appellants were sentenced to undergo rigorous imprisonment for life for offence under Sections 302/34 of the I.P.C., 7 years rigorous imprisonment for offence under Section 452 of the I.P.C. and one year rigorous imprisonment for offence under Section 323 of the I.P.C. The appellant no. 4 and 5 Birjee Rai and Dulli Rai respectively were further sentenced to undergo rigorous imprisonment for three years under Section 148 of the I.P.C., whereas, appellant no. 6 (Gena Rai), appellant no. 1 (Gauri Rai), appellant no. 2 (Heman Rai) and appellant no. 3 (Laxman Rai) were further sentenced to undergo rigorous imprisonment for two years for offence under Section 147 of the I.P.C. The Court directed that all the sentences shall run concurrently.
2. The appeal was admitted on 26-08-1993 and all the appellants were directed to be released on bail by the said order. While the matter was listed under the heading “For Hearing” on first occasion i.e. 25-05-2017, there was non-appearance on behalf of appellants. Thereafter, again on 23-06-2017, there was non appearance and therefore, considering the fact that appeal was pertaining to the year 1993, it was felt necessary not to defer the matter and as such, Court requested Sri Avanindra Kumar Jha, learned counsel to assist the Court as Amicus Curiae and as such, by order dated 23-06-2017, he was appointed as Amicus Curiae and matter was heard. Sri Ajay Mishra has appeared as Addl. Public Prosecutor for the State. The matter was partly heard on 23-06-2017 and further it was heard today.
3. Short fact of the case is that on 12-06-1991 at about 8:40 A.M., fardbeyan of one Ram Dulari Devi, wife of deceased Sonelal Rai was recorded at Primary Health Centre, Patori. In her fardbeyan, she stated that on the same date in the morning, her husband at about 5:30 A.M. had left for easing in a field. Thereafter, at about 5:45 A.M., she heard cry of her husband. Thereafter, she alongwith her son Rajendra Rai proceeded towards her husband and saw that her husband had fallen in the maize field of Munshi Saw and crying. He was surrounded by his co-villagers namely Gena Rai (appellant no. 6), Gauri Rai (appellant no. 1), Heman Rai (appellant no. 2), Laxman Rai (appellant no. 3), Birjee Rai (appellant no. 4) and Dulli Rai (appellant no. 5). They were mercilessly beating her husband. When she tried to save her husband, the accused persons proceeded to assault her also and as such, her son fled away. However, she laid her body on her husband. Thereafter, accused Gena Rai (appellant – 6) gave her lathi blow. However, due to fear of the accused persons, other co-villagers did not interfere. In the meanwhile, her husband tried to flee away to his house in injured condition, he was again chased by aforesaid accused persons and caught him near his house and accused persons, with an intent to kill her husband, assaulted him with lathi, bhala and farsa. The accused persons also entered into the house of her Gotini (wife of husband’s brother) Dhanwa Devi and Gotini Basmati Devi and
