Budhuwa Sardar vs State of Bihar

This appeal is directed against the judgment of conviction and order of sentence dated 12.12.94 passed by the learned Additional Sessions Judge, Seraikella in Sessions Trial No. 112/92, whereby and whereunder the learned Sessions Judge held the appellant guilty under Sections 302 IPC and sentenced him to undergo RI for life.

The brief fact leading to this appeal are that on 8.11.91 the deceased Bachcha Sing has left for his paddy fields to guard the harvested paddy lying in the fields situated in Chitrutand of Mauja Ghatkidih, PS Kharsawan. When he did not return till the morning of 9.11.91, the informant Kuso Sardarin and her daughter Durga Mani went in search of the deceased to find him lying in injured condition on the ridge of the paddy field. When they tried to ascertain from the deceased what has happened, he stated before them that appellant Budhwa has assaulted him in the night. He was brought to his house by villagers, PWs 6 and 8 and further given some water and warmth etc to make him conscious. The deceased further disclosed to the witnesses that the appellant has assaulted him because of differences on getting water logged by the appellant in nearby nala for the purpose of fishing, which used to damage the standing paddy crop of the deceased. According to the informant, this has led to this occurrence. As the deceased was an old man, he could not survive and breathed his last within hours.

The police was informed, on which Kharsawan police arrived at the house of the informant, recorded her statement at about 3 PM same day and registered Kharsawan P.S. Case No. 51/91 under Sections 307/302 IPC. The police investigated the case and finally submitted charge sheet against the appellant u/s 302 IPC. The appellant was put on trial after commitment, to which he pleaded not guilty. However after examining the witnesses the trial court held the appellant guilty u/s 302 IPC and convicted and sentenced him as aforesaid.

The present appeal has been preferred on the ground that the trial court has relied upon the so-called dying declaration which has not been proved beyond doubts. The learned Counsel for the appellant has further submitted that the evidence of PWs 1, 3 and 6 on the point of dying declaration should have been discarded keeping in view the condition of the deceased and his age. According to the learned Counsel, the deceased having remained in the field under open sky for whole night on 8/9.11.91, could not in a position to talk and disclose the circumstances in which he might have received the injuries. It was also pointed out that although many villagers were present at the house of the informant, none of them have come to support the prosecution version. The learned Counsel further pointed out that there was no motive apparent on the face of record for the appellant to cause the death for a petty matter like causing water logging near the fields. The learned Counsel further pointed out that even if the prosecution version is relied upon, the appellant has caused only one injury on the deceased. Therefore, the conviction of the appellant is fit to be set aside. Some doubt were also raised regarding the identification of the appellant by the deceased in the night in absence of any source of light. Accordingly, it is submitted that the appellant, who has already remained in custody for more than seven years, may be acquitted of the charges.

We have anxiously considered the submissions made on behalf of the appellant along with materials on record. The prosecution has examined altogether ten witnesses, out of which PW 7, Dr. Radhika Kumar Sinha has conducted the post mortem report on the dead body. She found the single injury, resulting in death of the deceased, on the right cheek and fracture of maxilla bone with bleeding. PW 2 Manjhi Sardar, PW 8, Langri Sardar and PW 9, Dul Singh Sardar have been tendnered by the prosecution. PWs 4 and 5 are witnesses on the inquest report prepared by PW 10, the IO. PW 4 has asserted that the inquest report was prepared in his presence, on which he along with PW 5 has signed as witness. They have further prepared the seizure list of blood stained soil from the PO.

PW 1 Durga Mani, PW 3 Kuso Sardarin and PW 6 Lakhinder Sardar have supported the prosecution case that the deceased Bchcha Singh was found lying injured in the field, from where he was brought to his house by them. They have further asserted that the deceased disclosed before them in the field as well as in the house that he was assaulted by the appellant in the night. They have cross examined at length, in which they repeatedly asserted that the deceased has named the appellant as assailant in their presence. These witnesses have vehemently opposed the suggestion that deceased might have received the injuries found on his body due to fall while moving in the field.

Our attention was drawn towards the fact that many persons of the village named by these witnesses have not been examined in support of the prosecution case as the persons in whose presence last statement was made by the deceased Bchcha Singh in his house. PW 3 has further reiterated that the deceased disclosed the name of appellant twice, in the field and in the house. According to these witnesses, the assault was committed by the appellant out of vengeance as the deceased has objected his getting the water stopped and paddy field water logged earlier. PW 6 has further asserted that in his presence also the deceased has named the appellant as assailant.

PW 10 Sarju Singh, the IO of the case, has arrived at the house of the informant to record her statement, vide Ext. 5, prepared inquest report, vide Ext. 6 and seized flood stained soil and hay, vide Ext. 7. Inquest report further mentions that the deceased has got bleeding injury below the side of his right eyes and two abrasions on right arm and right leg. However, the injury on the right cheek caused by sharp cutting weapon has resulted in death due to haemorrhage and shock.

The learned Counsel for the appellant has tried to convince us that the last statement, on the basis of which PWs 1, 3 and 6 have asserted that the assault on the deceased was made by the appellant, is not acceptable. According to him, the deceased being quite old having remained in whole night outside, may not be in a position to disclose the name of the appellant. However, the learned Counsel could not justify under what circumstances the appellant has been named by PW 3 as the assailant in absence of any disclosure made by the deceased. The consistent version of PWs 1, 3 and 6 cannot be discarded only on the assumption that the deceased may not be in a position to state regarding the circumstances resulting in hi death. It has come on record that he was alive when first time he was found by PWs 1 and 2 in the field and further till he was brought to his home by PWs 6 an 8 for getting him treated inside the house. The evidence available on record is that he was given warmth and water during this period and it is quite natural that he may regain consciousness to disclose the prosecution version regarding assault being made upon him in the night. The witnesses are truthful and deserve to be relied because they have not made any statement having seen the appellant committing assault. In such view of the fact, we find that the prosecution has been able to prove beyond doubt that deceased Bachcha Singh named the appellant as assailant before PWs 1, 2 and 3 when he was able to speak in the morning of 9.11.91.

The defence has not taken any ground that there was no dispute regarding logging of water by the appellant near the field of the deceased. The IO has found harvested paddy in the field of the deceased. All these circumstances further prove that appellant may have some grudge regarding objection raised by the deceased for stopping the wetter resulting in seepage of water in his field. As such, we find that the trial court has rightly convicted the appellant relying upon the last statement of the deceased.

The learned Counsel for the appellant submitted that the injuries found on the deceased do not disclose that the assault was made with intention to cause death or having any knowledge that this single injury may result in death of the deceased. The learned APP submitted that there was a single injury resulting in death of the deceased.

On consideration of the fact mentioned above, we find and hold that the conviction of the appellant u/s 303 IPC is not sustainable. Accordingly the conviction of the appellant and sentenced passed u/s 302 IPC is found not maintainable and set aside. However, the assault made by the appellant has resulted the death of the deceased, as such the appellant is convicted u/s 304 (II) IPC. We further hold that the ends of juice will be served properly if the appellant is sentenced to serve RI for seven years only. Since the appellant has already served the period of sentence for more than seven years in custody before being released on bail in December, 98, he is directed to be released from the liability of bail bonds. In this manner, this appeal is dismissed with modification in sentence.