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Judgment
V.N. Sinha, J.—Instant appeal is directed against the Judgment/Order dated 4, 6.8.2008 passed in Sessions Trial Case No. 48 of 2007 by the Additional Sessions Judge, Fast Track Court No. VI, Saharsa, whereunder the sole appellant has been convicted for the offence u/s 302 read with 34 of the Penal Code and sentenced to undergo imprisonment for life as also to pay fine of Rs. 21000/-, in default of payment of fine to further undergo simple imprisonment for two years. Prosecution case as mentioned in the fardbyan of the informant, Md. Tabrej Alam (P.W. 2), recorded by Sub Inspector, Alok Kumar (P.W. 7) of Saharsa Sadar P.S. at Saharsa Sadar Hospital on 28.3.2006 at about 4.30 P.M. is that on 28.3.2006, the informant alongwith his friends, Jaffar Iqbal (P.W. 1) and the deceased, Md. Wasim Ansari, all residents of Mohalla-Mir Tola, P.S. and District-Saharsa, had come to Zila School, Saharsa, the Examination Centre at about 3.45 P.M., where the sister of informant, P.W. 1 and girl student of Md. Wasim were appearing in the Matriculation Examination, to escort them back home as also to ascertain the chance of success in the paper. When they reached the Centre, saw few boys having climbed the wall of the Centre teasing the girl examinees. Wasim forbade those boys, which resulted in quarrel between him and the boys. Other guardians present at the Centre intervened and pacified the matter. Appellant was amongst the boys teasing the girls, threatened Wasim that he shall teach him lesson, when he will come out of the Centre. The examination got over at 4.00 P.M., the informant alongwith Jaffar Iqbal, Wasim and sisters came out of the Centre reached the main road near Government Girls High School, 15-20 boys including the appellant, Sankar Das and Chhotu Singh chased, apprehended them. The informant and Jaffar Iqbal somehow managed to escape but Wasim was caught by the three who made him lie on his belly, Chhotu Singh, Sankar Das caught his legs, hands respectively then the appellant, assaulted him with dagger on his back. After the assault, appellant, his two accomplice escaped towards Women College leaving Wasim on the road side in injured condition. Thereafter, the informant, his friend, Jaffar Iqbal, came to the injured and took him for treatment to the Sadar Hospital, where he died during treatment.
In the light of the fardbyan dated 28.03.2006 of the informant, Md. Tabrej Alam, Ext. 3, Saharsa Sadar P.S. Case No. 109 of 2006 was registered the same evening at about 6 P.M. under Sections 302 /34 of the Penal Code by the Officer Incharge, Sadar P.S., the investigation was entrusted to S.I., Alok Kumar (P.W. 7). After recording the fardbyan, Investigating Officer examined the dead body, prepared the inquest report (Ext. 4) and then sent the dead body for post-mortem under challan (Ext. 5). Having sent the dead body for post-mortem examination, Investigating Officer recorded the statement of the informant and other prosecution witnesses. After collecting the post-mortem report (Ext. 2) submitted chargesheet recommending trial of the appellant and his two accomplice. It appears, the trial of the two accomplice was separated on the ground that they were juvenile on the date of occurrence. In the light of the chargesheet, cognizance was taken and after supply of police papers to the appellant case was committed to the court of sessions.
During Trial, prosecution examined eight witnesses, namely, Md. Jaffar Iqbal (P.W. 1), Md. Tabrej Alam (P.W. 2), the informant of the case, Md. Arshad (P.W. 3), Md. Zaffar (P.W. 4), the brother of the deceased, Dr. Sachida Nand Rai (P.W. 5), Medical Officer, Sadar Hospital, who was Observer at the time of post-mortem conducted by Dr. Kazim Asgar, Dr. Binay Kumar Singh (P.W. 6), on the date of post-mortem, he was also serving in the Sadar Hospital, Saharsa, and was another Observer at the time of post-mortem of the dead body of the deceased, Alok Kumar (P.W. 7), the Investigating Officer of the case, Shamima Khatoon (P.W. 8), the mother of the deceased.
Before considering the submissions raised by the counsel for the parties, it is necessary to consider the evidence of the prosecution witnesses.
P.W. 1, Md. Jaffar Iqbal, has stated in his evidence that occurrence has taken place on 28.3.2006 at about 3.45 P.M. when P.W. 1 and Md. Tabrej Alam (P.W. 2) alongwith Wasim Ansari had come to the District High School, Saharsa, the Examination Centre, to bring home their sisters from the Centre. When the three reached at the Examination Centre, they saw three boys having climbed the window of the Examination Hall were teasing, abusing the girl examinees. His friend, Wasim, forbade the boys not to tease, abuse the girl examinees leading to altercation between him and the miscreants. The guardians present at the centre intervened and pacified the matter. Appellant was one of the boys, who asked the witness, he will teach them a lesson when they will come out of the Examination Centre. After the examination ended at 4 P.M., P.W. 1, his two friends alongwith their sisters came out of the centre reached near Saharsa Girls School, 15-20 miscreants led by the appellant, his two accomplice, Chhotu Singh and Sankar Das chased, apprehended them. Somehow, P.W. 1, P.W. 2 managed to escape but Wasim could not free himself. The appellant, his two accomplice, Chhotu Singh, Sankar Das, made him lie on his belly, the two accomplice of the appellant caught hold of his legs, hands, the appellant gave repeated dagger blows on his back and then the three left him by the side of the road and escaped towards Ambedkar Chowk. After the miscreants left Wasim, P.W. 1, P.W. 2 came and carried him on a rickshaw to the Sadar Hospital, where he was treated in Emergency Ward. Within 10 minutes his father and other family members also arrived at the hospital. Father of Wasim remained with him and the witnesses came out of the Emergency Ward. 10 minutes thereafter, police also reached the hospital and made inquiries from the witnesses. After sometime weeping cry was heard from the ward as Wasim has passed away. From perusal of the evidence of the witness, it appears that he has successfully stood the test of lengthy cross examination, nothing substantial has been taken during his cross examination wherefrom the prosecution story may appear to be doubtful.
P.W. 2, Md. Tabrej Alam, is the informant of the case. He alongwith P.W. 1 and Wasim had come to the Examination Centre at 3.45 P.M. Besides supporting the contents of the fardbyan, P.W. 2 has stated that he alongwith P.W. 1 and Wasim Ansari had come to the Examination Centre on the date of occurrence, 28.3.2006 at about 3.45 P.M., and had seen three boys teasing, abusing the girl examinees. Wasim Ansari, asked the boys not to tease, abuse the girl examinees. The three miscreants entered into scuffle with Wasim Ansari. Witness and others tried to intervene and separate them but the miscreants entered into scuffle with the witness and others then the guardians present at the centre intervened and separated them. The miscreants were appellant and his two accomplice, Sankar Das and Chhotu Singh. After the guardians intervened, appellant threatened that he shall teach the witness and his friends lesson after they come out of the Examination Centre. At about 4.05 P.M., the informant (P.W. 2), P.W. 1 and Wasim alongwith their sisters Raushani Pravin, the sister of the informant (P.W. 2) and Yasmin Pravin, sister of Jaffar Iqbal (P.W. 1), came near the Girls High School and saw 15-20 boys chasing them. Amongst the miscreants, who chased them were Chhotu Singh, Sankar Das and the appellant. The three miscreants also apprehended them. The informant (P.W. 2) and P.W. 1 somehow managed to escape but Wasim could not free himself from the clutches of the three miscreants. Having run some distance, P.W. 2, P.W. 1 turned around and saw Chhotu Singh, Shankar Das holding his legs, hands, the appellant assaulting him on his back with a dagger, after assault left injured Wasim, by the road side and then escaped. P.W. 2 alongwith P.W. 1 thereafter came near Wasim and took him to the Sadar Hospital on a rickshaw where father of Wasim also came. Wasim, however, died in course of treatment. Police came to the Hospital and recorded the fardbyan of the witness in presence of Jaffar Iqbal (P.W. 1) and having read the same, he alongwith Jaffar Iqbal put signature over the same, which was proved by P.W. 2 as Exts.1 and 1/A. In his cross examination, nothing substantial has been taken by the cross examiner. The evidence of the informant that appellant assaulted Wasim on his back is found intact and there is nothing in the cross examination which may persuade this Court to disbelieve the prosecution story as narrated by the witness.
P.W. 3, Md. Arshad, is the maternal cousin of the deceased as also the signatory of the fardbyan of P.W. 2. This witness has claimed himself to be an eye witness of the occurrence as at the time of occurrence he was coming from Saharsa Market to New Market and was near B.S.N.L. Office Building saw many passersby running on the road in different directions asked the passersby as to why they are running then they informed him that near Girls School, Saharsa, scuffle has taken place in which dagger has also been used. Having learnt about the scuffle he in order to find out the reason came near Girls High School on his motorcycle and saw by the road side 3-4 boys holding another boy who was being assaulted by one of them with dagger and then the miscreants ran away. Amongst the miscreants who escaped, P.W. 3 identified the appellant as the one who earlier stabbed the victim with a dagger and then saw the injured taken on a rickshaw by two other boys to the hospital. P.W. 3 further stated that those who carried the injured to the hospital were Jaffar and Tabrej, resident of the same locality (mohalla) in which P.W. 3 is also residing and even the injured, Md. Wasim alias Mister is resident of the same locality (mohalla) and is the son of his aunt (phua). The witness also came to the hospital and asked Wasim about the names of the assailants and then injured replied that the appellant in the company of Chhotu Singh and Sankar Das assaulted him. P.W. 3 has further proved his signature over the inquest report and the fardbyan, which have been marked as Exts.1/B and 1/C. In cross examination, this witness claimed that earlier his statement was also taken by the police at the Sadar Hospital, Saharsa. In paragraph-3, the attention of the witness was drawn towards his earlier police statement and with reference thereto it has been put to him that he has not made such statement before the police as he has deposed in court but the witness asserted that he has stated before the police that he had seen the appellant assaulting Wasim and then running away from the place of occurrence. Aforesaid denial of the witness is required to be considered in the light of the evidence of the Investigating Officer in paragraph-7 in which Investigating Officer has confirmed that P.W. 3 had not stated before him that he identified the appellant assaulting Wasim with dagger and, thereafter, saw him running away from the place of occurrence. In this connection, we may also refer to the evidence of P.W. 3 in examination-in-chief itself wherefrom it appears that having reached the hospital, P.W. 3 asked the injured as to who assaulted him and then learnt from him that it was the appellant. In view of the aforesaid evidence of P.W. 3, he cannot be said to be an eye witness to the occurrence, which is further confirmed from paragraph-1 of his examination-in-chief wherefrom it appears that while he was standing near the B.S.N.L. Office, he saw the passersby running on the road in different directions and asked them what is the matter, the passersby informed him that somebody has been assaulted with knife near Girls High School and then he proceeded on his motorcycle. In view of the aforesaid examination-in-chief, we are satisfied that he is not an eye witness to the occurrence.
P.W. 4, Md. Zaffar, is the full brother of the deceased. From perusal of his evidence it appears that he is not an eye witness to the occurrence as he learnt about the occurrence from his father, who having reached the hospital telephonically informed this witness about the occurrence and the injuries caused to Wasim.
Now, we consider the evidence of P.W. 8, Shamima Khatoon, the mother of the deceased, who is not an eye witness to the occurrence rather she learnt about the occurrence from her husband. She has stated in her evidence that few days prior to recording of her evidence her husband left for heavenly abode. She has also given information that at the time of occurrence deceased was serving as a television mechanic at Bhagalpur. From perusal of her evidence, it appears that her evidence does not deal with any aspect of the prosecution case, as such, it is not required to be considered in detail.
Now, we take up the evidence of the official witnesses, P.W. 5, Dr. Sachida Nand Rai and P.W. 6, Dr. Binay Kumar Singh, were Observers when the post-mortem of the dead body of Wasim was conducted by Dr. Kazim Asgar on 28.3.2006 at 7.50 P.M. P.W. 5 has proved the post-mortem report of the deceased (Ext. 2). It appears from the evidence of P.W. 5 and the post-mortem report (Ext. 2) that the deceased suffered following injuries on his person:
(i) One incised penetrating wound on the back of the left side of the chest just below the left scapula sized 3/4" X 1/4" going inside the chest cavity. Blood was oozing from the wound.
(ii) On opening of the chest cavity, the chest cavity was full of blood. There was an incised and penetrating wound on the posterior aspect of the chest in 7th intercoastal space (Left side) corresponding with injury No. (i).
(iii) There was one incised penetrating wound on the posterior aspect of the mid lobe of the left lung size 1/2" X 1/4" X 2".
From the evidence of P.Ws. 5 and 6 and the postmortem report, it further appears that time elapsed since death and the post-mortem was within six hours. The cause of death, in the opinion of the doctors, is due to shock and haemorrhage caused as a result of the injuries caused on the person of the deceased by sharp penetrating weapon. From the aforesaid injuries as also the post-mortem report, it is also evident that the deceased was given one blow and the prosecution story that repeated blows were given by dagger does not appear to be correct. From the evidence of P.W. 5, it further appears that at the time of post-mortem examination, rigor mortis was present in all the four limbs and the neck of the dead body. Aforesaid opinion of P.W. 5 in paragraph-2 of his cross examination is not fully correct as from the post-mortem report (Ext. 2), it appears that rigor mortis was partially present in neck and all the four limbs of the dead body. Occurrence having taken place on 28.3.2006 at 4.05 P.M. and the post-mortem conducted within six hours of the death, the presence of partial rigor mortis on the dead body is quite natural and will not affect the veracity of the prosecution case on the ground that the death took place at a time interior to the time of occurrence indicated above.
Having considered the evidence of the doctors, now we consider the evidence of Alok Kumar (P.W. 7), who is Investigating Officer of the case. At the time of occurrence, he was serving in Sadar P.S., Saharsa, as Sub Inspector. Having received information about the occurrence, he alongwith the Officer Incharge and police force reached Sadar Hospital, Saharsa, by which time injured had already died. On the instruction of Officer Incharge, he recorded the fardbyan of the informant, Md. Tabrej Alam (P.W. 2), over which not only the informant (P.W. 2), P.W. 1, Md. Jaffar Iqbal and P.W. 3, Md. Arshad, put their signatures. Aforesaid fardbyan was proved by P.W. 7 as Ext. 3. P.W. 7 also proved the carbon copy of the inquest report (Ext. 4), dead body challan (Ext. 5) and formal F.I.R. (Ext. 7). He has also indicated as to how he proceeded with the investigation in the case and submitted chargesheet for the offence under Sections 302 /34 of the Penal Code.
Learned counsel for the appellant has questioned the Judgment of conviction on the ground that prosecution has failed to prove the genesis of the occurrence, i.e., the story which happened at the Examination Centre at around 3.45 P.M. that three boys, i.e., appellant and his two accomplice were teasing the girl examinees by climbing the window of the centre which persuaded the deceased, Wasim, to ask the boys not to abuse which led to scuffle. After intervention of the guardians of the girl students, the appellant and his accomplice threatened Wasim with dire consequences, no sooner he shall came out of the centre. It is further submitted that prosecution has also not produced any material to suggest that the sisters of P.W. 1 and P.W. 2 had come to the Examination Centre on the fateful day to appear as an examinee, as such, the prosecution failed to prove the reasons for which P.Ws. 1, 2 and the deceased were required to be present at the Centre. The subsequent story that deceased, P.W. 1 and P.W. 2 came out of the centre around 4.05 P.M., appellant, his two accomplice and others chased them and apprehended Wasim, assaulted him with dagger, is wholly misconceived as there is no material for believing such story. In this connection, he also pointed out that the fardbyan even does not contain the names of the girl student of the deceased and sister of P.W. 1, P.W. 2, who were appearing in the examination. He further pointed out that after P.Ws. 1, 2 and the deceased were chased, apprehended, P.Ws. 1, 2 somehow managed to escape but the deceased was remained under apprehension and was assaulted, the prosecution has not indicated what happened to the sisters, who were not only present but also accompanying P.Ws. 1, 2 and the deceased. In this connection, learned counsel has placed reliance on the evidence of P.W. 1, paragraphs-2, 3 and P.W. 2, paragraph-3. Learned counsel for the appellant next submitted that even in the evidence the name of the girl students of the deceased Wasim having not been disclosed, he had absolutely no reason to be present at the place of occurrence and, according to the learned counsel for the appellant, the occurrence has taken place else where.
Having attacked the conviction on merit, learned counsel next submitted that even if the prosecution story is accepted, the conviction u/s 302 /34 of the Penal Code may not be upheld as the prosecution story that appellant gave repeated blows by dagger is not corroborated by the medical evidence, from which it is quite evident that the deceased suffered only one injury that too by dagger and as the blow has not been repeated, the intention of the appellant was only to teach the deceased lesson as there was altercation and scuffle between the appellant, his two accomplice and the deceased, P.Ws. 1 and 2 at 3.45 P.M. when they had come to the centre to take their sisters back home and to ask chance of success from the girl student.
Learned counsel for the State has supported the Judgment of conviction. It is submitted that appellant may have caused only one injury but considering the nature of the injury and the weapon used, i.e., dagger, the intention of the appellant is quite apparent that he desired to feed fat his grudge against the deceased who objected to his nefarious activity of eve teasing, injury may be one but considering his intention and nature of weapon, the conviction u/s 302 of the Penal Code is required to be upheld. He further pointed out that the submission of the learned counsel for the appellant that prosecution having not produced materials to suggest that the sisters of P.Ws. 1 and 2, namely, Yasmin Pravin and Raushani Pravin, were appearing in the examination cannot be a ground to disbelieve the prosecution case as the prosecution evidence of P.Ws. 1 and 2 is not only fully consistent but also providing necessary details. In this connection, it is pointed out that after the examination ended, P.Ws. 1, 2 and the deceased came out of the Centre and reached near Girls High School at 4.05 P.M. and saw the appellant and others not only chasing them but also succeeded in apprehending them. P.Ws. 1 and 2 somehow managed to escape, Wasim, however, was made to lie on his belly and, thereafter, the two accomplice of the appellant, Chhotu Singh and Sankar Das caught hold of his legs and hands and then the appellant assaulted him with dagger on his back.
From the evidence of P.W. 1, Md. Jaffar Iqbal and the informant (P.W. 2), Md. Tabrej Alam, it appears that both, P.Ws. 1 and 2 alongwith Wasim Ansari had come to the District High School, Saharsa on 28.3.2006 at about 3.45 P.M. to bring home their sisters from the Examination Centre. When the three reached the Centre they saw three boys having climbed the window of the Examination Hall were teasing, abusing the girl examinees. Wasim forbade the boys not to tease, abuse the girl examinees. Altercation took place between Wasim and the miscreant boys. Guardians present at the Centre intervened and pacified the matter. Appellant was one of the boys, who asked Wasim and the witnesses, i.e., P.Ws. 1 and 2 that he will teach them a lesson when they will come out of the Examination Centre. The Examination ended at 4 P.M. P.Ws. 1, 2, their sisters alongwith Wasim came out of the Centre and reached Saharsa Girls High School. 15-20 miscreants led by the appellant, his two accomplice, Chhotu Singh and Sankar Das chased, apprehended P.Ws. 1, 2 and Wasim. Somehow P.Ws. 1 and 2 managed to escape but Wasim could not free himself. The appellant, his two accomplice, Chhotu Singh, Sankar Das made Wasim lie on his belly, the two accomplice of the appellant caught hold of his legs, hands, the appellant gave one dagger blow on the back of Wasim and the three left him by the side of the road and escaped towards Ambedkar Chowk. After the miscreants left Wasim, P.Ws. 1 and 2 carried Wasim on a rickshaw to Sadar Hospital, where he died. Injury found on his person is only one. Occurrence is the fall out of the altercation which took place sometime earlier at about 3.45 P.M. In the aforesaid background, appellant having inflicted one dagger blow, in our opinion, cannot be held liable for the offence u/s 302 of the Penal Code rather his conviction is required to be converted into Section 304 part-I of the Penal Code with direction to undergo sentence of 10 years rigorous imprisonment. In the result, the appeal is allowed and the conviction of the appellant under Sections 302 /34 of the Penal Code is set aside, however, appellant is convicted u/s 304 part-I of the Penal Code with direction to undergo rigorous imprisonment for 10 years.