Manoj Sah vs State Of Bihar

Heard Mr. Vipul Sinha, learned amicus curiae appearing for the appellant as well as Mr. Mukeshwar Dayal, learned Additional Public Prosecutor for the State.

This appeal has been preferred by the appellant challenging the judgment of conviction dated 06.12.2005 and order of sentence dated 09.12.2005 passed by Sri Kamal Prasad, learned District and Sessions Judge Begusarai in Sessions Case No. 140 of 2001 arising out of Barauni P.S. Case No. 433 of 2000, whereby and whereunder appellant has been convicted for the offence punishable under Section 307 of the Indian Penal Code. He is sentenced to undergo rigorous imprisonment for seven years.

It would be proper to mention here that trial facing accused Baiju Sah was acquitted.

On the basis of fardbeyan of Nageshwar Sah, Barauni P.S. Case No. 433 of 2000 was registered under Sections 323, 341 and 307 of the Indian Penal Code against three accused persons including the appellant.

As per prosecution story, in the night of 14.10.2000, informant Nageshwar Sah was sleeping on a chauki at medical shop of Jagdish Sao. Ranjeet Sao and Dinesh Malakar were also sleeping with him. It is alleged that at about 1:00 a.m. in the night, accused Manoj Sao, Baiju Sao and Sanjay Sao came to the shop. Manoj Sao (appellant) was armed with Hasuli. Accused Sanjay Sao was standing on the gate to keep vigil. Manoj Sao entered into the shop and uncovered his face and while he was going to slit his throat, hasuli flipped from his hand-grip and fell down on the ground and thereafter Nageshwar Sah woke-up and tried to catch the accused. His face was covered with towel. He raised alarm upon which, nearby villagers rushed towards him and saw that Manoj Sah having hasuli in his hand was fleeing away from the place of occurrence with other two other accused persons.

After completing the investigation, Investigating Officer has submitted chargesheet against the three accused persons, namely, Manoj Sah, Baiju Sah and Sanjay Sah under Section 307/34 of the Indian penal Code and thereafter cognizance was taken and accused persons were summoned for trial. The case was committed to the court of Sessions for trial and disposal.

On 7.2.2003 charge was framed under Section 307/34 of the Indian Penal Code against all the three accused persons. Trial court has explained the charges to them to which they pleaded not guilty and claimed to be tried.

During course of trial, accused Sanjay Sah died on 29.7.2005, so the case proceeded only against accused Manoj Sah and Baiju Sah.

To substantiate the charges leveled against the accused persons, altogether six witness were examined by the prosecution. P.W.-1, Jamshed Alam, P.W.-2 Krishna Kumar (brother-in-law of the informant), P.W.-3 Dr. Ashok Kr. Jha (doctor), P.W.-4 Shail Devi (sister of the informant), P.W.-5 Nageshwar Sah (informant himself) and P.W.-6 Nityanand Shukla, (I.O.). Defence has not examined any witness.

P.W. 1 Jamshed Alam is co-villager of the accused persons. He was declared hostile by the prosecution.

P.W.-2 Krishna Kumar is brother-in-law of the informant. He deposed in his deposition that on the alleged date of occurrence, while he was sleeping in a nearby room, he heard the sound of screaming of injured Nageshwar Sah. This witness woke up and rushed towards Nageshwar Sah, who told him that accused Manoj Sah had tried to kill him by slitting his throat. He saw injury on the face of the informant but did not see any of the accused persons there. This witness was also declared hostile by the prosecution.

P.W.-3 Dr. Ashok Kumar Jha, who examined the informant on 15.10.2000, deposed that at the relevant time he was posted at Sadar Hospital, Begusarai. He found only one sharp cut injury over left side of the face of the informant. He opined that nature of injury is simple caused by sharp cutting weapon which extends from tip of the nose to left ear.

P.W.-4 Shail Devi is sister of the informant. She has deposed that at the alleged date of occurrence, she was at the house of the informant and she deposed in para-1 of her examination-in-chief that she heard the sound of chor-chor thereafter she came out of the house to see his brother. She saw cut mark on his brother’s face. In para-5 of her cross-examination she stated that she had not heard the screaming sound of her brother.

P.W.-5 Nagashwar Sah is informant and injured of this case. He deposed that in the night on 14.10.2000, at 1:00 a.m. he was sleeping in the clinic of Dr. Jagdish Sao with two other persons, namely, Ranjit Sao and Dinesh Malakar. Due to large number of mosquitoes, his sleeping got disturb. In the meantime, someone has uncovered his face and then he saw that three persons, namely, Manoj Sah, Sanjay Sah and Baiju Sah were standing there. Manoj Sah had hasuli in his hand and he attempted to slit his neck but the same was luckily fell down from his hand causing injury over his face. He has identified the accused in bulb light. On his alarm, some persons namely, Ramsewak Das, Raj Kumar Swarnakar, Krishna Kumar Sah, who were also sleeping there rushed towards him. In para-7 of his cross-examination he disclosed that accused Baiju Sah is his cousin and accused Manoj Sah and Sanjay Sah are his nephews. He stated in para-8 that the background of the alleged occurrence was old land dispute. He was again cross-examined on 7.7.2004. In para 23 he stated that his brother-in-law took him to Begusarai Sadar Hospital for treatment.

P.W.-6 Nityanand Shukla is Investigating Officer of the case. He identified his handwriting and signature of the fardbeyan, which is exhibited as Ext.- 3. He deposed in para-9 that witness Krishna Kumar Sah had seen accused Baiju Sah and Sanjay sah behind accused Manoj Sah, while they were fleeing away from the room of the informant. When Krishna Kumar Sah tried to catch hold to Sanjay Sah then he fled away from there living behind his lungi. In para-11 of his cross-examination he stated that he meet the informant on same day but did not see his injury.

Learned counsel appearing on behalf of the appellant has submitted that entire proceeding leading to present appeal conducted by the trial court is without jurisdiction and trial court has completely failed to appreciate the entire evidence made by the prosecution. He submitted that P.W.-1 and P.W.-2 were declared hostile by the prosecution. P.W.-3 who examined the injured/informant had found only one sharp-cut injury on his face, which is simple in nature. I.O. has investigated the place of occurrence but neither he found any blood stain nor any suspicious material, thus he could not seize any thing from there. Furthermore, he has submitted that appellant had remained in custody for more than eight months.

Learned trial court had completely failed to appreciate the entire evidence made by the prosecution during trial by not considering the essential ingredients of section 307 IPC as there is no repetition of hasuli blow by the appellant to the informant to kill him. The order passed by learned trial court is bad, illegal and perverse in the eye of law and as such, impugned judgment of conviction and order of sentence is fit to be set aside.

Learned APP appearing for the state argued that impugned judgment in question is based on cogent and consistent evidence. From evidence of most of the prosecution witnesses, it is undisputed fact that appellant had intention to kill the informant for which on the alleged date of occurrence, at midnight, he entered into the place of occurrence where he was sleeping and tried to slit his throat by means of hasuli. Non-examination of independent witness, who had visited the place of occurrence, just after the incident on hearing the scream of the informant has no adverse effect on the prosecution case. The defense failed to discredit the evidence of the prosecution witnesses. He further submitted that the prosecution has been able to prove its case beyond all reasonable doubts, and therefore, learned trial court has rightly convicted the appellant by relying upon the evidence brought on record by the prosecution during trial. It has been contended that minor contradictions and variations in the testimony of the witnesses cannot be a ground to discard their evidence as a whole. Therefore, the judgment and order assailed in this appeal requires no interference and appeal is liable to be dismissed.

I have gone through the entire prosecution evidence and exhibits which are available on record. There is contented point in the instant appeal whether the judgment of conviction under Section 307 of the Indian Penal Code is on the basis of cogent and consistent evidence, which is adduced by the prosecution or not.

Under Section 307 IPC, what the court has to see is whether the act irrespective its result was done with the intention or knowledge and under circumstances mentioned in that Section. The intention or knowledge of the accused must be such as, is necessary to constitute murder. Without this ingredient being established, there can be no offence “attempt to murder”. The intention is to be gathered from all circumstances and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body whether the injury is inflicted are some of the ingredients that may be taken into consideration to determine the intention. According to evidence of the doctor, only one sharp cut wound was found on the person of the informant and doctor opined nature of injury is simple by sharp cutting weapon. In this case, there is no repeated blow made by the appellant as alleged. If the appellant had definite intention to kill the informant, no intervening circumstances is being explained as to why the appellant could not be successful in his attempt of murder. If he had any definite intention to kill P.W.-5, it is in the evidence that appellant had assaulted by means of hasuli on the neck of the informant and on that time there is no intervening circumstances to stop the appellant from assaulting with the intention to kill him. In this case only one injury has been proved in the evidence of the doctor. The appellant had not assaulted the informant in-succinctly or repeatedly with intention to kill the informant. In this case although doctor in his deposition, has stated that the injury is simple but may be dangerous to life but his opinion is not based on the provision of Section 320 of the IPC. According to Section 320 IPC, the kinds of hurt which are designated as grievous in nature but doctor in his evidence has not explained in respect of kind of injury, which may be dangerous to life. Doctor has found the nature of injury is sharp cutting and the offence against the appellant comes within the purview of Section 324 IPC and not under Section 307 IPC.

Thus, in view of the facts and circumstances of the case and the evidence as discussed above, I hold that appellant, namely, Manoj Sah is found guilty under Section 324 IPC and convict him thereunder. In this case, the appellant had faced ordeal of trial since year 2000. This appeal relates to year 2007. In this case appellant remained in jail for more than eight and a half months.

Considering the period of custody as well as ordeal of trial, the appellant is sentenced to period already undergone by him. The appeal stands dismissed with aforesaid modification of judgment of conviction and order of sentence.

Mr. Vipul Sinha, learned Amicus Curiae was appointed to represent the appellant/convict. I put on record the words of appreciation for able assistance rendered by him in arriving this Court at the proper conclusion in deciding the instant appeal. The Patna High Court, Legal Services Committee is, hereby, directed to pay Rs. 6,000/- (rupees six thousand only) to Mr. Vipul Sinha.