SOHAN SINGH Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 9.8.1991, passed by the 2nd Additional Sessions Judge, Vaishali at Hajipur, in Sessions Trial No. 122 of 1985, convicting the appellant for the offence under Section 304 of the Indian Penal Code and sentencing him to undergo RI for eight years.

(2.) THE son of the deceased, Dasrath Singh, lodged an information at the police station (sic) on 26.10.1984 at 5.15 p.m. alleging therein that at about 4 p.m. his mother had gone to Gorhiya market for selling vegetables (Potato) along with this informant. Her mother had kept her basket full of vegetables and was selling the same. In the mean time the accused-appellant Sohan Singh came there along with his basket of radish and kept his basket at the same place where her mother was selling her own vegetables and asked her to remove her basket from there. When the informant's mother refused to remove her basket from there, Sohan Singh caught his mother by her neck and started pressing it. Subsequently the accused gave a jerk to the neck of the deceased and pushed her, rather threw her done. THE deceased fell down and died at the spot. THEreafter, the accused fled away from there. This occurrence was witnessed by the Bhageran Singh, Faujdar Singh, Kishundeo Singh, Ram Pukar Singh and Bhuteran Singh, who were also selling their own vegetables at the same place.

(3.) HOWEVER, the evidence of the hostile witnesses is also relevant to some extent, because they offered some circumstantial credence to the occurrence in as much as some of them had seen the deceased dead in the market on the date and at time of the alleged occurrence. In this connection, PW 1 said that when he had gone to the Gorhiya market and was taking tea, he heard that one Somariya Devi, an old women was dead. He heard that the accused Sohan Singh had pushed her down and killed her. PW 2 was also a vendor in Gauriya market. This witness in detail said that Somaria Devi was selling vegetables in the market where the accused Sohan Singh also was selling his own wares. There was an altercation between the deceased and the accused Sohan Singh over keeping of their baskets. This witness thereafter, left the piace and when he came back he found the old women dead. PW 3 Ramdeo did not say a word in favour of the prosecution, so his evidence is of no avail. PW 4 also said that he was a vendor in the Gauriya market and Somariya and Sohan were also vending their vegetables. When this witness came to his own shop, he found that old women dead. This witness further said at paragraph 7 that the informant Dashrath is dead. This witness at paragraph 9 said that Daroga read over whatever he had written on the information of the informant about the occurrence. Then this witness signed the aforesaid statement of the informant. His signature was marked as Ext. 1. In cross-examination, this witness denied that the informant gave his statement before the police in his presence. But, however, the statement of the informant in the FIR shows that he had gone to the police station along with this witness. I this view of the matter, the retrograde statement of this witness in cross-examination by the accused appears to be an after thought intended to help the prosecution and that is why this witness was declared hostile by the prosecution. PW 5 is also a hearsay witness because he failed to support the alleged occurrence as an eye-witness, although he admitted that he was also a vendor of vegetables in the Gouriya market on the alleged date and time. This witness, however, had witnessed the inquest by the police in the Gouriya market itself, so this circumstance indicate that he had at least seen the deceased dead in the market itself, although he might not have seen the alleged occurrence. PW 6 the doctor, held the autopsy on the dead-body of the deceased on 28.10.1984 at 12.40 p.m. This doctor did not find any ante-mortem injury on the dead-body. He failed to ascertain the cause of death. The viscera was preserved, but no report of viscera examination was produced by the prosecution. I shall comment further on the medical evidence later on. PW 7 and 8 spoke of the alleged occurrence and they were positive in their evidence that they had seen the scuffle between the deceased and the accused in the Gaurhiya market on the alleged date and time and the occurrence of pushing of the deceased by the accused. They also supported the fact of the death of the deceased on account of act of pushing by the accused. The evidences was criticised or the ground that there were some discrepancies in the statement of the PWs. as to the kind of vegetables being sold by the accused. This discrepancy, in my opinion, does not lead to any disbelief of the occurrence, firstly because the witnesses are not supposed to say what kind of vegetables other vendors are selling. It was submitted by the appellant's lawyer that the PW 8 said that the ground at the place of occurrence was hard and so there should have been some injuries on the body of the deceased, but the doctor found no injury and hence the occurrence was belied. In my opinion, however, in absence of the statement of the I.O. regarding the nature of the ground at the place of occurrence, whether it was very hard or in the ordinary condition, when a witness speaks of the nature of particular ground as hard, his observation may not be strictly interpreted to mean that the ground must be so hard as to cause any apparent injury on any part of the body of the victim who falls on it, being pushed by any culprit. The doctor gave the age of the victim as 60-years so the chance of the deceased dying on account of being pushed after her neck being pressed and being jerked as also on account of the shock received by her during the course of scuffle preceding the act of pushing, cannot be ruled out.