VIDYATMA SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Five accused persons including the two appellants were put on trial before the learned Additional Sessions Judge. While Vidyatma Sah (A-1) was charged under Section 302 of the Indian Penal Code (hereinafter referred to as 'IPC') for the murder of Lal Muni Devi (deceased), A-1 and Hira Lal Sah (A-2) were charged under Section 323, I.P.C. for assaulting Gopal Sah, the husband of the deceased A-2 along with three others (since acquitted) were charged under Section 302,I.P.C. for being members of an unlawful assembly in prosecution of the common object of which the deceased was murdered by A-l. By judgment and order dated 24th August, 1987, A-l was not found guilty of the charge under Section 302 I.P.C. and instead convicted under Section 326, I.P.C. and sentenced to undergo rigorous imprisonment for ten years. A-2 along with other were acquitted of the charge under Section 302/149, I.P.C. However, both A-l and A-2 were convicted under Section 323, I.P.C. and each of them sentenced to undergo rigorous imprisonment for six months. The sentence against A-l were ordered to run concurrently. Hence the appeal by A-l and A-2.

(2.) The case arose out of an incident that took place on the night of 13.3.1979 in village Gajadhar Tola under Manjhagarh P.S. of Gopalganj district. The prosecution case as unfolded in course of trial was that about 8 p.m. the informal Gopal Shah (P.W. 3) was sitting on a cot and his wife Lal Muni Devi (deceased) was cooking food on the osara of their house. A-l armed with farsa, his brother A-2 with lathi and A-1's mother Phuljharia Devi, wife Phulmatiya Devi and son Krishna Sah came there. The deceased was assaulted and dragged to the Sahan of Khublal Sah (P.W. 7) where A-l gave a farsa blow on her head and A-2 assaulted her with lathi. The informant was also assaulted by A-l by the lathi- portion of farsa and by A-2 by means of lathi both the injured, that is, the deceased and P.W. 3 were brought to Gopalganj Hospital on a Thela by Nandji Prasad (P.W. 4) where the fardbeyan (Ext.2) of P.W. 3 was recorded at 11.25 P.M. and on the basis of which a formal first information report (Ext. 3) was drawn up and a case under Sections 147, 148, 149, 324, 307 and 448, I.P.C. was registered which was subsequently converted into one under Section 302, I.P.C. on the death of the injured Lal Muni Devi in the hospital on that very night. The motive for the occurrence is alleged to be a quarrel that took place between the minor sons of the informant and A-l a day prior to the occurrence and in respect of which the son of A-l had compLalned to his father that Lal Muni Devi (deceased) had assaulted him. After completion of investigation in course of which the doctor held the post-mortem examination on the body of the deceased and also examined the injured (P.W. 3), the police charge-sheeted five accused per sons under Sections 147, 148, 149, 448, 323 and 302, I.P.C, including the two appellants. As many as 11 witnesses were examined for the prosecution in cluding three eye-witnesses, namely, Gyanti Devi (P.W. 1), Suraj Sah (P.W. 2) and the informant Gopal Sah (P.W. 3). The medical officer and the Investigating Officer were not examined. The injury reports (Exts. 4 and 4/1) and the Post Mortem Report (Ext.5) and the Inquest Report (Ext.8) were produced and marked Exhibits. The defence case was a denial of the occurrence as alleged by the prosecution. It was suggested to the informant that he had himself assaulted his wife suspecting an illicit relationship between her and is brother (P.W. 2). The learned Additional Sessions Judge did not accept the defence plea and con victed and sentenced the appellants in the manner indicated above and acquitted the other three accused.

(3.) Mr. Y.V. Giri, senior counsel appearing for the appellants argued that P.Ws 1, 2 and 3 could not be eye witnesses to the alleged occurrence and in view of the large number of infirmities and inconsistencies in the prosecution evidence including the non-examination of the independent witnesses, the learned Additional Sessions Judge was clearly in error in convicting the appellants. Another contention put forward on his behalf is that the appellants have, been seriously prejudiced by the non-examination of the Investigating Officer and by the Trial Court using the contents of the case diary (Ext. 7) which had been illegally admitted in evidence while appreciating the evidence of the eye witnesses. He also referred to a number of circumstances which supported the defence case that the informant who had come home after 2 to 3 months from Patna where he was working, had himself assaulted his wife (deceased) suspecting illicit relationship between his young and unmarried brother (P.W. 2) and his wife and to have falsely implicated the appellants in this case. Mr. P.K. Sahi, learned counsel appearing for the informant argued that it was a clear case of murder under Section 302, I.P.C. and the Trial Court was in error in not relying upon the Post Mortem Report (Ext. 5) as its contents were admissible in evidence under Section 294 of the Code. He described the prosecution case as having the ring of truth and defence case not worthy of even serious discussion on account of different suggestion regarding the defence case given to the prosecution witnesses. Mrs. Indu Bala Jha, learned counsel appearing for the State, however, supported the conviction of the appellants as based on legal and satisfactory evidence on the record.