Nihore Koeri and Others Vs. State of Bihar
EmailAppeal: Criminal Appeal No. 491 of 2001
(Arising out of SLP (Crl.) No. 3186 of 2000)
(Arising out of SLP (Crl.) No. 3186 of 2000)
Petitioner: Nihore Koeri and Others
Respondent: State of Bihar
Apeal: Criminal Appeal No. 491 of 2001
(Arising out of SLP (Crl.) No. 3186 of 2000)
(Arising out of SLP (Crl.) No. 3186 of 2000)
Judges: M.B. SHAH & K.G. BALAKRISHNAN, JJ.
Date of Judgment: Apr 10, 2001
Head Note:
CRIMINAL LAW
Evidence Act, 1872
Section 3 – Evidence – Appreciation – Complainant’s protest petition alleging one ‘P’ & ‘R’ dragging deceased and then one “RA” giving gandasa blow on head – Constant statement of eye-witnesses that it was accused who gave the blow. Held that pro-test petition would not falsify the constant statement of wit-nesses that accused assaulted the deceased. (Para 4)
Indian Penal Code, 1860
Section 304 Part I or II – Dispute between complainant and accused on land purchased by latter from former – On the date of incident accused party assaulting deceased and witnesses, who had gone where accused was constructing wall – Trial court coming to finding that death was caused without intention to kill or to cause such bodily injury as is likely to cause death. Held that conviction should be under part II of Section 304. Conviction and sentence altered. (Paras 5 to 8)
Cases Reffered:
1. Lal Mandi v. State of West Bengal ((1995) 3 SCC 603) (Para 4)
JUDGEMENT:
ORDER
1. Leave granted.
2. Being aggrieved and dissatisfied by the judgment and order dated 5th April, 1999 passed by the 7th Additional Sessions Judge, Rohtas, at Sasaram, convicting the appellants for the offence punishable under Section 304 Part-I read with Section 149 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 10 years, the appellants preferred Criminal Appeal No. 69 of 1999 before the High Court of Judicature at Patna. By the impugned judgment and order dated 31st March, 2000, the High Court dismissed the appeal and confirmed the judgment and order passed by the learned Sessions Judge.
3. At the time of hearing of this matter, the learned senior Counsel appearing on behalf of the appellants contended that the judgment and order passed by the High Court, is on the face of it illegal and erroneous and that the High Court has failed to discharge its function of re-appreciating the evidence led by the prosecution before confirming the conviction. He pointed out that this Court has repeatedly drawn the attention of the High Courts to their essential duty of re-appreciating the evidence in a conviction appeal. The learned Counsel further submitted that considering the facts, particularly, the protest petition which was filed by the complainant, it appears that the main accused at whose instance this incident took place is not prosecuted. For this purpose, he has referred to the protest petition produced on record. He submitted that witnesses have improved their version on the basis of the medical evidence that accused assaulted by blunt side of bhala or gandasa and, therefore, either their presence at the scene of offence is doubtful or they are sup-pressing true facts with regard to the incident.
4. It is true that in the protest petition, the complainant has stated that on the day of incident one Parasnath Tiwari and Rajeshwar Tiwari caught hold of both the hands of his brother and dragged him out from the Dalan and thereafter Ramadhar Tiwari gave a gandasa blow on the head of his brother Nizamuddin. There-after, accused Kharpattu Koeri and other accused assaulted the deceased. But this would hardly be a ground for discarding the consistent evidence led by the prosecution to establish that accused assaulted the deceased at the relevant time. The protest petition filed by the complainant would not, in any way, falsify the say of the witnesses that the accused also participated in the offence. We agree with the learned Counsel that in this case the High Court has failed to discharge its essential duty of re-appreciating the evidence in a conviction appeal and of arriving at an independent finding based on the appraisal of such evi-dence. (Re. Lal Mandi v. State of West Bengal ((1995) 3 SCC 603). However, at the request of learned Counsel for the accused and after considering all submissions as well as some part of the evidence sought to be relied upon, instead of remitting the matter to the High Court we issued notice limited to the nature of offence. Therefore, we are not required to re-appreciate the evidence in this appeal.
5. It is admitted by the prosecution witnesses that there was dispute between the accused side and the complainant with regard to land purchased by the accused from the complainant side. On the day when the accused were constructing the wall over the said land, witnesses had gone at the site and there was a quarrel. Thereafter, the accused assaulted the deceased and other witness-es. The Additional Sessions Judge after appreciating the entire evidence arrived at the conclusion that all the accused persons were armed with weapons, such as gandasa, bhala and lathis and on the instigation of Nihore Koeri, Kharpattu Koeri gave two lathi blows on the head of the deceased Nizamuddin. Other accused Kashi Sah who was armed with gandasa also gave a lathi blow on the eyebrow of Nizamuddin. Rest of the accused assaulted when the deceased fell down. Learned Judge also arrived at the conclusion that the manner of the assault at the hands of the accused per-sons shows clearly that accused persons caused death of Nizamud-din without any intention to cause death or to cause such bodily injury which was likely to cause death and convicted them for the offence punishable under Section 304 Part-I of I.P.C.
6. Without considering these findings rendered by the learned Sessions Judge, the High Court observed that Sessions Judge was lenient in awarding sentence to the appellants only under one Section leaving aside other Sections for which they were charged. The court also observed thus:
“All the appellants were sentenced to undergo rigorous imprison-ment for ten years under Section 304 Part I of the Indian Penal Code. The charge under Section 302 may be reduced under minor Section, if the evidence on the record proves the same. This can be done within the provision of Section 222(2) of the Code of Criminal Procedure. So I do not think, the sentence awarded to the appellants also suffers from any illegality.”
7. It appears that the High Court has not considered the finding recorded by the Sessions Judge. Once the Sessions Court arrived at the conclusion that there was no intention on the part of the accused to cause death or of causing such bodily injury as was likely to cause death, there was no question of convicting the appellants under Section 304 Part-I of the I.P.C. Accused could be convicted under Section 304 Part-II.
8. In the result, the appeal is allowed. The conviction of the appellants under Section 304 Part-I is set aside. They are con-victed for the offence punishable under Section 304 Part-II and Section 149 of the I.P.C. and are sentenced to undergo rigorous imprisonment for five years.
9. The appeal stands disposed of accordingly.
1. Leave granted.
2. Being aggrieved and dissatisfied by the judgment and order dated 5th April, 1999 passed by the 7th Additional Sessions Judge, Rohtas, at Sasaram, convicting the appellants for the offence punishable under Section 304 Part-I read with Section 149 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 10 years, the appellants preferred Criminal Appeal No. 69 of 1999 before the High Court of Judicature at Patna. By the impugned judgment and order dated 31st March, 2000, the High Court dismissed the appeal and confirmed the judgment and order passed by the learned Sessions Judge.
3. At the time of hearing of this matter, the learned senior Counsel appearing on behalf of the appellants contended that the judgment and order passed by the High Court, is on the face of it illegal and erroneous and that the High Court has failed to discharge its function of re-appreciating the evidence led by the prosecution before confirming the conviction. He pointed out that this Court has repeatedly drawn the attention of the High Courts to their essential duty of re-appreciating the evidence in a conviction appeal. The learned Counsel further submitted that considering the facts, particularly, the protest petition which was filed by the complainant, it appears that the main accused at whose instance this incident took place is not prosecuted. For this purpose, he has referred to the protest petition produced on record. He submitted that witnesses have improved their version on the basis of the medical evidence that accused assaulted by blunt side of bhala or gandasa and, therefore, either their presence at the scene of offence is doubtful or they are sup-pressing true facts with regard to the incident.
4. It is true that in the protest petition, the complainant has stated that on the day of incident one Parasnath Tiwari and Rajeshwar Tiwari caught hold of both the hands of his brother and dragged him out from the Dalan and thereafter Ramadhar Tiwari gave a gandasa blow on the head of his brother Nizamuddin. There-after, accused Kharpattu Koeri and other accused assaulted the deceased. But this would hardly be a ground for discarding the consistent evidence led by the prosecution to establish that accused assaulted the deceased at the relevant time. The protest petition filed by the complainant would not, in any way, falsify the say of the witnesses that the accused also participated in the offence. We agree with the learned Counsel that in this case the High Court has failed to discharge its essential duty of re-appreciating the evidence in a conviction appeal and of arriving at an independent finding based on the appraisal of such evi-dence. (Re. Lal Mandi v. State of West Bengal ((1995) 3 SCC 603). However, at the request of learned Counsel for the accused and after considering all submissions as well as some part of the evidence sought to be relied upon, instead of remitting the matter to the High Court we issued notice limited to the nature of offence. Therefore, we are not required to re-appreciate the evidence in this appeal.
5. It is admitted by the prosecution witnesses that there was dispute between the accused side and the complainant with regard to land purchased by the accused from the complainant side. On the day when the accused were constructing the wall over the said land, witnesses had gone at the site and there was a quarrel. Thereafter, the accused assaulted the deceased and other witness-es. The Additional Sessions Judge after appreciating the entire evidence arrived at the conclusion that all the accused persons were armed with weapons, such as gandasa, bhala and lathis and on the instigation of Nihore Koeri, Kharpattu Koeri gave two lathi blows on the head of the deceased Nizamuddin. Other accused Kashi Sah who was armed with gandasa also gave a lathi blow on the eyebrow of Nizamuddin. Rest of the accused assaulted when the deceased fell down. Learned Judge also arrived at the conclusion that the manner of the assault at the hands of the accused per-sons shows clearly that accused persons caused death of Nizamud-din without any intention to cause death or to cause such bodily injury which was likely to cause death and convicted them for the offence punishable under Section 304 Part-I of I.P.C.
6. Without considering these findings rendered by the learned Sessions Judge, the High Court observed that Sessions Judge was lenient in awarding sentence to the appellants only under one Section leaving aside other Sections for which they were charged. The court also observed thus:
“All the appellants were sentenced to undergo rigorous imprison-ment for ten years under Section 304 Part I of the Indian Penal Code. The charge under Section 302 may be reduced under minor Section, if the evidence on the record proves the same. This can be done within the provision of Section 222(2) of the Code of Criminal Procedure. So I do not think, the sentence awarded to the appellants also suffers from any illegality.”
7. It appears that the High Court has not considered the finding recorded by the Sessions Judge. Once the Sessions Court arrived at the conclusion that there was no intention on the part of the accused to cause death or of causing such bodily injury as was likely to cause death, there was no question of convicting the appellants under Section 304 Part-I of the I.P.C. Accused could be convicted under Section 304 Part-II.
8. In the result, the appeal is allowed. The conviction of the appellants under Section 304 Part-I is set aside. They are con-victed for the offence punishable under Section 304 Part-II and Section 149 of the I.P.C. and are sentenced to undergo rigorous imprisonment for five years.
9. The appeal stands disposed of accordingly.
