Anup Sahu @ Anup Lal Sah And Ors vs State Of Bihar
2021 Latest Caselaw 6188 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.263 of 1995
======================================================

1. Anup Sahu @ Anup Lal Sah, son of Late Jitan Sah.

2. Lachman Sah alias Lakshman Sahu, son of Sri Anup Sahu.

3. Uttim Sah alias Uttim Sahu, son of Sri Anup Sahu. All residents of village-Korihar Laukahi, P.S. Andhramath (Laukahi), District-Madhubani.

... ... Appellants.

Versus The State of Bihar

... ... Respondent.

====================================================== Appearance :

For the Appellants : Mr. Manish Kumar No.13, Advocate.

Mr. Rohit Kumar, Advocate.

For the State : Ms. Shashi Bala Verma, A.P.P.

====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE A. M. BADAR)

Date : 16 -12-2021

The appellants/accused by this appeal are challenging

the Judgment and Order dated 22nd of August, 1995, passed by

the learned Sessions Judge, Madhubani, in Sessions Trial No.17

of 1992 between the parties thereby convicting them and

sentencing them accordingly.

By the impugned Judgment and Order, the

appellant/accused no.1 Anup Sah came to be convicted of the

offences punishable under Sections 447 and 307 of the Indian

Penal Code and he is sentenced to suffer rigorous imprisonment

for 10 years for the offence punishable under Section 307 of the Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

Indian Penal Code. Appeallant/accused no.2 Lachman Sah came

to be convicted for the offences punishable under Sections 447

and 302 of the Indian Penal Code and he is sentenced to suffer

imprisonment for life for the offence punishable under Section

302 of the Indian Penal Code. Appellant/accused no.3 Uttim

Sah came to be convicted of the offences punishable under

Sections 447, 307 and 323 of the Indian Penal Code. For the

offence punishable under Section 307 of the Indian Penal Code,

he is sentenced to suffer rigorous imprisonment for 10 years.

No separate sentences came to be imposed on the appellants for

other offences proved against them. For the sake of

convenience, the appellants shall be referred to as the accused.

2. The facts in brief leading to the prosecution of

the appellants/accused can be summarized thus:

(a). The incident in question took place at about

07.30 A.M. of 26.01.1991 in a field at village-Korihar Laukahi

within jurisdiction of Police Station-Andhramath in Madhubani

District of Bihar. On the day of the incident, at about 07.30

A.M., two brothers, namely, P.W.6 Surya Narayan Sah (the first

informant) and Ramdeo Sah (since deceased) were ploughing

their field. At about 07.30 A.M. of that day, accused persons

entered in the said field. Accused no.1 Anup Sah was armed Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

with Farsa, accused no.2 Lachman Sah was holding a lathi and

spear whereas accused no.3 Uttim Sah was holding a lathi.

They all unyonked the plough. P.W.6 Surya Narayan Sah and

his brother Ramdeo Sah (since deceased) opposed this act of the

accused persons. Then they all started beating Ramdeo Sah

(since deceased) by means of sticks and Farsa. Accused no.1

Anup Sah started assaulting P.W.6 Surya Narayan Sah by

means of Farsa. Frightened Ramdeo Sah ran to the adjoining

field and hide himself. Accused no.2 Lachman Sah holding a

spear and accused no.3 holding a lathi followed Ramdeo Sah

and started assaulting him by means of the weapons carried by

them. When P.W.7 Kaili Devi and P.W.8 Gopal Sah (parents of

Ramdeo Sah) went to save their son, accused Lachman Sah and

Uttim Sah assaulted them by means of lathies. Villagers such

as P.W.2 Raj Kumar Sah, P.W.3 Sita Ram Kamat, P.W.5

Parmeshwar Mandal, Ramashish Kamat etc. were present on the

spot of the incident and were witnessing the incident. After

hearing shouts lot of villagers gathered there. Accused persons

ran away. Injured P.W.6 Surya Narayan Sah and his brother

Ramdeo Sah were then taken to the Mahadeomath Hospital

where they were treated by P.W.9 Dr. Jugal Kishore Singh.

P.W.8 Gopal Sah was also treated by this Medical Officer. Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

Untimately, Ramdeo Sah succumbed to the injuries suffered by

him in the incident.

(b). Injured Surya Narayan Sah lodged First

Information Report (Ext.2) of the incident of 26.01.1991, while

taking treatment at the Mahadeomath Hospital and P.W.11

Bansidhar Jha, Police Sub Inspector recorded the same.

(c). Routine investigation followed. The dead body

of Ramdeo Sah was sent for autopsy. P.W.4 Dr. Jagdeo Mandal

of the Sadar Hospital, Madhubani, conducted the post-mortem

examination. Statements of the witnesses came to be recorded.

The spot was inspected by P.W.11 Bansidhar Jha PSI. On

completion of investigation, the accused persons were charge-

sheeted.

(d). The learned trial court framed various charges

against the accused persons. They all were charged for the

offence punishable under Section 447 of the Indian Penal Code

for having committed criminal trespass by entering in the

agricultural field of P.W.8 Gopal Sah situated at village -Korihar

Laukahi. Accused no.2 Lachman Sah came to be charged for

the offence punishable under Section 302 of the Indian Penal

Code for having committed murder of Ramdeo Sah. Accused

no.1 Anup Sah and accused no.3 Uttim Sah were charged for the Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

offence punishable under Section 307 of the Indian Penal Code

for attempting to commit murder of P.W.6 Surya Narayan Sah

(the first informant). Accused no.1 Anup Sah was charged for

the offence punishable under Section 326 of the Indian Penal

Code for causing grievous hurt to P.W.6 Surya Narayan Sah

wheres accused no.3 Uttim Sah came to be charged for the

offence punishable under Section 323 of the Indian Penal Code

for voluntarily causing hurt to Gopal Sah and Kaili Devi.

(e). In support of the charge, the prosecution has

examined in all 13 witnesses. Defence of the accused persons

was that of total denial. They claimed to be owner and

possessor of the field wherein the incident in question took

place. They examined in all 7 witnesses.

(f). After hearing the parties, the learned trial court by

the impugned Judgment and Order was pleased to convict the

accused persons and to sentence them as indicated in the

opening paragraph of the Judgment.

3. We heard Mr. Manish Kumar No.13 and Mr. Rohit

Kumar, the learned Advocates appearing for the

appellants/accused. They argued that the entire prosecution case

is concocted and witnesses are got up witnesses. P.W.6 Surya

Narayan Sah cannot be an eye witness to the incident of murder Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

of his brother Ramdeo Sah who according to the prosecution

case was hidden in the neighbouring field. It is further argued

that other prosecution witnesses are also chances witnesses and

even P.W.1 Nathuni Sah has candidly stated the fact that he

reached at the spot after the incident. Learned Advocates

appearing for the appellants further argued that evidence on

record is not justifying the conviction for the offence punishable

under Section 307 of the Indian Penal Code. There is no

evidence to hold that accused no.2 Lachman Sah has committed

murder of deceased Ramdeo Sah.

4. As against this, the learned Additional Public

Prosecutor supported the impugned Judgment and Order and

argued that accused persons were holding dangerous weapons

such as Farsa and the spear apart from lathies. They assaulted

the victims and caused death of Ramdeo sah. Therefore, the

appeal is liable to be dismissed.

5. We have considered the submissions so advanced

and we have also perused the record and proceeding minutely.

We have gone through all documentary evidence. We have

minutely scrutinized evidence of all defence witnesses.

6. At the outset one will have to examine whether it is

proved by the prosecution that Ramdeo Sah died homicidal Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

death in the incident which took place on 26.01.1991.

Prosecution witnesses such as P.W.1 Nathuni Sah, P.W.2 Raj

Kumar Sah, P.W.3 Sita Ram Kamat, P.W.5 Parmeshwawr

Mandal, P.W.6 Surya Narayan Sah, P.W.7 Kaili Devi, P.W.8

Gopal Sah and P.W.11 Bansidhar Jha are unanimously stating

that Ramdeo Sah died on 26.01.1991. Their evidence on this

aspect has gone unchallenged. P.W.11 Bansidhar Jha, the

Investigating Officer, has deposed that he had conducted inquest

panchnama (Ext.7) after inspecting the dead body of Ramdeo

Sah in presence of P.W.10 Mungai Mukhia. The inquest

panchnama at Ext.7 duly corroborates the version of witnesses

who had spoken about the death of Ramdeo Sah. Dead body of

Ramdeo Sah was sent for autopsy to the Sadar Hospital,

Madhubani, where P.W.4 Dr. Jagdeo Mandal had conducted

post-mortem examination. It is in evidence of this Medical

Officer that on 27.01.1991, he performed the post-mortem

examination on dead body of Ramdeo Sah, son of Gopal Sah,

which was identified by Havaldar Gajadhar Singh. Relevant

portion of his evidence needs reproduction and it read thus:

"I found the following ante-mortem injuries on the dead body.

(i). One penetrating wound over right thigh 2" x 1" x 3" deep.

Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

(ii). One penetrating wound over right thigh over posterior aspect 2" x 1" x 3" deep.

(iii). One penetrating wound over right leg 2" x 1" x 1".

(iv). Blakish bruise over left elbow and both the legs region.

On dissection, both the lungs were pale. Right heart chamber was full and left empty. Liver was pale. Spleen & kidney were also pale. Stomach was empty. Bladder was also empty. Femoral artery was cut with bruising of muscles. Large and small intestine contained fecal matter and gases. Brain and meninges pale."

There is nothing in cross-examination of this Medical

Officer to doubt his version which is duly corroborated by the

report of the post-mortem examination duly proved by him.

With this evidence the prosecution has certainly proved that

Ramdeo Sah son of Gopal Sah died homicidal death on

26.01.1991.

7. Now, let us examine whether the prosecution has

proved that all accused persons had committed the offence of

criminal trespass by entering upon the agricultural field of

Gopal Sah and whether it is established from the evidence on

record that accused no.2 Lachman Sah has committed murder

of Ramdeo Sah. It will also have to be seen whether by

assaulting P.W.6 Surya Narayan Sah, accused no.1 Anup Sah

and accused no.3 Uttim Sah had committed the offence of Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

attempting to commit his death and whether accused no.3 Uttim

Sah had committed the offence of voluntarily causing hurt to

Gopal Sah and Kaili Devi.

8. One may argue that witnesses examined by the

prosecution in the instant case are related to the prosecuting

party and therefore their evidence needs to be discarded being

untrustworthy. However, it is well settled that a witness is

normally to be considered independent unless he or she springs

from sources which are likely to be tainted. Unless the witness

has cause such as enmity against the accused with a desire to

implicate him falsely, evidence of a witness cannot be

discarded. It is trait that ordinarily a close relation would be the

last to screen the real culprit and falsely implicate an innocent

person. However, at the same time it will have to be kept in

mind that in case of more than one assailant, there is a tendency

to drag in an innocent person against whom a witness has a

grudge, along with the real assailants. Each case is required to

be judged on its own facts but merely because witnesses are

relatives, they cannot be branded as liers. One has to be

cautious in dealing with the evidence of such witnesses.

Keeping it in mind these aspects, let us examine the evidence of

the first informant who himself is an injured witness in the Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

instant case. He has lodged the F.I.R. (Ext.2) with promptitude

while taking medical treatment at the hands of P.W.9 Dr. Jugal

Kishore Singh at the Mahadeomath Hospital.

9. It is evidence of P.W.6 Surya Narayan Sah, who

happens to be brother of the deceased Ramdeo Sah that at about

07.30 A.M. of 26.01.1991, they were ploughing their field and

at that time, accused Anup Sah, Lachman Sah and Uttim Sah

entered in their field. Anup Sah was armed with Farsa,

Lachman Sah was holding a spear as well as a lathi whereas

Uttim Sah was holding a lathi. P.W.6 Surya Narayan Sah

testified that then accused persons unyonked the plough and

upon objection to this act, accused Anup Sah gave a blow of

Farsa on his head. Injury mark on the head of P.W.6 Surya

Narayan Sah was even noted by the learned trial court and this

fact is recorded in the deposition. P.W.6 Surya Narayan Sah

further deposed that accused Uttim Sah assaulted him by means

of lathi. He stated that his brother Ramdeo Sah got frightened

and hide himself in the adjoining field but accused Lakshman

holding a spear and accused Uttim holding a lathi followed him

and assaulted him. As per version of this witness P.W.6 Surya

Narayan Sah, his father P.W.8 Gopal Sah and his mother P.W.7

Kaili Devi tried to save Ramdeo Sah but Lachman Sah and Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

Uttim Sah have assaulted them also by means of lathies. This is

an eye witness account given by injured P.W.6 Surya Narayan

Sah wherein he had stated that by giving blows of spear,

accused no.2 Lachman Sah and by giving blows of stick

accused no.3 Uttim Sah had assaulted his brother Ramdeo Sah.

As per version of this witness, villagers took them both to

Mahadeomath Hospital where his brother Ramdeo Sah died.

He proved his F.I.R. (Ext.2) lodged by him at the Sadar

Hospital, Madhubani, itself while taking treatment. During the

course of cross-examination, lot of insignificant stuff came to

be introduced by the defence in respect of ownership and

possession of the field which has no bearing for deciding the

criminal liability of the accused persons. Some injury caused to

accused no.1 Anup Sah has also got explanation from the cross

examination of this witness. He stated that when the villages

gathered at the spot, Niranjan Mirtha snatched the Farsa from

the hands of accused Anup Sah and assaulted Anup Sah by that

Farsa. Surprisingly, the defence has not challenged the version

of this witness P.W.6 Surya Narayan Sah regarding the incident

of murderous assault by accused persons on Ramdeo Sah so

also that of assault on this witness itself. The entire evidence of

this witness P.W.6 Surya Narayan Sah is virtually unchallenged Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

and therefore there is no reason to disbelieve his version

regarding the incident.

10. P.W.6 Surya Narayan Sah is an injured witness.

P.W.9 Dr. Jugal Kishore Singh, Medical Officer of the

Mahadeomath Hospital has duly corroborated the version of

this injured witness. Evidence of this Medical Officer shows

that on 26.01.1991 itself he had examined P.W.6 Surya Narayan

Sah at the said Hospital and found the following injuries on his

person.

"(i). Cut injury 1¼" x 1/4" x scalp deep on parietal region of right side of head.

(ii). Cut injury 2½" x 1/4" x scalp deep on vertex of the head.

(iii). Cut injury 2½ " x 1/4" x scalp deep on parietal region of left side of head.

(iv). Cut injury 2½" x 1/4" x scalp deep on occipito parietal region of left side of head.

(v). Bruise 1/4" x 1/8" x superficial on posterial side of right wrist.

(vi). Bruise 1/4" x 1/8" x superficial on middle part of posterio lateral side of left upper arm.

(vii). Swelling with tenderness on postero lateral side of middel part of the left forearm.

This evidence makes it clear that injured P.W.6 Surya

Narayan Sah had received the injuries in the incident which is

under examination in this case and therefore his evidence Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

carries great weight. Unchallenged version of this injured

witness P.W.6 Surya Narayan Sah as such is required to be

accepted in toto because he has received the injuries in the very

same incident as seen from the evidence of P.W.9 Dr. Jugal

Kishore Singh. Version of P.W.6 Surya Narayan Sah is fully

corroborated by this evidence.

11. It was sought to be argued that P.W.6 Surya

Narayan Sah cannot be an eye witness to the incident because

as per his version his brother Ramdeo Sah was hidden in the

adjoining field. However, there is no cross examination on this

point by the defence. There are no suggestion to P.W.6 Surya

Narayan Sah on this aspect. It is not elicited from him as to

whether there was standing crop in that field of sufficient height

to obstruct the vision of an onlooker. Hence, this argument

carries no weight to dislodge the eye witness account of the

incident given by P.W.6 Surya Narayan Sah-an injured first

informant. Even otherwise, as seen from evidence of P.W.6

Surya Narayan Sah, accused no.2 Lachman, carrying the spear

went behind Ramdeo Sah and soon thereafter, Ramdeo Sah got

fatal wounds by the spear.

12. Though evidence of P.W.6 Surya Narayan Sah,

an injured witness is sufficient to prove the incident of Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

murderous assault, there are several other eye witnesses who

were present on the scene of the occurrence in a very natural

way. It was a time of 07.30 A.M. It is a matter of common

knowledge that villagers go for easing themselves outside the

village in the morning hours. Similarly, it is but natural that

agricultural operations also start in the morning hours. That is

how, one will have to look at the evidence of eye witnesses to

the incident. P.W.2 Raj Kumar Sah, at the time of the incident

was present on the spot as he was passing from there after

relieving himself. He had been to answer the call of the nature.

Similar is the case of P.W.3 Sitaram Kamat. P.W.5 Parmeshwar

Mandal was harvesting the crop of potato at the time of the

incident in the nearby field of Durganand Jha. P.W.7 Kaili Devi

and P.W.8 Gopal Sah are parents of the deceased and the

injured witnesses of the incident. They were present in the

field. All these witnesses have unanimously deposed about the

mode and manner of the incident of murderous assault by the

accused persons. Their version about the incident is perfectly

in tune with the evidence of P.W.6 Surya Narayan Sah. All

these witnesses have spoken that accused Anup Sah was

holding Farsa, accused Lachman Sah was holding a spear and

accused Uttim Sah was holding a lathi. These eye witnesses Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

have stated that P.W.6 Surya Narayan Sah was assaulted by

means of Farsa by accused Anup Sah whereas accused

Lachman Sah and accused Uttim Sah assaulted Ramdeo Sah in

the neighbouring field by means of a spear and lathi

respectively. They have also vouched that P.W.7 Kaili Devi and

P.W.8 Gopal Sah were assaulted by means of sticks by accused

Uttim.

13. We have carefully perused the cross examination

of all these witnesses. P.W.2 Raj Kumar Sah has candidly stated

that though he attempted to save the victims, accused persons

rushed at him to assault him. He stated that accused Anup was

also injured by Farsa. However, from cross examination of

injured P.W.6 Surya Narayan Sah, the defence has brought on

record that it was at the instance of one Niranjan Mirtha. From

cross examination of P.W.3 Sita Ram Kamat also it is brought

on record that accused Anup Sah was injured at the instance of

Niranjan Mirtha and spear from the hand of accused Lachman

came to be snatched by Ram Prasad. P.W.3 Sita Ram Kamat in

his cross examination has stated that Anup Sah and his sons

were saying that they will not allow anyone to plough the field

owned by them. Thus, in fact, the benefit of this cross-

examination goes to the prosecution and it is seen even from the Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

cross examination also that in fact accused no.2 Lachman Sah

was holding a spear at the time of the incident. Even from cross

examination of P.W.5 Parmeshwar Mandal, it is brought on

record that he had witnessed the full incident. Thus cross

examination of all these witnesses is cementing the prosecution

case.

14. It has been brought on record from evidence of

P.W.8 Gopal Sah that they are also facing the trial for assaulting

accused Anup Sah but the defence has brought on record from

cross-examination of prosecution witnesses that said Anup Sah

was injured by one Niranjan Mirtha. Therefore, merely because

the incident has given rise to the counter case, version of these

eye witnesses cannot be doubted or disputed.

15. The foregoing discussion makes it clear that

deceased Ramdeo Sah was murderously assaulted by accused

no.2 Lachman Sah by giving blows of spear. Evidence of P.W.9

Dr. Jugal Kishore Singh who had medically treated Ramdeo

Sah at the Mahadeomath Hospital so also that of autopsy

surgeon P.W.4 Dr. Jagdeo Mandal shows that deceased Ramdeo

Sah was having three penetrating wounds on his right thigh and

leg. Two of the penetrating wounds were 3" deep whereas the

one wound on the leg was 1" deep. As opined by P.W.4 Dr. Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

Jagdeo Mandal, the injuries on Ramdeo Sah were sufficient to

cause his death in ordinary course of nature. Extensive

damage was caused by these penetrating injuries which are

attributable to the spear used by accused no.2 Lachman Sah.

Femoral artery of Ramdeo Sah was cut because of these fatal

blows given by accused no.2 Lachman Sah. Femoral artery is a

large artery in the thigh which supplies blood to the lower part

of the body. Any cut to this large artery can drive the victim to

instantaneous unconsciousness. Cut of this femoral artery can

cause death in few minutes only.

16. In the case in hand, with full force successive

blows of spear were given by accused no.2 Lachman Sah on

Ramdeo Sah causing cutting of the femoral artery. Section 300

of the Indian Penal Code defines the term "Murder" and

relevant portion thereof is thus:

"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or

3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

4thly. --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

Thus if any act is done by the assailants with the

intention of causing bodily injury to any person and if the

bodily injury intended to be inflicted is sufficient in the

ordinary course of nature to cause death, the offence becomes

an offence of murder.

17. In the case in hand, we are having expert opinion

of Dr. Jagdeo Mandal that the injuries on the deceased were

sufficient in the ordinary course of nature to cause his death.

Thus, the case in hand comes in clause 4thly of Section 300 of

the Indian Penal Code and therefore we uphold the finding of

the learned trial court that accused no.2 Lachman Sah had

committed the murder of the deceased Ramdeo Sah.

18. Evidence of P.W.8 Gopal Sah which is duly

corroborated by the evidence other eye witnesses unerringly

points out that accused no.3 Uttim Sah had caused hurt to him

as well as his wife P.W.7 Kaili Devi by giving blows of sticks

on them. We have also noted that he had given blows of sticks

to the deceased. Hence, we do not find any fault in conviction Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

of the accused no.3 Uttim Sah for the offence punishable under

Section 323 of the Indian Penal Code. Unfortunately however,

no charge for the offence punishable under Section 302 by

invoking provisions of Section 34 of the Indian Penal Code was

framed against accused no.3 Uttim. All accused persons, as

seen from the evidence of prosecution witnesses, had

committed criminal trespass by entering upon the land in

possession of P.W.8 Gopal Sah on which ploughing operations

were being done by injured P.W.6 Surya Narayan Sah and his

deceased brother Ramdeo Sah. Therefore, the offence

punishable under Section 447 of the Indian Penal Code is also

made out. Similarly the offence punishable under Section 323

of the Indian Penal Code is also proved against accused no.3

Uttim Sah.

19. Now, let us examine whether there was an

attempt to commit murder of the injured P.W.6. Surya Narayan

Sah and who is liable for that act. It is well settled that for

making out of offence punishable under Section 307 of the

Indian Penal Code it is not necessary that the victim should be

wounded. Presence of an intention coupled with some overt act

in execution of such intention is the only requirement of proof

of commission of an offence punishable under Section 307 of Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

the Indian Penal Code. There is no necessity of causing a

bodily injury capable of causing the death. P.W.6 Surya

Narayan Sah has testified that it was accused no.1 Anup Sah

who assaulted him by means of Farsa and the blows thereof

were given on the head. Though causing of injuries is not

necessary for making out of an offence punishable under

Section 307 of the Indian Penal Code, weapon used, seat of

injury, force and number of blows given indicates the intention

of the assailant which is a sine qua non for making out of the

offence punishable under Section 307 of the Indian Penal Code.

In this background and for this reason it is necessary to look

into the wounds caused by blows given by accused Anup Sah

on the head of P.W.6 Surya Narayan Sah. In foregoing

paragraphs we have already noted the injuries found on the

person of P.W.6 Surya Narayan Sah by attending Medical

Officer P.W.9 Dr. Jugal Kishore Singh. To put it briefly, P.W.6

Surya Narayan Sah was having several cut injuries on his head

which were also noticed by the learned trial court. These

injuries are certainly attributable to the Farsa and P.W.9 Dr.

Jugal Kishore Singh has candidly deposed that such injuries can

be caused by a Farsa. Considering the nature of the injuries,

vital part of the body chosen for inflecting the wounds so also Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

the weapons used for causing such wounds by accused no.1

Anup Sah, his intention to commit murder of P.W.6 Surya

Narayan Sah becomes writ large. He had definitely committed

the offence of attempting to murder of P.W.6 Surya Narayan

Sah. However, what is deposed against the accused no.3 Uttim

Sah, is to the effect that he is giving blows of lathi. It is seen

that accused no.3 Uttim had given blow of lathi on left forearm

of Surya Narayan Sah. There is no evidence reflecting the

intention of accused no.3 Uttim Sah to commit murder of

injured P.W.6 Surya Narayan Sah. He has at the most

committed an offence punishable under Section 323 of the

Indian Penal Code by voluntarily causing hurt to injured P.W.6

Surya Narayan Sah.

20. The defence has examined seven witnesses but

their evidence is of no assistance to doubt the case of the

prosecution which is in respect of commission of murder and

grievous hurt so also simple hurt. D.W.1 Ramgovind Sah is a

witness to the execution of the sale deed. D.W.2 Subhash

Chandra Misra is a formal witness examined for proving a rent

receipt. D.W.3 Sunil Kumar Singh is a clerk of an advocate,

who proved the F.I.R. in the counter case. D.W.4 Saryug Sah is

husband of lady named Gudri Devi and this witness has proved Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

some sale deeds. D.W.5 Dhankilal Mandal and D.W.6 Manit

Mandal have produced some sale deeds. D.W.7 Yogendra Sah

has proved a rent receipt. However, their evidence does not

show that agricultural field was in possession of accused no.1

Anup Sah. Therefore, it cannot be said that the offence

punishable under Section 447 of the Indian Penal Code is not

proved. These witnesses are not speaking anything about the

incident.

21. After holding him guilty of the offence

punishable under Section 307 of the Indian Penal Code,

appellant/accused no.1 Anup Lal Sah is sentenced to suffer

rigorous imprisonment for 10 years by the learned trial court. It

is well settled that it is the duty of every court to award proper

sentence having regard to the nature of the offence and the

manner in which it was committed. The sentencing court is

expected to consider all relevant facts and circumstances

bearing on the question of sentence and proceed to impose a

sentence commensurate with the gravity of the offence. The

sentence is required to be adequate, just and proportionate with

the gravity and nature of the crime. At the same time,

circumstances of the accused are also required to be kept in

mind while imposing the sentence, as one of the objects of the Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

criminal justice system is to rehabilitate the transgressors and

the criminals. In the case in hand, accused persons were

staking their claim over the agricultural land where the incident

took place. At the time of prosecuting him, appellant/accused

no.1 Anup Lal Sah was stated to be 74 years old as seen from

the impugned Judgment and Order. The incident took place

because of quarrel over possession of the agricultural field.

Therefore, in our considered opinion, taking into consideration

all relevant aspects, we deem it proper to award sentence of

rigorous imprisonment for five years on appellant/accused no.1

Anup Lal Sah for the offence punishable under Section 307 of

the Indian Penal Code. Appellant/accused no.3 Uttim Sah is

held to be guilty for the offence punishable under Section 323

of the Indian Penal Code for voluntarily causing hurt to the

members of the prosecuting party. Interest of justice would be

served if he is sentenced to suffer imprisonment which he has

already undergone. As conviction of appellant/accused no.2

Lachman Sah for the offence punishable under Section 302 of

the Indian Penal Code is upheld, there is no question of

interference in the sentence imposed upon him.

22. In the result, we proceed to pass the following

orders:

Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

(I). The appeal is partly allowed.

(II). The conviction of the appellant/accused no.2

Lachman Sah alias Lakshman Sahu for the offence punishable

under Section 302 is maintained. His conviction for the offence

punishable under Section 447 of the Indian Penal Code is also

maintained. Conviction of appellant/accused no.1 Anup Sahu

alias Anup Lal Sah for the offences punishable under Sections

307 and 447 of the Indian Penal Code is maintained. Similarly,

conviction of appellant/accused no.3 Uttim Sah alias Uttim

Sahu for the offence punishable under Sections 447 and 323 of

the Indian Penal Code is maintained. However, we quash and

set aside the conviction of appellant/accused no.3 Uttim Sah

alias Uttim Sahu for the offence punishable under Section 307

of the Indian Penal Code.

(III). The impugned Order of the learned trial court is

modified by awarding sentence of rigorous imprisonment for

five years for the offence punishable under Section 307 of the

Indian Penal Code to appellant/ accused no.1 Anup Sahu alias

Anup Lal Sah. For the offence punishable under Section 323 of

the Indian Penal Code, appellant/accused no.3 Uttim Sah alias

Uttim Sahu is sentenced to suffer the imprisonment which he

has already undergone in the present case. Conviction as well as Patna High Court CR. APP (DB) No.263 of 1995 dt.16 -12-2021

sentence imposed upon appellant/accused no.2 Lachman Sah

alias Lakshman Sahu by the learned trial court is upheld.

(A. M. Badar, J)

( Sunil Kumar Panwar, J)

P.S./-

AFR/NAFR                AFR
CAV DATE                23.11.2021.
Uploading Date          16.12.2021.
Transmission Date       16.12.2021.