Sambal Ram vs State Of Bihar
2021 Latest Caselaw 5670 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
              CRIMINAL APPEAL (DB) No.271 of 1995
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Sambal Ram, Son of Sri Gulbchand Ram, resident of Village Amouna, P.S. Karakat (Kachhuwan), District Rohtas.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Ms. Surya Nilambari, Amicus Curaie For the Respondent/s : Ms. Shashi Bala Verma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE A. M. BADAR)

Date : 30-11-2021

By this appeal, the appellant/accused is challenging

the Judgment and order dated 01.08.1995 and 04.08.1995

respectively, passed by the 7th Additional Sessions Judge,

Rohtas, Sasaram, in Sessions Trial No. 154 of 1991 between the

parties, thereby convicting him of the offence punishable under

Section 302 of the Indian Penal Code and sentencing him to

suffer imprisonment for life. For the sake of conveyance, the

appellant/accused shall be referred to in his original capacity as

an accused.

2. The facts in brief leading to the prosecution case

projected from the police report can be summarized thus;

A. Parmanand Paswan (since deceased) was Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

resident village Amouna, P.S. Karakat (Kachhuwan), District

Rohtas, Sasaram. P.W.4 Bucha Paswan is the first informant,

who lodged the First Information Report regarding murder of

his father Parmanand Paswan on 11.12.1990 at Karakat

(Kachhwan) Police Station and the same was recorded by P.W. 7

Shashi Bhushan, the Investigating Officer of Karakat

(Kachhwan) Police Station, which has resulted in registration of

Crime No. 110 of 1990 for the offence punishable under Section

302 of the Indian Penal Code against accused, Sambal Ram.

P.W. 5, Budhan Paswan is brother of deceased Parmanand

Paswan. These two witnesses are claiming to be an eye

witnesses to the incident of murder of Parmanand Paswan by the

appellant/accused.

B. It is case of prosecution that accused Sambal

Ram is also resident of village Amouna. On 11.12.1990, at about

11 P.M., food was being cooked at the house of Parmanand

Paswan (since deceased). His son P.W 4 Bucha Paswan was also

present at the house. He heard loud cry of Parmanand Paswan

for help. Parmanand Paswan was shouting that accused Sambal

Ram is killing him. P.W.4 Bucha Paswan along with his brother

Badshah Paswan rushed for help and saw that accused Sambal

Paswan was assaulting their father Parmanand Paswan by means Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

of butt of rifle. This incident was taking place in front of house

of P.W.3 Lal Muni Mahto. When P.W.4 Bucha Paswan and his

brother Badshah Paswan attempted to intervene for saving

Parmanand Paswan, the appellant/accused pointed a rifle at

them. In the meanwhile, other resident of the village such as

P.W.5 Budhan Paswan, P.W. 2 Krishna Sao, Mahendra Shah etc.

arrived at the spot. The appellant/accused ran away from the

spot. Injured Parmanand was then taken to the clinic of Dr.

Bhola Singh, where he died during course of his medical

treatment. That is how, P.W.4 Bucha Paswan went to Police

Station Karakat (Kachhwan) and lodged FIR with P.W.7 Shashi

Bhushan.

C. During course of investigation, the dead body

of Parmanand Paswan was sent for autopsy to Sadar Hospital

Hospital, Sasaram. P.W.6 Dr. Kumar Chitranjan Singh

conducted the postmortem examination. The spot was inspected

and blood as well traces of vomiting came to be seized.

Statement of witnesses were examined and on completion of

investigating, the accused came to be charge sheeted.

D. The charge for the offence punishable under

Section 302 of the Indian Penal Code was framed and explained

to the appellant/accused, who adjured the guilt and claimed trial. Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

E. In support of prosecution case, in all seven

witnesses came to be examined. Defence of the accused was

that of total denial. It is contended by the defence that the

deceased was under intoxication and had suffered a fall leading

to his death.

F. After hearing the parties, the learned trial court

was pleased to convict the appellant/accused and to sentence

him as indicated in the opening para of the Judgment.

3. We heard Ms. Surya Nilambari, the learned

Amicus Curiae appointed by this Court vide order dated

30.07.2019. She argued that evidence of P.W.4 Bucha Paswan is

not consistent with that of P.W.5 Budhan Paswan, though they

both are claiming to be eye witnesses of the incident. She

further argued that in all probability, P.W. 4 Bucha Paswan had

not seen the incident as house of P.W.3 Lal Muni Mahto is

situated at the distance of about 100 yards from the house of

P.W.4 Bucha Paswan. The dead body, according to the lerned

Amicus Curiae was only having two injuries and as such, by the

time P.W.4 Bucha Paswan reached on the spot of the incident,

the incident must have been over. It is further argued that it is

not probable that the deceased was in a position to cry. The

learned Amicus Curiae further argued that P.W.5 Budhan Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

Paswan is already disbelieved by the learned trial court for valid

reasons and as such, the appellant/accused is entitled for

acquittal.

4. As against this, the learned Additional Public

Prosecutor supported the impugned Judgment and order of

conviction and resultant sentence.

5. We have carefully considered the submissions

so advanced and also perused the record and proceedings

including oral as well as documentary evidence. We have also

perused the impugned Judgment and order. It is noted by us that

P.W.5 Budhan Paswan is disbelieved by the learned trial court

with a reason that he had not even claim before P.W.7 Shashi

Bhushan - Investigating Officer that he was an eye witness to

the incident. The learned trial court after assessing his evidence

came to the conclusion that he must have reached on the scene

of the occurrence just after the incident took place. However, the

learned trial court relying on the testimony of P.W.4 Bucha

Paswan, was pleased to hold that his version regarding the

incident is acceptable. Untimately the appellant/accused was

held guilty of the offence punishable under Section 302 of the

Indian Penal Code.

6. Now let us examined independently whether Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

the prosecution has proved that the accused has committed

murder of Parmanand Paswan. The defence is setting up a case

of accidental death of Parmanand Paswan caused by a fall. On

this background, it is a evidence of P.W.7 Shashi Bhushan,

Investigating Officer that he prepared inquest notes by

inspecting dead body of Parmanand Paswan in presence of

P.W.5 Budhan Paswan and sent the dead body for autopsy to

Sadar Hospital, Sasaram. The autopsy was conducted by P.W.6

Dr. Kumar Chitranjan Singh, Civil Assistant Surgeon of the

Sadar Hospital, Sasaam. It is in evidence of P.W.6 Dr. Kumar

Chitranjan Singh that during autopsy of the dead body, he found

following injuries;

a. Lacerated wound of size 2' X 1/2" X Skin deep

over left parietal bone.

b. Lacerated wound of size 1" X 1/2" X bone

deep over left temporal bone.

Evidence of P.W.6 Dr. Kumar Chitranjan Singh

further shows that extensive internal damage was caused by

these wounds. His evidence shows that there was fractured at

the left side of temporal bone of the dead body of size 4" X

1/2". Blood cloths were noticed by him at the left parietal

region of the dead body. P.W.6 Dr. Kumar Chitranjan Singh Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

further noticed that laceration of brain substance of the dead

body. He noticed undigested food in the stomach of the dead

body. With these findings, P.W.6 Dr. Kumar Chitranjan Singh

concluded that Parmanand Paswan died due to head injury

caused by hard and blunt substance. He testified that the

injuries noted by him on the dead body can be possible by the

butt of the gun. P.W.6 Kumar Chitranjan Singh vouched that

the injuries noted by him on the dead body were sufficient in

the ordinary course of nature to cause death of a human being.

In cross-examination, he stated that human body digest the

food in six hours. He stated that injuries noted by him on the

dead body are possible by push on hard and blunt surface with

great force. It is thus clear that deceased Parmanand Paswan

died because of head injuries suffered by him. Even if it is

assumed that deceased Parmanand Paswan was pushed with

great force on hard and blunt surface as suggested by the

defence then also the death is certainly homicidal and not

accidental. There are no circumstances on the record to infer

otherwise than to conclude that with such evidence, homicidal

death of Parmanand Paswan is proved by the prosecution.

7. Now let us examine whether it is proved by

the prosecution that the accused persons has caused death of Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

Parmanand Paswan and the act of the accused falls within the

definition of the term murder as seen from Section 300 of the

Indian Penal Code. For giving finding on this aspect, evidence

of P.W.4 Bucha Paswan is relevant. He claims to be an eye

witness who has lodged the First Information Report of the

incident. He is son of the deceased. He was residing with the

deceased in the same house at the time of the incident. The

incident took place in the neighborhood of the house of the

deceased. Time of the incident has coming on record from the

mouth of the prosecution witnesses is about 8 P.M. P.W.4

Bucha Paswan, a rustic villager is claiming that he was present

at the house at the time of the incident. It is a matter of

common knowledge that in villages after a days work, people

are generally at their houses. As the incident in question took

place in the vicinity of the residential house of the deceased

and P.W.4 Bucha Paswan, he is the most natural witness of the

incident in question. Undoubtedly he is a related witness and

therefore, his testimony is required to be scrutinized carefully

but at the same time, it is to be noted that being a related

witness does not mean that such a witness is an interested

witness. Witness is mean only when he derives some benefit

as a result of the litigation. In the case in hand, it is not even Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

remotely suggested that P.W.4 Bucha Paswan was hostile to

the accused or that he was having some enmity with the

accused. With this, let us see what is stated by P.W.4 Bucha

Paswan. As per his version when he was present at his house,

he heard shout of his father at about 8 P.M. His father was

shouting that Sambal Ram (the accused) is killing him. P.W.4

Bucha Paswan deposed that he then reached to this spot and

saw accused Sambal Ram hitting on the head of his father

Parmanand Paswan by means of butt of the rifle. P.W.4 Bucha

Paswan claimed that when he tried to intervene, accused

Sambal Ram pointed rifle at him and thereafter the accused ran

away. His injured father was then taken to the clinic of Dr.

Bhola where his father died. Then he lodged the report to the

Police Station. Cross-examination of this witness shows that

his father had not taken food prior to the incident. It is elicited

from this witness that the rifle was of two cubits length and his

father was being hit by both sides of that rifle. Wooden portion

of that rifle was one and half cubit long. He expressed his

inability to tell how many blows were delivered by the accused

on his father. This line of cross-examination of P.W.4, Bucha

Paswan cements the version of P.W.4 Bucha Paswan coming

on record from the chief examination. Therefore, it is not Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

possible to infer that as house of P.W.4 Bucha Paswan was at a

distance of 100 yards from the spot, he could not be an eye

witness to the incident. Evidence of this witness shows that he

rushed to the spot soon after hearing the shout of his father.

However, that does not mean that his father started shouting

after receiving the fatal blow. Deceased Parmanand Paswan

might have shouted upon noticing that the accused is coming

towards him with rifle in his hand. In cross-examination itself,

it is brought on record from mouth of P.W.4 Bucha Paswan

that at the time of the first blow of rifle on his father, he was

present at the spot. This shows that the deceased had given a

call for help upon noticing the approaching appellant/accused.

The learned trial court who has seen P.W.4 Bucha Paswan in

the dock has placed reliance on his version and as noted by us

there is nothing in his cross-examination which can cast a

shadow of doubt on his testimony. Hence, version of P.W.4

Bucha Paswan to our mind is fully trustworthy. The same is

duly corroborated by the FIR lodged by him with promptitude

to P.W.7 Shashi Bhushan, the Investigating Officer. It is thus

clear that from evidence of P.W.4 Bucha Paswan, the

prosecution has established that it was the appellant/accused

who had inflicted blows of butt of the rifle on the head of Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

deceased Parmanand Paswan.

8. Evidence of P.W.7 Shashi Bhushan, the

Investigating Officer shows that on the spot of the incident,

which was at the front side of the door of P.W.3 Lal Muni

Mahto, he noticed lot of blood so also traces of vomiting. P.W.3

Lal Muni Mahto so also P.W.1 Kameshwar Singh and P.W.2

Krishna Sao, though turned hostile to the prosecution have

stated that they had seen injured Parmanand Paswan lying in

front of house of P.W. 3 Lal Muni Mahto and that Parmanand

Paswan died in that incident. The evidence of P.W.4 Bucha

Paswan gains overwhelming corroboration from this evidence

on record.

9. We have noticed that injuries found on the

dead body while dealing with evidence of P.W.6 Dr. Kumar

Chitanjan Singh, the Autopsy Surgeon. We have also noted

extensive external damage caused by the wounds suffered by the

deceased at the hands of the appellant/accused. To reiterate, a

big fracture of 4"X1/2" was found on the left temporal bone of

the deceased. Brain matter of the deceased was found lacerated.

The deceased had suffered two lacerated wounds on left parietal

as well as temporal bones.

10. One may argue that as butt of the rifle is Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

stated to have been used in the incident of murderous assault,

the offence is not traveling up to the one punishable under

Section 302 of the Indian Penal Code. We may note that the

learned Amicus Curiae has rightly not pressed this point.

However, we deem it appropriate to dwelve on it.

11. Murder is a gravest form of culpable

homicide, which has its peculiar characteristic required to be

proved before a person is to be held guilty for committing

murder as defined U/s 300 of the I.P.C. It requires judicial

scrutiny of the prevailing facts. Merely the fact that death of

human being is caused is not enough to constitute offence of

murder. Unless one of the mental status mentioned in ingredient

of Section 300 is present, the act causing death cannot amount

to culpable homicide amounting to murder. It must be proved

that there was an intention to inflict the particular bodily injury

actually found to be present. The intention of the person causing

the injury has to gathered from careful examination of the facts

and circumstances of each case. The intention to cause the

requisite type of injury is a subjective inquiry and then there

would be further inquiry whether injury was sufficient in

ordinary course of nature to cause the death is of objective

nature.

Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

12. The principal question therefore would be

whether in the given facts and circumstances, the act caused by

appellant/accused Sambal Ram can be said to amount culpable

homicide amounting to murder as defined by Section 300 of the

Indian Penal Code. Each and every circumstance reflecting from

the record is required to be taken into account while drawing the

conclusion as to whether the act of the accused amounts to

culpable homicide amounting to murder or culpable homicide

not amounting to murder or offence of any other nature. In the

case in hand, evidence of P.W.4 Bucha Paswan shows that

without any provocation by the deceased, the accused herein

was giving blows of butt on head of the deceased. Those blows

were undoubtedly with a grate force as reflected from the

evidence of Autopsy Surgeon, P.W. 6 Kumar Chitranjn Singh.

This Autopsy Surgeon testified that Parmanand Paswan died due

to head injury caused by hard and blunt substance. This expert

witness, upon noticing the external as well as the internal

injuries, on the head of the deceased gave his opinion that the

injuries noted by him on dead body of Parmanand Paswan were

sufficient in the ordinary course of nature to cause a death of a

human being. From cross-examination of P.W.4 Bucha Paswan,

it is brought on the record by the defence that at the time of Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

incident, the appellant/accused had not consumed liquor. The

defence, in course of cross-examination of prosecution

witnesses has not brought on record any circumstances to

suggest that the accused was deprived of the power of self

control because of grave and sudden provocation given by the

deceased. It is not brought on record that there was sudden fight

between the appellant/accused and the deceased, during which,

without premeditation, blows of butt of the rifle were given. On

the contrary evidence of the Autopsy Surgeon indicates that with

great force, blows of the butt of rifle were given on vital part of

the body of the deceased, which virtually crushed the left side of

head of the deceased casing fracture injuries apart from

laceration of the brain matter. Thus, we note that the

appellant/accused was harbouring the intention of causing such

injury on head of the deceased which he was knowing to be

likely to cause death of Parmanand Paswan. That apart, even

expert witness P.W.6 Dr. Kumar Chitranjan Singh has

unequivocally stated that the injuries noted by him on the dead

body were sufficient in the ordinary course of the nature to

cause death of a human being. Giving forcefully blows on head

of the deceased indicates that what was intended was to inflect

such injuries as were sufficient in the ordinary course of nature Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

to cause death. Similarly giving forcefully blows by a rifle

having two cubits length on head of the human being is

undoubtedly an act which an offender certainly knows to be

imminently dangerous to such an extent that in all probability, it

can cause a death of a human being.

13. It is now well understood that in the scheme

of the Indian Penal Code "Culpable homicide" is the genus and

"murder" is the species and generally speaking "culpable

homicide" sans "special characteristics of murder is culpable

homicide not amounting to murder". The Indian Penal Code

recognizes three degrees of culpable homicide. The first degree

of culpable homicide is "murder" which is defined by Section

300 and made punishable under Section 302 IPC. The second

degree is culpable homicide as defined under Section 299 and

made punishable under Section 304 Part I, IPC . The third degree

of culpable homicide is made punishable under Section 304 Part

II, of the IPC. The Hon'ble Apex Court in the case of Willie

Slancy V/s State of M.P. AIR 1956 SC 116 has stated that

whether the accused causing the death of another and had no

intention to kill, then the offence would would be murder only

if, (1) the accused knew that the injury inflicted would be likely

to cause death, or (2) that it would be sufficient in the ordinary Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

course of nature to cause death or, (3) that the accused knew that

the act must in all probability could cause death and if the case

cannot be placed as high as that and the act is only likely to

cause death and there is no special knowledge, the offences

comes under Section 304(II), I.P.C. The Apex Court in the case

of Kirkar Singh V/s State of Rajasthan (1993) 4 SCC 238 has

again held that in a given case if the case does not fall in any of

the exceptions, it is the duty of the prosecution to prove that the

offence is of murder and the ingredients of clauses (1 to 4) of

Section 300 are satisfied. Keeping in mind this position of law,

we are of the firm view that the appeal is devoid of merit.

14. We put on record words of appreciation for

the able assistance rendered by Ms. Surya Nilambari, learned

Amicus Curiae, to this Court in arriving at the proper conclusion

for deciding in that appeal. We direct the High Court Legal

Services Authority to pay an amount of Rs.5,000/- to Ms. Surya

Nilambari, learned Amicus Curiae, for service rendered by her.

15. In the result, we hold that the prosecution

has certainly established that the accused had committed murder

of the deceased Parmanand Paswan. We see no reason to

interfere with the impugned Judgment of conviction dated

01.08.1995 and the order of sentence dated 04.08.1995 passed Patna High Court CR. APP (DB) No.271 of 1995 dt.30-11-2021

in Sessions Trial No. 154 of 1991 by the 7 th Additional Sessions

Judge, Rohtas, Sasaram and therefore, the order;

The appeal is dismissed.

A. M. Badar, J)

Sunil Kumar Panwar, J;- I agree.

Bhardwaj/-

( Sunil Kumar Panwar, J) AFR/NAFR AFR CAV DATE 23.11.2021 Uploading Date 30.11.2021 Transmission Date 30.11.2021