SUPREME COURT OF INDIA

Before:- M.B. Shah and K.G. Balakrishnan, JJ.

Criminal Appeal No. 491 of 2001 [Arising out of SLP (Crl.) No. 3186 of 2000]. D/d. 10.4.2001.

Nihore Koeri and Others - Appellants

Versus

State of Bihar - Respondent

A. Evidence Act, 1872, Section 3 - Protest petition - Appreciation of evidence - Consistent statement of eye-witnesses that it was accused who gave the blow on head of deceased - Held, protest petition would not falsify the consistent statement of witnesses.

[Para 4]

B. Indian Penal Code, 1860, Section 304 Part II - Conviction - Alteration in - Land purchased by accused from complainant side - Dispute between the parties - On the day when the accused was constructing wall over the said land, there was a quarrel between the parties - There was an assault on the deceased and witnesses - Trial Court found that accused had no intention to kill or to cause such bodily injury as is likely to cause death - Conviction of appellants altered from Section 304 Part I to Section 304 Part II.

[Paras 5 to 8]

Cases Referred :-

Lal Mandi v. State of West Bengal, 1995(2) All India Criminal Law Reporter 1 (SC).

ORDER

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 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 suppressing 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 Ramdhar Tiwari gave a gandasa blow on the head of his brother Nizammuddin. Thereafter, accused Kharpatty 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 evidence [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 witnesses. 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 persons shows clearly that accused persons caused death of Nizamuddin 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 Indian Penal Code.

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 imprisonment 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, 1973. 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 Indian Penal Code 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 convicted for the offence punishable under Section 304 Part-II and Section 149 of the Indian Penal Code and are sentenced to undergo rigorous imprisonment for five years.

9. The appeal stands disposed of accordingly.

Orders accordingly.