JALESHWAR SINGHversusSTATE OF BIHAR

                        (2009] 8 S.C.R. 130


A                      JALESHWAR SINGH
                                v.
                         STATE OF BIHAR
                (Criminal Appeal No. 126 of 1999)

                           MAY 6, 2009
8
        [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)

         Penal Code, 1860 - ss. 307 rlw 110 - Dispute between
  parties - Exhortation by accused and thereafter infliction of
c fatal blow by other accused - Conviction of accused ulss. 302
  rlw 109 and sentenced to imprisonment for life, by High Court
  - On appeal, held: Deceased's wife and his father stated that
  there were physical fights abuses - Accused persons were
  armed - There was no direct exhortation to kill but was to the
D effect that deceased and others should not be permitted to
  run away and should be attacked - Thereafter, other accused
  inflicted blow on deceased - However, evidence of the said
  witnesses different as to manner of exhortation - Hence,
  accused to be convicted u/ss. 307 rlw 110 with 7 years of
E custodial sentence.
        In this appeal, the order of courts below, convicting
    the appellant no. 1-accused under ss.302 read with s.109
    IPC, is under challenge.

F       Partly allowing the appeal, the Court

      HELD: PW-4 is the informant i.e. wife of the
  deceased and PW-3 is the father of the deceased. From
  the evidence of PWs 3 and 4 it is clear that there were
  physical fights abuses. At the time of abuses except PWs
G                                                                  .j
  3 and 4 nobody else was there. The other persons came
  there just to stop the fight hearing noise on the road. On
  a close reading of the evidence, it is seen that the
  accused persons were armed. There was really no direct           4
H                              130
       JALESHWAR SINGH v. STATE OF BIHAR                   131


exhortation to kill but the same was to the effect that the       A
deceased and others should not be permitted to run away
and should be attacked. On hearing the exhortation
accused no. 2 pierced the spear to the chest of the
deceased. The evidence of PWs 3 and 4 are different as
to the manner of exhortation. One says 'maro sale                 B
Chintamani ko' while the other said 'maro sale ko jaan se'.
The words 'jaan se' appears to be entered later in the
records. Thus, the appropriate conviction would be under
section 307 read with section 110 IPC. Custodial sentence
of 7 years would meet the ends of justice. (Paras 3 and           c
4] (134-H; 135-A-D]

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 126 of 1999.

    From the Judgment & Order date.d 26.09.1997 of the High       D
Court of Judicature at Patna in Crl. Appeal No . 201 of 1991.

    Ambhoj Kumar Singh and Ratan Kumar Choudhuri for the
Appellant.

     Anukul Raj and Gopal Singh for the Respondent.               E

     The Judgment of the Court was delivered by

     DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
by Accused No.1 who alongwith two others faced trial before       F
learned Sessions Judge. Present appellant was convicted
under Section 302 read with Section 109 of the Indian Penal
Code, 1860 (in short the 'IPC'). Accused No.3-Bir Bahadur
Singh was convicted under Section 302 IPC. Both A-1 and A-
3 were sentenced to imprisonment for life. A-3 was additionally   G
convicted under Section 324 IPC. The two appellants before
the High Court were acquitted_ of the charge under Section 307
read with Section 149 IPC and Section 307 IPC respectively.
The trial Court however held the third accused Hari Shankar

                                                                  H
    132      SUPREME COURT REPORTS                  [2009] 8 S.C.R.

                                                                        •
A Singh @ Timal Singh guilty in terms of Section 324 IPC. But
  taking into consideration the your age instead of sentencing him
  directed him to be released on bail on executing interim bail
  bonds of Rs.2,000/- or two sureties of like amount. Only A-1
  and A-3 preferred an appeal before the high Court.
B
       2. Prosecution version in a nutshell is as follows:

         A case was registered in Taraiya Police Station in the
   district of Chapra on 22nd July, 1987 on the basis of fard beyan
   (Ext-3) recorded by S. I. Dashrath Singh of Marhawrah P.S on
C 21st July, 1987 at 10.30 p.m. in the State Dispensary on the
   statement of one Sharda Devi (P.W.4) wife of late Chintamani
   Singh of village Sarai, P.S. Taraya in the district of Saran. The
   informant had gone to Marhaura State Dispensary along with
   body of her husband who was seriously injured in an incident
D and there her husband was declared dead by the doctor and
   on information, Police arrived and recorded her statement. She
   stated before the Police that on the same day at about 5.30
   p.m. when she was in her house, she heard hulla. Thereafter,
   she came out and saw Bir Bahadur Singh Jaleshwar Singh and
E Timal Singh of the same village (Sarala) present holding Shala
   in their hands and her husband Chitamani Singh was also there.
   According to her, Jaleshwar Singh told the accused "Maro"
   (assault) on which Bir Bahadur Singh inflicted a bhala blow in
  the abdomen of her husband. Then the informant rushed to the
F rescue of her husband and Bir Bahadur Singh also inflicted a
   bhala blow which hit her in the finger of her right hand. However,
  her father-in-law Ram Nigahi Singh and her son Sanjay Singh
  also came to her rescue but all the three accused persons
  attacked them with bhala. The bhala which had pearced the
G abdomen of her husband was pulled out at that time and her
  husband died instantaneously. According to her apart from her
  husband, she herself, her son Sanjay and her father-in-law Ram
  Nigahi Singh had also received injuries in this occurrence and
  some persons had collected at the place of occurrence. They
H included, Abhay Kumar Singh (P.W.1), Raghunath Singh and
           JALESHWAR SINGH v. STATE OF BIHAR                  133
                 [DR. ARIJIT PASAYAT, J.]

      one Yogendra Singh. She however, stated that the other two ·A
      injured persons who were taken to Hospital at Chapra, would
     give further details about the assailants in this case. According
     to her, the cause of occurrence was some dispute between the
      two parties regarding a piece of land. On the information
     received by the local Police from the Chapra Hospital, a Police B
     Officer who happened to be the ASL of Bhagwan Bazar P.S.
     had reached the Sadar Hospital, Chapra at 10.00 a.m. on 22nd
I
     July, 1987 and he had also recorded the statement of Ram
     Nigahi Singh (PW-3) in the form of a fa rd beyan (Ext-3/1 ).
     However, since the case was registered on the basis of the     c
     earlier statement of Sharda Devi, this fardbeyan when received
     by the 1.0. of Taraya Police Station was kept on the record.
     While P.W.3 was admitted in injured condition in the Surgical
     ward of Chapra Hospital, he stated before the Police Officer
     of Bhagwan Bazer P.S. that on the previous day, i.e.,on 21st D
     July, 1987 at about 5.30 p.m. while he was sitting at his Bathan
     he saw that Jaleshwar Singh, Bir Bahadur Singh and Hari
     Shankar Singh, were trying to transplant paddy in a chunk of
     field of this witness by encroaching upon his land. He intervened
     and prohibited them from doing so and there was some E
     altercation between the two :parties. However, he returned to
     his Darwaja after asking them not to do so and they also went
     away making some utterances but, subsequently, they came to
    the Darwaja of the informant. There, Jaleshwar Singh is said
    to have instigated his two sons, the other two accused, to
    assault and kill and the other two accused., i.e., Bir Bahadur F
    Singh and Hari Shankar Singh brought Shala from the house
    and Jaleshwar also brought Shala. His further case is that Bir
    Bahadur inflicted a Shala blow on his grandon Sanjay Singh
    who fell down and at that moment the son of this witness namely,
    Chintamani Singh came and Bir Bahadur Singh also inflicted G
    a bhala blow in his abdomen and Chintamani Singh fell down.
    When this witnesses proceeded to save his son, he was also
    attacked and assaulted with bhala. He also sustained some
    injuries. Thereafter, Sanjay was again assaulted by accused
    persons with bhala. However, the female members of his family H
    134     SUPREME COURT REPORTS                 [2009) 8 S.C.R.


A also came on hulla and when the daughter in-law of this
  witness, namely, Sharda Devi, intervened, she was also
  assaulted and she sustained injuries. According to him, on
  hearing his cries for help several persons of his village,
  including Raghunath Singh, Jay Narayan Singh, Jogindra Singh
B and Parmeshwar Singh also came and they intervened and the
  assailants then left the place. However, the son of this witness
  died on the spot as a result of sustaining injuries by bhala on
  his abdomen and this witness was taken to the hospital where
  he was undergoing treatment. The Police officer who was
c entrusted with investigation Shyam Deo Singh (PW-9) recorded
  the statements of witnesses and inspected the place of
  occurrence and after procuring the post mortem report and on
  completing the investigation submitted charge sheet in the case
  against the three accused persons under various sections of
  IPC including Sections 302, 307, 324, 302/34 and also under
0
  Section 109 IPC. Accordingly, cognizance of the case was
  taken and the case was committed to the Court of Session.
  Charges were framed separately against three accused
  persons of this case by the learned Sessions Judge, Chapra.

E     The accused persons were held to be guilty as noted
  ab0ve. Since the accused persons pleaded innocence, trial
  was held. The High Court on appeal held that so far as
  conviction of appellant No.1 is concerned, he was the person
  who gave the order and after that a fatal blow was inflicted by
F appellant No.2 on the deceased. He has been rightly convicted
  under Section 302 read with Section 109 IPC and so far as
  appellant No.2 is concerned he was convicted under Section
  302 IPC.

G        SLP by accused no.2 has been dismissed by order dated
    2.3.1998. the present appeal is by A-1.

       3. In support of the appeal, learned counsel for the
  appellant submitted that the evidence of PW-1, the eye witness
  clearly shows that case of Section 302 read with Section 109
H IPC is not made out. PW-4 is the informant i.e. wife of the
         JALESHWAR SINGH v. STATE OF BIHAR                   135
               [DR. ARIJIT PASAYAT, J.]
deceased and PW-3 is the father of the deceased. From the           A
evidence of PWs 3 and 4 it is clear that there were physical
fights abuses. At the time of abuses except PWs 3 and 4
nobody else was there. The other persons came there just to
stop the fight hearing noise on the road. On a close reading of
the evidence is seen that the accused persons were armed.           B·
There was really no direct exhortation to kill but the same was
to the effect that the deceased and others should not be
permitted to run away and should be attacked. On hearing the
exhortation accused No.2 pierced the spear to the chest of the
deceased. The evidence of PWs 3 and 4 are different as to           c
the manner of exhortation. One says "Maro Sale Chintamani
Ko" while the other said "Maro Sale Ko Jaan Se". The words
"Jaan Se" appears to be entered later in the records.

       4. That· being so, the appropriate conviction would be
under Section 307 read with Section 110 IPC. Custodial              D
sentence of 7 years would meet the ends of justice. The appeal
is allowed to the aforesaid extent. The appellant shall surrender
to custody to serve the remainder of sentence.
N.J,                                     Appeal partly allowed.     E