Krishna Tiwary And Anr. vs State Of Bihar

1. By the Judgment and order dated 16th September, 1992 Additional Sessions Judge, Siwan in Sessions Trial No. 267 of 1991 convicted Krishna Tiwary (Accused No. l) for offence punishable under Section 302/109 read with Section 111 of the Indian Penal Code (for short the 'IPC') and Dadan Tiwary (Accused No. 2) for the offence punishable under Section 302 of the IPC for causing murder of Paramhans Tiwary and sentenced both the appellants to undergo imprisonment for life for the aforementioned offences. Dadan Tiwary was also found guilty and convicted for the offence punishable under Section 307 IPC for attempting to commit the murder of Anil Tiwary, son of deceased Paramhans Tiwary and was sentenced to suffer rigorous imprisonment for five years. The sentences were to run concurrently. Against the said judgment the appellants preferred Criminal Appeal Nos. 366 and 395 of 1992 before the High Court of Patna. By judgment and order dated 23rd September, 1994 the High Court maintained the conviction of the appellants under Section 302/109 read with Section 111 and under Section 302 IPC respectively. However, the conviction of Dadan Tiwary (A-2) under Section 307 IPC causing injury to Anil Tiwary was modified and he was convicted under Section 324 for causing simple hurt. That order is under challenge by filing these appeals. By the order dated 28-8-1995 this Court granted leave to appeal by limiting only to question of nature of offence and the sentence.

2. It is the prosecution case that appellant No. 1 (Krishna Tiwary) is the father of appellant No.2 (Dadan Tiwary). Krishna Tiwary and his son were staying on the first floor and (Deceased) Paramhans Ttwary, brother of appellant No. 1 was staying along with his sons and others on the ground floor. On 6th March, 1991 at about 9.00 p.m. Anil Tiwary lodged the FIR at Police Station Siwan, district Siwan wherein it was stated that an incident took place at about 7.00 p.m. when Dadan Tiwary brought back his jeep to his house with Manoj Kumar (cleaner of the Jeep). The jeep was parked near the door and Dadan Tiwary went into the courtyard. Manoj Kumar was standing at the main entrance of the door of the house. As there was obstruction in going and coming in the house, the deceased Paramhans Tiwari told Manoj to go away from the door but he did not do so and, therefore, he removed him from the door by catching his arms. Because of this incident Manoj became angry, went inside the house and informed about the incident to Dadan Tiwary and Krishna Tiwary. Both Krishna Tiwary and Dadan Tiwary became angry and came down from the first floor. It is stated that Krishna Tiwary caught the collar of the shirt of Paramhans Tiwary and said 'maro sale ko'. Upon this Dadan Tiwary, who had come with a knife gave two knife blows to the deceased, one fell on the chest and the other landed on upper part of the eye-brow. Due to this deceased fell down. Anil Tiwary ran to save him but Dadan Tiwary gave one knife blow on his person. During that time his elder brother and others came there and saw the occurrence. As there was profuse bleeding from the wounds, the deceased became unconscious and was taken to the hospital but he died on the way. After completing the investigation the accused were charge-sheeted, tried and convicted as stated above.

3. At the time of hearing of these appeals learned senior counsel for the appellants submitted that taking the evidence as it is, the conviction of the appellants under Section 302 or 302 read with Section 109 or 111 IPC cannot be sustained and for this purpose he has taken us through the entire evidence.

4. In our view, there is much substance in the contentions raised by the learned senior counsel for the appellants. From the evidence on record it is apparent that incident took place all of a sudden. It has been admitted by the prosecution witnesses that prior to the incident relations between the brothers were cordial. It has been specifically stated by informant P. W. 7, Anil Tiwary in his cross-examination that they were having best of relations with the accused prior to the incident. He has also denied the suggestion that there was property dispute between them. The witness has also admitted that the appellant Krishna Tiwary came empty handed and that incident took place because they scolded Manoj Kumar and deceased removed him from the middle of the door. He has also stated that after coming down Krishna Tiwary caught hold the collar of Paramhans and asked him why his cleaner was beaten. So, it is apparent that some quarrel took place between the deceased and Krishna Tiwary. At that moment, it is alleged that Krishna Tiwary uttered the word 'assault' and thereafter Dadan Tiwary inflicted two knife blows. It is true that first knife blow proved fatal; with regard to the second knife blow, admittedly, it is a simple injury which is skin deep. From the record, it is apparent that the prosecution has suppressed the evidence of other witnesses, particularly that of Manoj Kumar who was the cause of quarrel. However, taking the prosecution case as it is, it is apparent that the role played by A-1 is absolutely limited. Therefore, the trial Court has convicted him by resorting to Sections 109 and 111 of IPC. Further, it is admitted that relationship between brothers and the family members was cordial prior to the incident. The incident took place all of a sudden and without any premeditation. Manoj, cleaner of the appellant was standing in the middle of the door and the ladies of the house were having obstruction in coming and going out from the house, therefore, he was scolded by deceased and removed from that place by use of force. It appears that he conveyed something, which has not come on record because Manoj is not examined, to the appellants. Appellants came down and the quarrel took place between deceased and Krishna Tiwary (A-l). In such a sudden quarrel and in heat of passion, appellant No. 2 son of Krishna Tiwary. A-1, inflicted a fatal blow to the deceased. Further, he has not acted in any cruel or unusual manner nor he has taken any undue advantage. Hence, at the most appellant No. 2 would be liable to be convicted for the offence punishable under Section 304 Part-I IPC and the appellant No. 1 for the offence under Section 304 Part-I read with Section 109 and Section 111 IPC. Further, the conviction of A-2 under Section 324 IPC for causing simple hurt to witness Anil Tiwary also requires to be maintained. For the sentence for the said offences, it has been pointed out by the learned counsel for the appellants that A-2 has undergone imprisonment for more than nine years and A-1 has undergone sentence of about five years. Considering the facts and circumstances of the case, in our view, sentence undergone by the appellants would be sufficient to meet the ends of justice and we do so. Accordingly, the appeals are allowed to the aforesaid extent. Appellants who are in jail be released forthwith, if not required in connection with any other case.