Patna High Court
Nathuni Mahto @ Nathuni Pasi vs State Of Bihar on 26 April, 2002
Equivalent citations: 2002(2)BLJR1134
Author: Manohar Lal Visa
Bench: Manohar Lal Visa, Bal Krishna Jha
JUDGMENT Manohar Lal Visa, J.
1. This appeal is directed against the judgment and order dated 24.6.1987 passed by First Additional Sessions Judge, Motihari in Sessions Trial No. 245/58 of 1982 convicting and sentencing the sole appellant to undergo rigorous imprisonment for life under Section 302, Indian Penal Code.
2. Briefly stated, the case of prosecution is that informant Ainul Haque (P.W. 2) with his family members was living in Assam but three months prior to 15.5.1980, which is the date of occurrence, he returned to his native village-Mazurahan, police station--Turkaulia, District--East Champaran and on 15.5.1980 at about 10 a.m., he alongwith his brother Chand Mohammad (since deceased) and father Wahid Mian (not examined) was constructing a hut on a Gair Mazarua land situate adjacent south to the house of one Ganesh Mallah when appellant Nathuni Mahto alongwith co-accused Bhikhari Dewan came there and after abusing the informant retained back. On the same day in the night at about 1 O'clock, the informant alongwith his deceased brother Chand Mohammad and his, father was sleeping outside their incomplete hut when appellant Nathuni Mahto alongwith co-accused Bhikhari Dewan came there and awakened the informant and others by giving kicks. Informant awoke and saw appellant Nathuni Mahto armed with a knife and co-accused Bhikhari Dewan armed with a lathi and they both started assaulting the informant, his father and brother. Co-accused Bhikhari Dewan assaulted the informant by lathi and the appellant threw Chand Mohammad on the ground and gave a dagger blow on his abdomen. In the meantime, one or two other persons also came there and they also started assaulting the informant, his father and brother. At the time of occurrence, Kishori Sah (P.W. 3), Shambhu Singh (not examined) and other villagers came there and rescued the informant, his father and brother. Chand Mohammad became unconscious and he was brought to hospital where fardbayan (Exhibit-2) of informant was recorded by Sub-Inspector Md. Jamiluddin (not examined) on 16.5.1980 at about 7.00 hours. On the basis of fardbayan of informant, formal First Information Report (Exhibit-4) against appellant and Bhikhari Dewan and one and two unknown persons under Section 302/34, Indian Penal Code was drawn. Sub-Inspector Amul Ranjan Sarkar (P.W. 7), who at the time of occurrence, was posted as Officer-in-Charge of Turkolia police station, took up the investigation and visited the place of occurrence, seized blood stained soil and blood stained sack and recorded the statements of witnesses and after completing investigation, submitted charge-sheet against appellant, Bhikhari Dewan, Mokhtar Dewan and Laxmi Mahto. After taking cognizance, the case was committed to the Court of Session where charge under Section 302, Indian Penal Code against appellant and separate charge under Section 302 read with Section 34, Indian Penal Code against appellant, Bhikhari Dewan, Mokhtar Dewan and Laxmi Mahto @ Laxmi Mallah were framed and on denial of charges by appellant and other co-accused persons, they were put on trial. The Court below did not find co-accused persons, namely, Bhikhari Dewan, Mokhtar Dewan and Laxmi Mahto guilty of the charge under Section 302 read with Section 34, Indian Penal Code and, accordingly, acquitted them but it found appellant guilty under Section 302, Indian Penal Code and, accordingly, convicted and sentenced him, as stated above.
3. The case of appellant and other co-accused persons, as it appears from the trend of cross-examination of prosecution witnesses, was that when murder of deceased was committed by someone else they, on account of enmity, were falsely implicated in this case. No witness was examined on behalf of the appellant and other co-accused persons Who have been acquitted.
4. In order to prove its case, prosecution examined eight witnesses. Ainul Haque (P.W. 2) is informant. Amul Ranjan Sarkar(P.W. 7) is the Investigating Officer. Dr. M.P, Singh (P.W. 6) had held autopsy on the dead-body of deceased. Ganesh Sahani (P.W. 1), Kishori Sah (P.W. 3), Hari Shanker Sah (P.W. 5) are said to be eye-witnesses to the occurrence. Deokali (P.W. 4) is a tendered witness and Ram Eqbal Rai (P.W. 8) is a formal witness who has proved statement recorded in Para-4 of case diary (Exhibit-5).
5. Dr. M. P. Singh (P.W. 6), in his evidence, has said that on 16.5.1980 at 4 p.m., he held post-mortem examination on the dead-body of deceased Chand Mohammad and found one incised penetrated wound 2" x 1/2" x abdomen deep in the epigastric region of abdomen. On dissection, he found that spline was cut and there was bleeding in abdominal cavity and diaphragm was cut on the left side and there was blood clot on left side of thoracic cavity and rigor mortis was present. In his opinion, death was due to shock and haemorrhage caused by aforesaid injury which might have been caused by a Chura. He has proved post-mortem examination report which is marked Exhibit-1. From evidence of this witness, it is established that death of deceased was homicidal and he died of injury found on his abdomen which might have been caused by a Chura.
6. Ainul Mohammad (P.W. 2), the informant, in his evidence, has said that on the day of occurrence at about 12 O'clock in the noon he, alongwith his father and deceased brother Chand Mohammad, was contracting a house on Gair Mazarua land when appellant, alongwith co-accused Bhikhari Dewan came there and after giving him threatening not to construct house went back but he inspite of this threatening constructed the house and on the same day in the night he, alongwith his father and deceased brother, was sleeping on a mat outside the hut near its door when in the midnight, he awoke on receiving kicks and he saw appellant alongwith co-accused Bhikhari, Mokhtar and Laxmi there. Appellant was armed with a Chura and co-accused Bhikhari Dewan was armed with a Phatta and remaining co-accused person was armed with lathi. He was assaulted with Phatta by co-accused Bhikhari Dewan causing cut injury on right side of his head and appellant gave Chura blow on the abdomen of deceased. Co-accused Mokhtar and Laxmi assaulted his father and they also hurled lathi on him resulting in minor injuries. On his hulla, P.Ws. 1, 3 and Shambhu Singh (not examined) came there and when the appellant and his companions fled away, his deceased brother became unconscious and he was taken inside the house and was put on a Chatti (sack). He has further stated that his brother was taken to hospital where he was examined by doctor but he died on the same day and at hospital, his statement was recorded by police.
7. Ganesh Sahani (P.W. 1), Kishore Sah (P.W. 3) and Hari Shanker San (P.W. 5) have said that they saw the appellant giving Chura blow on the abdomen of deceased. P.W. 1 has said that at the time of occurrence, he was sleeping in his Angan when he was awakened by his wife and when he came out of his house, he saw appellant alongwith co-accused Bhikhari Dewan, Mokhtar Dewan and Laxmi Mahto going and when he enquired from them, appellant slapped him and at that time, appellant was carrying a Chura whereas co-accused Bhikhari Dewan was armed with a Phatta and Laxmi and Mokhtar were armed with lathi and they all went to the newly constructed hut of informant where informant and his father and brother were sleeping and appellant and his companions awakened them by giving kicks and co-accused Bhikhari Dewan assaulted the informant with Phatta causing injury on the head of informant and co-accused Mokhtar and Laxmi also assaulted the informant with lathi and appellant gave a Chura blow to deceased. P.W. 3 has said that at the time of occurrence, he was at his Darwaza situate about sixty to seventy yards towards south from the house of informant and at about 10'clock in the night, he heard hulla of the father of informant and when he alongwith Shambhu Singh went there, he saw that co-accused Bhikhari Dewan, Laxman Hazra and Mokhtar were assaulting the father of informant and appellant threw the deceased on the ground and gave a Chura blow on his abdomen and, thereafter, appellant, with his companions, fled away. P.W. 5 has said that at the time of occurrence, he was at the Darwaza of P.W. 3 and on hearing hulla when he went to place of occurrence, he saw appellant armed with Chura and co-accused Bhikhari and Mokhtar aimed with lathi there and also saw that appellant gave a Chura blow on the abdomen of deceased and co-accused Bhikhari and Mokhtar assaulted the informant and his father with lathi. He has not named co-accused Laxmi Mahto.
8. The Court below has observed that he co-accused Mokhtar Dewan and Laxmi Hazra are not named in the fardbayan, which is the earlier statement of informant and it seems that a story has subsequently been developed that they were also with the appellant at the time of occurrence and had participated in the commission of offence and assaulted the father of informant It further observed that father of informant has not been produced by prosecution for his evidence and there is nothing on the record to prove that he had also received any injury at the time of occurrence. The Court below held that it appears that these two co-accused persons were implicated in the case at a later stage by developing the prosecution story and had they taken part in the commission of offence, they must have been named by the informant in his fardbayan because they are co-villagers of informant. About co-accused Bhikhari Dewan, who is named in fardbayan of informant in which there is allegation against him that he assaulted the informant with lathi, the Court below held that there was no medical evidence on record to show that informant had sustained any injury on his person and even the Investigating Officer has not stated that he had found any injury on the person of informant which could have prompted him to issue a requisition for examination of injury found on informant by a doctor. It further held that there is no evidence on record to show that all the aforesaid three accused persons had committed any overt act leading the Court to draw an inference that they had intention with the appellant for causing the death of deceased. On the basis of these findings, the Court below gave benefit of doubt to co-accused persons, namely, Bhikhari Dewan, Mokhtar Dewan and Laxmi Hazra and acquitted them but about the appellant, the Court below, holding him responsible for death of deceased, convicted and sentenced him under Section 302, Indian Penal Code.
9. The prosecution witnesses have fully supported the case of prosecution that at the time of occurrence, appellant gave a dagger blow on the abdomen of deceased resulting in his death. The case of prosecution is that informant and his family members had returned to village from Assam about three months ago from the date of occurrence. There is nothing on record to show that appellant had any enmity with the informant and his family members. The case of prosecution is that informant and his family members were constructing a hut for their living on a Gair Mazarua land in day time when appellant alongwith co-accused Bhikhari Dewan came there and abused them and, thereafter, they both went back. It is not the case of prosecution that at the time of construction of hut by informant alongwith his father and deceased brother on a Gair Manama land, the appellant alongwith Bhikhari Dewan did any overt act except abusing them. The further case of prosecution is that on the same day in the night, appellant alongwith Bhikhari Mahto came to the place of occurrence and after giving kicks to informant, his father and deceased brother, awakened them and, thereafter appellant, after throwing the deceased on the ground, gave a dagger blow on his abdomen. There does not appear any motive on the part of the appellant to commit the murder of deceased. About intention to cause death of deceased, I find that appellant was already armed with a dagger and had he any intention to commit murder of deceased, there was no need for him to awaken not only the deceased but his brother and father also by giving kicks to them when he found the deceased already sleeping. Admittedly, there was no repetition of blow. Only one blow by dagger was given on the abdomen of deceased and as per evidence of P.W. 6, the wound caused on the abdomen of deceased by the dagger blow of appellant was 2" x 1/2" x abdomen deep. This conduct of appellant shows that he had no intention to cause death or to cause such bodily injury as was likely to cause death. But, then appellant was armed with a dagger with which he inflicted injury on the abdomen of deceased, therefore, I have no hesitation in coming to the conclusion that at the time of occurrence, he had knowledge that his action of giving dagger blow on the abdomen of deceased was likely to cause death. I, therefore, find that the case of appellant falls within the purview of Part II of Section 304, Indian Penal Code.
10. Considering the entire materials on record, the conviction of appellant under Section 302, Indian Penal Code is converted in his conviction in Part II of Section 304, Indian Penal Code and his sentence of imprisonment for life is reduced to rigorous imprisonment for five years.
11. In the result, this appeal is dismissed with modification, as indicated above. The bail bonds of appellant, who is on bail, stand cancelled and he is directed to surrender before the Court below to serve out the remaining period of sentence.
B.K. Jha, J.
I agree.