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1994 DIGILAW 306 (PAT)

Kamal Mandal v. State Of Bihar

1994-09-14

L.N.PRASAD, R.N.PRASAD

body1994
Judgment R.N.PRASAD and L.N.PRASAD JJ. 1. The sole appellant, Kamal Mandal, has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life by judgment and order of conviction dated 30-5-1990 in Sessions Case No. 377 of 1984. 2. The case of the prosecution in brief is that on 14-12-1982 at about 6-30 p.m. the informant Lila Devi and her husband Mahadeo Mandal, were ploughing their field situated at village Bandri P. S. Saraiyahat. The appellant and his wife were irrigating their field near the aforesaid field. The appellant came to the place of occurrence and asked not to plough the field unless the same is partitioned. The husband of the informant replied that this land has already been partitioned between them and he has right to plough the land. On this altercation took place between them and it is said that the appellant gave spade blow from the blunt portion on the head of Mahadeo Mandal, the deceased, who fell down and became unconscious. It has also been alleged that Bhagwati Devi, wife of the appellant, also assaulted the informant by fist and slap. On Hullah, several witnesses came at the place of occurrence. 3. On the written report of the informant first information report (Ext. 6) was drawn on the same day at 11 a.m. The injured was sent to Saraiyahat State Dispensary where the injury report (Ext. 3/1) was prepared. Thereafter, he was sent to Dumka hospital for treatment where he died in the night. After investigation charge-sheet was submitted against the appellant for the offence under Section 302/34 of the Indian Penal Code. On receipt of the charge-sheet in the Court, cognizance was taken and the case was committed to the Court of Session. At the initiation of the trial, charge under Section 302 of the Indian Penal Code was framed against the appellant and after conclusion of the trial he was convicted for the offence under Section 302 of the Indian Penal Code and was sentenced to imprisonment for life as stated above. 4. The defence of the appellant was that he was innocent and had been falsely implicated in this case. 5. The prosecution in support of its case examined 16 witnesses out of whom PWs. 2,3,7 and 9 were tendered. 4. The defence of the appellant was that he was innocent and had been falsely implicated in this case. 5. The prosecution in support of its case examined 16 witnesses out of whom PWs. 2,3,7 and 9 were tendered. PW 10 is the doctor, who treated the deceased at Saraiyahat State Dispensary and prepared injury report (Ext. 3/1) ; PW 12 is the doctor, who held post-mortem over the dead body (Ext. 4); PW 15 recorded the first information report and handed over the investigation of the case to PW 16 and subsequently took over the charge of investigation on 19-12-1982 and submitted charge-sheet in this case. PW 16 took over the charge of investigation of the case on 14-12-1982 and subsequently handed over the charge of investigation to PW 15 on 19-12-1982. PWs 1, 4 and 5 did not claim to have seen the actual occurrence. PW 6 claimed to have seen the occurrence and deposed that the appellant gave blow from the wooden portion (Beant) of the spade. PW 8 claimed to have seen the occurrence and deposed that the appellant gave three blows to the deceased. PWs 11 and 13 were declared hostile. 6. Learned counsel for the appellant at the very outset submitted that in this case occurrence has not been denied. However, he contended that the facts of the case do not constitute an offence under Section 302 of the Indian Penal Code as there was no intention to kill and thus the conviction and sentence under Section 302 is bad in law. It is an admitted position that the appellant and the deceased were cousion brothers. PW 14, the informant, has supported the case as made out in the first information report. From the first information report as well as from the evidence of PW 14 it appears that there was land dispute between the appellant and the deceased.. They were working in their fields. The appellant came near the deceased who was ploughing his field and asked not to plough the field unless the land is partitioned. When the deceased said that the land has already been partitioned and he has right to plough the land, there was some altercation and the appellant is said to have given a spade blow from its blunt portion on the head and not from the edge portion of the spade. When the deceased said that the land has already been partitioned and he has right to plough the land, there was some altercation and the appellant is said to have given a spade blow from its blunt portion on the head and not from the edge portion of the spade. There is nothing on the record to show that the appellant gave blow from its edge portion or he repeated the blow. The doctor, who held post-mortem over the dead body has been examined as PW 12 in the case. PW 12 in his cross-examination has stated that he found only one ante-mortem injury which was stitched. The other injuries were found only on dissection. PW 14 the informant, has also deposed that only one blow was given by the appellant. It is also obvious from Ext. 6 and from the evidence of PW 14 that there was no premeditation and the occurrence took place for land at the spur of the moment. Thus it is obvious that there was no intention to kill. In a similar circumstance the Supreme Court in the case of Hari Ram v. State of Haryana, AIR 1983 SC 185 has held that where occurrence takes place in the heat of altercation and only one blow is given, it cannot be said that there was intention to kill and set aside the conviction under Section 302 of the Indian Penal Code. 7. On consideration of the entire facts and circumstances of the case and the submissions made by the parties we find that there was no intention to kill. Accordingly, the conviction under Section 302 of the Indian Penal Code is set aside and we convict the appellant for the offence under Section 304 Part 1 of the Indian Penal Code and sentence him to undergo imprisonment for 10 years. The appeal is dismissed with modification, as above. 8. Learned counsel for the appellant, however, says that the appellant is in jail since 1982 and has already served the sentence awarded by this Court. If the statement of the counsel is found correct the appellant shall be released forthwith, if not required in any other case. Let the copy of judgment and trial Court record be sent to the trial Court forthwith.