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2000 DIGILAW 438 (PAT)

Dhorha Mochi v. State Of Bihar

2000-03-16

R.N.PRASAD, S.N.PATHAK

body2000
Judgment S.N.Pathak, J. 1. This appeal is directed against the Judgment and order of conviction passed by Sri Shambhu-nath Sinha, Additional Sessions Judge, Munger, in Sessions Trial No. 571/84 with Sessions Trail No. 12/86 dated 16.5.1987. The appellant Dhorha Mochi was convicted under Section 302 of the Indian Penal Code and sentenced to undergo RI for life. Two other persons were also facing trial in the lower Court, namely, Nagar Mochi and Guleshwar Mochi, who were acquitted. 2. The case of the prosecution, as embodied in the First Information Report, was to the effect that on 23.5.1984 the informant Gano Mochi and his brother Ganesh Mochi (deceased) were searching for their hen and in course of this search they entered house of Dhorha, abused the informant and his family and demanded of them as to why they had entered inside the house. When the informant and his brother Ganesh Mochi protested, accused Nagar Mochi ordered for murderous assault. Then Dhorha Mochi was armed with bhala and Guleshwar Mochi armed with lathi rushed to assault the deceased and his brother. The informant and his brother both, fled away, but Ganesh Mochi fell down near the Bamboo clump. Subsequently Dhorha Mochi hit Ganesh on his chest to which he succumbed. Dhorha Mochi also hurled bhala blow upon the informant, but the latter sustained injuries upon his left palm when he warded off the blow. Thereafter Guleshwar Mochi dealt 2-3 lathi blows upon the informant. This occurrence was witnessed by Mahesh Mochi, Chhote Singh, Babban Singh, Dhanik Singh, Machhard Singh and others. 3. The appellant-accused had denied the occurrence and he alleged false implication on account of family dispute. It was also suggested to the PWs that both Ganesh Mochi and the informant were cutting Bamboo stealthily with khurpi and at the approaching sound (Aahat) they became apprehensive and so they fled for safety and in course of this fight, Ganesh Mochi fell down and sustained injury on his chest with khurpi and he died on account of this injury. 4. The prosecution examined in all 8 witnesses and brought on the record, the formal FIR (Ext. 3), the post-mortem report (Ext. 1), the Inquest report (Ext. 2), and the seizure list (Ext. 4) to prove its case. 5. PW 1 is Ramwati Devi, the mother of the deceased and the informant. 4. The prosecution examined in all 8 witnesses and brought on the record, the formal FIR (Ext. 3), the post-mortem report (Ext. 1), the Inquest report (Ext. 2), and the seizure list (Ext. 4) to prove its case. 5. PW 1 is Ramwati Devi, the mother of the deceased and the informant. This witness spoke of the search of the missing hen, the subsequent abuse hurled by Nagar Mochi and the protest of the informant and his brother and then the subsequent assault upon both the brothers by the appellant and his brother Guleshwar. She also spoke of the death of Ganesh Mochi on account of bhala injury by the appellant upon Ganesh Mochi (deceased). She also supported the occurrence of assault upon her son Gano Mochi by Guleshwar Mochi with lathi and by the appellant with bhala. PW 2 is Kaushalya Devi. She also supports the occurrence of assault upon the deceased and the informant at the hands of the appellant and Guleshwar near the bamboo clump. PW 3 is Dhanik Singh who came to the PO on hearing alarm and saw the dead body of Ganesh Mochi, PW 4 is Gano Mochi, the informant himself. He has related the alleged occurrence of assault stated in the FIR (Ext. 3) and which is stated in paragraph 2. PW 5 is Baban Singh. He went to the house of Gano Mochi on hearing alarm. He also supports the occurrence of the chase of the informant and his brother by Dhorha Mochi and his father and brother and then the subsequent assault upon Ganesh Mochi and the informant. PW 6 is the Doctor who performed autopsy on the dead body of Ganesh Mochi. He found one penetrating wound 3" x 2" x chest deep cavity. On dissection the Doctor found that the muscles underneath tissues were pierced. The wound had entered chest cavity and there was a hole in the right lung in its upper part. PW 7 is Dhanraj Singh, a witness to the inquest. PW 8 was the IO of the case. He visited the place of occurrence at 2.30 a.m. in the night between 23rd and 24th May, 1984. He seized blood-stained bhala, one brick bat and one khurpi used in cutting of leather. 6. PW 7 is Dhanraj Singh, a witness to the inquest. PW 8 was the IO of the case. He visited the place of occurrence at 2.30 a.m. in the night between 23rd and 24th May, 1984. He seized blood-stained bhala, one brick bat and one khurpi used in cutting of leather. 6. The above is the resume of the evidence on the record on the basis of which the learned Sessions Judge found the accused appellant guilty and convicted the appellant under Section 302, IPC and acquitted the other accused persons. 7. During the course of the argument, it was pointed out that as per the allegations, the assault upon the deceased and his brother (the informant) took place near the bamboo-clump, but PW 1 at paragraph 3 of her evidence said that the occurrence of brawl occurred in the aangan. The accused persons did not chase the deceased. From the aforesaid statements of the witness it was suggested that the P.O. changes and the occurrence as alleged by the informant is belied. But I may not inclined to take this criticism in its face value. This is so, because PW 1 has clearly stated that the bamboo clump is at a distance of 4-5 steps from her house. Moreover, at paragraph 3 she said that her aangan was fenced by tati which was in a damaged condition. It is further to be noted and a judicial notice can be taken of the fact that rustic people normally describe the open space in front of their house as aangan and so the damaged fencing of the aangan from which the bamboo clump was at a distance of 4-5 steps would indicate that, of course, the occurrence of brawl might have taken place in the open space (described as aangan) in front of the house of the informant. So, there is no change of place of occurrence. The situation of the bamboo clump at a distance of 4-5 steps from the house of the informant is also not going to change the place of occurrence, in such a way as to belie the occurrence of assault. It is further to be noted that PW 1 has clearly stated in chief itself at page 2 that the house of the accused-appellant is contiguous to the informants house and there is a common aangan (courtyard). It is further to be noted that PW 1 has clearly stated in chief itself at page 2 that the house of the accused-appellant is contiguous to the informants house and there is a common aangan (courtyard). The aforesaid circumstance established the fact that the criticism regarding the change of place of occurrence is not at all acceptable. The next criticism which was advanced on behalf of the appellant was to the effect that according to the statement of the informant in Court and in the FIR, Ganesh Mochi had fled for safety and then he fell down. So, the chance of falling on the ground mouthwise was very much there and hence, assault upon his chest was improbable. But in this connection, it is to be noted that the distance between the aangan of the informant and the bamboo clump is just 4-5 steps and therefore, there is no probability of the deceaseds running in such a speed as to make him stumble and fall mouthwise. Moreover, no presumption can be made as to how the deceased fell down. The chance of a man falling on his back cannot also be ruled out if a man takes to his heels. The statements of PWs including PW 5, Bab-ban Singh who was very much named in the FIR is clear to the effect that the appellant had dealt bhala blow upon the deceased on his chest. However, other PWs have also supported this very version and so there is no ground for assaulting that the deceased had fallen on the ground mouthwise. It was further suggested by the appellants lawyer that it is not understandable how the appellant identified the deceased and the informant in darkness because PWs have said that the light was a dark one. In this connection it is to be noted that the house of both the appellants and the informant existing in the same aangan and contiguous to each others and before the actual assault there was abuse and brawl and so the question of identification of the accused and the deceased loss its significance. If the accused could identify the informant and his brother, (deceased) it was very much probable for the informant to identify his assailants also. So the criticism in this connection is also beside the point. 8. If the accused could identify the informant and his brother, (deceased) it was very much probable for the informant to identify his assailants also. So the criticism in this connection is also beside the point. 8. So far the impact of assault is concerned, it was argued by the appellants lawyer that as per the report of the Doctor, there was only one injury on the chest and there is also the statement of PWs that only one bhala blow was hurled and hence there was no intention on the part of the appellant to cause the death of the victim. In this connection, I find that the Doctor who described the injury has clearly stated in his evidence that the injury was through and through and it had pierce of the chest cavity so much so that there was a hole in the right lung. The hole of right chest cavity was full of blood. It is, therefore, apparent that the bhala was used with force on the chest. The intention of the assailant is to be gathered from the circumstances and the manner of assault and the impact of the assault. It is further apparent that the act of the accused-appellant in causing assault upon the deceased was not a result of sudden provocation. There was already the entry of the informant and his brother into the house of the accused in search of missing hen and thereafter there was the brawl in which the appellants father abused the family members of the informant. So, there was already preparation for assault upon the deceased and his brother on account of alleged entry in their house by the informant and the deceased. So, I do not think the appellant can take advantage of sudden provocation in order to escape from the mischief of Section 302, IPC. At this very paragraph I would like to dispose of the argument of the appellants lawyer to the effect that the I.O. failed to find any trace of keeping hen in the house of the informant. So, I do not think the appellant can take advantage of sudden provocation in order to escape from the mischief of Section 302, IPC. At this very paragraph I would like to dispose of the argument of the appellants lawyer to the effect that the I.O. failed to find any trace of keeping hen in the house of the informant. It is to be kept in mind that the informant stated that he was having 3-4 hens and in such a circumstance I do not think, there can be any trace of any separate pan for nurturing or a rearing chicken or hens, poor people cannot be expected to keep separate niche in their house for keeping hens and cocks. The criticism in this connection is also to be lightly dismissed. There was a further criticism that the I.O. also found khurpi at the place of occurrence which he had seized and, therefore, this suggested probability of the deceased receiving injury on account of fall on the kliurpi. But, I do not think, this criticism will cut much ice. The informant had admitted that he had a separate hut for using it as a work-shop of leather. A Mochi normally uses khurpi for cutting leather and, therefore, any finding of khurpi near the hut cannot be ruled out. The chance of causing the nature of injury upon the deceased as described by the Doctor with khurpi is remote. The khurpi can be described as a sharp-cutting weapon, but it cannot be described as a sharp penetrating weapon and merely a fell upon such a khurpi cannot cause the injury which the deceased had sustained. 9. There was the last piece of argument advanced by the appellants lawyer as to how there was a bhala left at the place of occurrence, because there is no statement of any of the PWs that after piercing bhala blow inside the chest of the victim, the accused had taken the same out from the wound. However, in this connection, it is to be noted that bloodstained bhala was recovered by the I.O. from the place of occurrence and so the probability of the accused taking out the bhala from the body of the deceased is very much there, because subsequently the informant was also subjected to assault with bhala, which he warded off with his hand, resulting in an injury on his palm. So, there is very much the probability of bhala being jerked out from the body of the deceased by the accused. In darkness the informant who must have maintained distance from the accused and his victim might not have seen the bhala being jerked out from the body of the deceased. So the absence of any statement to this effect is explained. Now, connected with this criticism there was a criticism that there was neither any injury report of the informant nor any Doctor has been examined. In this connection, the statement of the I.O. is very much relevant. The I.O. had found blood on the ground near the bamboo clump. He has stated this fact at paragraph 4 of his evidence. He had further stated in paragraph 3 (page 2) that he had sent Gano Mochi, the informant, to Barahiya Hospital for treatment. Of course, production of any injury report or examination of any Doctor would have strengthened the prosecution case in this connection. But the missing lacuna in this connection itself cannot belie the statement of the I.O., who had found the informant in an injured condition and for which he had sent him to the hospital. 10. The last leg of criticism was to the effect that the alleged occurrence took place on 23.5.1984 at 8.30 p.m. and the FIR was registered on this date at 10.45 p.m. The FIR was sent from the police station on 24.5.1984, but the endorsement of the S.D.J.M. on 28.5.1984 creates doubt whether the FIR was registered on 23.5.1984 and it was despatched on 24.5.1984. Of course this laches on the part of the police is uncondonable and it may be a circumstances creating doubt. 11. But, however, laches on the part of the police now-a-days is a common feature and so the doubt resulting from the delayed receipt in the Court may not be taken very seriously in isolation, unless, of course, the alleged occurrence itself becomes suspect from the circumstances on the record. The suggestion give to the PWs regarding false implication do not appear to be convincing nor under the circumstances of the case, they appear to be inspiring any confidence. The suggestion give to the PWs regarding false implication do not appear to be convincing nor under the circumstances of the case, they appear to be inspiring any confidence. It is also not understandable how the I.O. shall be gained over by the poor Mochi (cobbler) in order to manufacture a false case to implicate the accused appellant so the circumstances on the record do not suggest any manipulation by the I.O. I find that the learned Sessions Judge who found the accused-appellant guilty under Section 302, IPC was not wrong in his approach. 12. In the result, I do not find anything on the record to interfere with the order of conviction and sentence. This appeal is accordingly, dismissed and the order of conviction and sentence is hereby affirmed. R.N.Prasad, J. 13 I agree.