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2001 DIGILAW 1031 (PAT)

Fekan Mull v. State Of Bihar

2001-11-12

INDU PRABHA SINGH

body2001
Judgment I.P.Singh, J. 1. All the appellants have been convicted under Section 304/II of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for seven years each. They were further sentenced to undergo R.I. for seven years for the offence under Sections 304/149, IPC but no separate sentence was awarded by the Court below. Appellant Fekan Mull has been further sentenced to undergo R.I. for two years for the offence under Sections 304/114, IPC. The appellant Pukar Mull was further sentenced to undergo R.I. for three months for the offence under Section 323, IPC. However, all the sentences were ordered to run concurrently. 2. The prosecution case, in short, is that the informant Ram Sanehi Devi and her son Gautam Mull (deceased) were sitting in Bathan at about 5 in the evening of 11.5.83. It is alleged that all the above-named appellant who were the magnates of the informant had cut bamboo from the bamboo clump of the informant few days prior to occurrence. It is said that when the informant was making enquiry in respect of the cutting of the bamboo and in course of the said enquiry the appellants started abusing the informant, she protested and asked them not to abuse and this infuriated the appellants. It has been alleged that the appellant Fekan Mull ordered the other appellants to assault the informant and to kill the deceased Gautam Mull, son of the informant. On the order of the appellant Fekan Mull the other appellants namely, Shankar Mull, Yogendra Mull, Pukar Mull, Umesh Mull and Mahesh Mull (whose trial has been bifurcated) got the deceased Gautam Mull fallen down on the ground and they assaulted him with lathi and danda. It has been alleged that when the informant intervened to rescue her son Gautam Mull, the appellant Pukar Mull assaulted her with lathi causing injury on her left hand. All the appellants assaulted with brick bat and danda. The deceased, Gautam Mull, became unconscious due to the assault an blood oozed out from his head. Thereafter the informant raised alarm and the witnesses came there and saw the occurrence. The injured Gautam Mull was removed to Dariapur State Dispensary for treatment where fardbeyan was recorded and a case under Sections 147, 148, 149, 323 and 307 of the Indian Penal Code was instituted against the accused-persons. Thereafter the informant raised alarm and the witnesses came there and saw the occurrence. The injured Gautam Mull was removed to Dariapur State Dispensary for treatment where fardbeyan was recorded and a case under Sections 147, 148, 149, 323 and 307 of the Indian Penal Code was instituted against the accused-persons. The deceased Gautam Mull was referred to PMCH Patna for better treatment where he succumbed to his injuries. On 12.5.83. On the basis of fardbeyan FIR was drawn up and after completion of the investigation charge-sheet was submitted against the accused persons. Accordingly cognizance was taken and the trial concluded with the result as indicated above. 3. The appellants pleaded not guilty and have stated about false implication in this case. 4. The prosecution in support of its case examined altogether 13 witnesses. PW 1 is Parichhan Mull, PW 2 is Basudeo Mull, PW 3 is Biraji Mull, PW 4 is Ganesh Mull, PW 5 is Sudama Singh, PW 6 is Ram Pravesh Sharma, PW 7 is the Doctor Anwar Alam who has examined Gautam Mull (deceased), PW 8 is Dhruv Kumar who is a formal witness and he has proved FIR PW 9 is the informant herself, Ram Sanehi Kuer. PW 10 is Ram Chandra Prasad who has investigated the case and PW 11 is Dr. Upendra Prasad Verma who held autopsy on the dead body of the deceased Gautam Mull, PW 12, Lachhuman Prasad Tandan who was then posted as Additional S.P. had supervised the case, PW 13 is Kameshwar Mull who has proved the inquest report (Ext. 9) of the deceased Gautam Mull. 5. That the defence has also examined four witnessed DW 1 is Hari Pandey, DW 2 is Dr. Sidheshwar Prasad, DW 3 is Dr. Pulak Kumar Matsuddi and DW 4 is Sugriv Prasad. 6. PW 9, Ram Sanehi Devi, informant, has fully supported the prosecution case. According to her on 11.5.83 her son Gautam Mull was enquirying about cutting of the bamboo and during course of the enquiry the accused persons came and started abusing her. The has further stated that she made protest and on her protest the appellant Fekan Mull asked the other appellant to assault the informant and to kill her son, Gautam Mull (deceased). The has further stated that she made protest and on her protest the appellant Fekan Mull asked the other appellant to assault the informant and to kill her son, Gautam Mull (deceased). According to her, on the order of the appellant Fekan Mull, appellant, Shankar Mull assaulted his son on his head and other appellants also assaulted with brick bat and danda of Sahjan. After receiving injury her son fell down and became unconscious. She was also assaulted by Pukar Mull, when she tried to save her son, Gautam Mull, causing injury on her left hand. Her son was taken to Dariapur State Dispensary from where he was referred to PMCH Patna. According to her, her statement was recorded by Dariapur Police. 7. PW 7 is Dr. Anwar Alam who examined the injured Gautam Mull on 11.5.83, found the following injuries on the person of the deceased. 1. One lacerated wound 3" x 1/4" x 1/4" over left partial region of scalp. 2. Swelling of oucipital region of scalp and swelling nape of neck. 3. One Bruise 4" x 1" over back of left side of chest intra scapular region. 4. Swelling 3" x 3" on right infra scapular region. 5. Swelling 3" x 3" front right side of chest. On the same day he also examined the informant PW 9 Ram Sanehi Devi and found the injuries on her persons one lacerated wound 1" x 1/4" x 1/4" hand in between ring and middle finger. The nature of injury was simple and was caused by brick bats. According to the Doctor injuries of the deceased, Gautam Mull, was dangerous to life and was grievous in nature. PW 11 Dr. Upendra Prasad who held postmortem examination on the deceased, has stated that on 13.5.83 he was holding the post of Civil Surgeon in PMCH and he conducted the post mortem examination on the dead body of Gautam Mull and he found the following the antimortem injury on the person of the deceased, Gautam Mull: 1. Stichad wound 2" length at right partial region just right to the Sagittal Satura at vertex. 2. Bruised abrasion 3" x 1/4" at back of upper portion of left chest. Now left chest was swallen with blood clots underwith. 3. Abrasion 1-1/2" x 1/2" at the middle of right chest in the posterior maxillary line swelling of right chest entire. 4. 2. Bruised abrasion 3" x 1/4" at back of upper portion of left chest. Now left chest was swallen with blood clots underwith. 3. Abrasion 1-1/2" x 1/2" at the middle of right chest in the posterior maxillary line swelling of right chest entire. 4. Blood clot 4" x 3" at the vertese in the Scar. 5. The coronal suture of left side was separated. 6. Extra Dural blood clot 4" x 3" x 1/2" at left temporo parito frontal region. 7. Brain was conjusted, Time since death within 24 hours approx. According to him the death was due to extra cardinal hemorrhage. Nature of weapon was hard and blunt substance. Injury No. 1 may be possible by hard and blunt substance, injury No. 2 may be caused by Kuthera of bullock cart, injury No. 2 may be possible by Kutehera like weapon and other injury was not separate injury. Injury No. 5 was result and consequence swelling of the chest along with the formation of blood clots in the chest region could as well as possible by fist blows and bricks. Injuries were sufficient in the ordinary course of nature to have caused. PWs 1, 2, 3 and 5 all have supported the manner of assault and version of the informant. They all have supported that the appellant Shankar assaulted the deceased, Gautam Mull on his head with Kuthera and assaulted him with brickbats with danda of Sahjan. According to them the appellants Maheshwar Mull and Pukar Mull assaulted with bricks, which caused injury on her hand. PW 4 is a hearsay witness. He came to the place of occurrence after the occurrence took place. PW 10 is the I.O. of this case. He has also supported the case of the prosecution. According to him he visited the place of occurrence. The place of occurrence was Bathan. According to him he recorded the fardbeyan of the informant an FIR was drawn up. 8 The learned counsel for the appellant submitted that the occurrence as described by the prosecution took place when the informant asked the appellants about cutting of bamboo by them from the bamboo clump. It has been further submitted that on enquiry the informant was abused by the appellants and eventually it resulted in occurrence as alleged and therefore the appellants did not form an unlawful assembly with common object of committing offence so alleged. It has been further submitted that on enquiry the informant was abused by the appellants and eventually it resulted in occurrence as alleged and therefore the appellants did not form an unlawful assembly with common object of committing offence so alleged. As such the court below wrongly convicted the appellants even for the offence committed by any one of the appellants under Section 149 of the IPC. In this regard he had relied upon a decision Shanti V/s. State of Hariyana, 1991 (1) SCC 371 : 1981 East Cr C 1. He also relied upon a decision in AIR 1977 SC 1998 . 9. But the facts of both the cases are different from the facts of the present case. As such it is not helpful to the appellants. However, in both the cases so mentioned above it has been held by the Apex Court that a person is individually responsible for the injury caused by him. 10. From the deposition of the informant PW 9 it is clear that the appellants had not come in a group to assault the informant and her son. Gautam Mull (deceased), rather Gautam Mull and appellant Yogendra Mull arrived near her (informant) Bathan and they were having altercation between them. During altercation the appellant Fekan Mull instigated Shankar Mull, Pukar Mull, Umesh Mull to kill the informants son, Gautam Mull on which Yogendra Mull and Pukar Mull cought hold of the deceased, Gautam Mull and appellant Shankar Mull, gave Kuthera blow on the head of the deceased. Appellant Pukar Mull assaulted the deceased with branch of Sahjan and also with brickbats. The informant was also assaulted by appellant Pukar Mull with lathi and brick bats which hit her in her palm when she went to save her son. In this case two doctors, PWs 7 and 11 examined the deceased Gautam Mull. PW 7 was posted at Dariyapur State Dispensary and found injuries on his person as stated above. PW 11 held post mortem examination on the deceased at PMCH and he also found antimortem injury on the person of the deceased. As such the story of the prosecution is corroborated by the two doctors, PWs 7 and 11. PW 7 was posted at Dariyapur State Dispensary and found injuries on his person as stated above. PW 11 held post mortem examination on the deceased at PMCH and he also found antimortem injury on the person of the deceased. As such the story of the prosecution is corroborated by the two doctors, PWs 7 and 11. That apart from the injuries on the head of the person of the deceased he had other injuries also on his person which goes to show that he was also assaulted and sustained injury by brickbats and branch of Sahjan by the appellants. 11. PWs 1, 2, 3, 5 and 6 have supported the case of the prosecution. They have also proved the prosecution case that all the appellants assaulted the deceased Gautam Mull which resulted in his death. As submitted by the learned counsel for the appellants, it is true that the appellants did not form an unlawful assembly and did not come with intention to kill the deceased. It all started with altercation between the deceased and the appellants and eventually scuffle took place and the appellant Shankar Mull gave fatal blow on the head of the deceased. As such the appellants cannto be said to be the members of unlawfull assembly and they are jointly not liable for the offence committed by any one of the members of the group, rather they are individually responsible for the offence committed by them. The Court below found that the appellant Shankar Mull guilty for the offence punishable under Section 304/II of the IPC. Since on the instigation of the appellant Fekan Mull he gave fatal assault on the head of the deceased Gautam Mull, as such Fekan Mull was liable for the offence punishable under Section 304/114 of the IPC and all other appellants have also assaulted the deceased as well as the appellant Pukar Mull assaulted the mother of the deceased, the informant, when she went to save her son Gautam. The appellants, Pukar Mull, Yogendra Mull and Umesh are found guilty under Section 323 of the IPC and also Section 147 of the IPC. 12. As discussed above they are not liable jointly for the offence committed by any of the members of the group. Thus, the sentence under Section 149 of the IPC awarded by the Court below to all the appellants is set aside. 12. As discussed above they are not liable jointly for the offence committed by any of the members of the group. Thus, the sentence under Section 149 of the IPC awarded by the Court below to all the appellants is set aside. The appellant Shankar Mull has been rightly convicted for the offence punishable under Section 304/II of the IPC and appellant Fekan Mull is also convicted under Section 304/II of the IPC and the appellants, namely, Umesh Mull, Yogendra Mull, Pukar Mull are convicted under Sections 323 and 147 of the IPC. 13. Coming to the question of sentence the learned counsel for the appellants submitted that the occurrence took place in the year 1983 and the appellant Fekan Mull is aged about 70 years. It has also been stated that two of the appellants were also assaulted during scuffle between the parties. It is further submitted that the appellants had no intention to kill the deceased and it was not premeditated, whatever happened it happened in spur of the movement. The appellants have no criminal history and they have remained in jail for sometime, therefore, it requires consideration on the point of sentence. 14. Having regard to the submissions raised on behalf of the counsel for the appellants and in the above facts and circumstances I am of the view that it would meet the ends of justice if the appellant Shankar Mull is sentenced to undergo R.I. for five years. Considering the old age of the appellant Fakan Mull his sentence is reduced to the period already undergone in jail with a fine of Rs. 5,000/-. The sentences of appellants, Umesh, Pukar and Yogendra, are reduced to the period already undergone in jail with a fine of Rs. 1000/- each to be deposited by these appellants within three months from the date of receipt/ production of a copy of this Judgment in default the appellants Fekan Mull shall undergo R.I. for two years and other appellants, Umesh, Yogendra and Pukar shall undergo R.I. for one year. The amount of fine if and when realised from these appellants shall be given to the wife of the deceased, Gautam Mull by way of compensation. 15. With the aforesaid modification in the conviction and sentence this appeal is dismissed.