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2001 DIGILAW 487 (PAT)

Parmeshwar Mahto v. State Of Bihar

2001-06-26

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad and A.K.Sinha JJ. 1. This appeal has been directed against the order of conviction and sentence dated 19th August 1994, passed by 2nd Additional Sessions Judge, Patna in Sessions Trial No. 853 of 1988, whereby and whereunder, the sole appellant Parmeshwar Mahto was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. 2. The prosecution case lies in narrow compass and can be recapitulated. On 27.4.1988 at 11.30 a.m. the informant and her husband Madhu Mahto (deceased) were sleeping in the room of their house and were gossiping when the appellant knocked the door which was locked from inside and after breaking the door entered in the room and wanted to kill the deceased who ran out of the room to save himself but with the aid of the leg the appellant got him dropped on the ground and made indiscriminate assault upon the deceased with Kakut as a result of which the deceased succumbed to the injuries. The informant, her mother-in- law and the witnesses tried their best to persuade the appellant for not killing the deceased but all the request made by them went in vain. The motive behind the occurrence is that the mother-in-law of the informant was living with the deceased who was married with the informant in the same year and the appellant was at unhappy with the marriage and was apprehensive that the lands which were in the name of the mother of the deceased may be taken by the deceased. The fardbeyan of the informant was recorded on the same day at about 5.00 p.m. on the basis of which the FIR (Ext. 4) was lodged at 9.00 p.m. against the appellant under Section 302 of the Indian Penal Code. The police submitted charge-sheet against the appellant under Section 302 of the IPC and after commitment the case came up for trial before the learned Additional Sessions Judge who framed charge against the appelfant under Section 302 of the IPC which was denied by the appellant. The defence is of innocence simpliciter. 3. In order to prove the charge the prosecution examined as many as seven witnesses out of whom PW 4 Rohan Mahto is a witness on the inquest report and has proved his signature (Ext. 1) on the inquest report. The defence is of innocence simpliciter. 3. In order to prove the charge the prosecution examined as many as seven witnesses out of whom PW 4 Rohan Mahto is a witness on the inquest report and has proved his signature (Ext. 1) on the inquest report. He is also a witness on the seizure list which was prepared in proof of the seizure of the blood stained earth from the PO and he has testified his signature Ext 1/1 on the seizure list. Although this witness has not stated a word on the point of the alleged occurrence but in cross-examination he admitted that the appellant is his brother-in-law and his father- in-law had made partition of the lands between his two sons and after that the appellant started living separately. He further stated that the deceased sold his land and was living with his mother and the first wife of the deceased deserted him. Thereafter, he married second time. After the murder of the deceased his mother started living with this witness and she gave her lands to her grand son i.e. the son of this witness. 4. PW 3 Chandeshwar Paswan is the choukidar of the village who is witness on the seizure list and the inquest report. 5. PW 4 Dhaneshwar Devi is a hostile witness who supported the occurrence but deposed that she had not seen the assailant. 6. PW 5 Dr. Chandeshwar Prasad had conducted autopsy on the dead-body of the deceased on 28.4.1988 and found as many as 10 ante-mortem injuries on the person of the deceased out of which 7 were incised in nature and the remaining three were abrasion. In his opinion the death was caused due to shock and haemorrhage as a result of injuries Nos. 1, 2, 3, 4, 6, 8 and 10 which were all incised injuries and were caused by sharp cutting weapon. The other three injuries were caused by hard and blunt substance, PW 5 has proved the post-mortem report (Ext. 2). There is nothing significant in the cross-examination of PW 5. 7. PW 7 Chandra Mohan Prasad is a witness of formal nature who has proved the formal FIR (Ext. 4). 8. The main witnesses of this case are PW 1 Jira Devi who is mother of the deceased and eye-witness to the alleged occurrence and PW . 6 Chamaliya Devi, the informant herself. 7. PW 7 Chandra Mohan Prasad is a witness of formal nature who has proved the formal FIR (Ext. 4). 8. The main witnesses of this case are PW 1 Jira Devi who is mother of the deceased and eye-witness to the alleged occurrence and PW . 6 Chamaliya Devi, the informant herself. PW 6 has categorically supported the prosecution case by deposing that while she was inside the room along with her husband and the door was closed from inside, Parmeshwar Mahto knocked the door and entered into the room by breaking the door. He tried to assault her but when she raised alarm the appellant dragged her husband and when her husband wanted to escape, the appellant made him to fall sat over his chest and dealt indiscriminate blows with Kukut and fled away. She deposed that her husband succumbed to his injuries. In cross-examination she has stated that she was married with the deceased before the occurrence and the appellant had not put any obstruction in the marriage. She has also stated that the appellant used to live in separate house and she has stated about the place of occurrence that there is part land in front of her house and her house is situated after a lane and the occurrence took place in front of his house. She has also stated that the place where her husband fell down was not visible from her house but she had come out of the house and raised alarm on which 100 of persons assembled and saw the occurrence. She has also stated that her husband was lying in pool of blood and the police came in the evening and saw her husband in that condition and at that time she had became unconscious. 9. PW 1 Jira Devi is non-else but the mother of the appellant who has categorically stated that the appellant dragged the deceased near the lane and made him to fall and thereafter he sat on the chest and assault him with Kukut and killed him. She has also stated about the second marriage of the informant with the deceased and has deposed that the appellant wanted to grab the land of the deceased which he was not ready to part with. She has also stated about the second marriage of the informant with the deceased and has deposed that the appellant wanted to grab the land of the deceased which he was not ready to part with. In cross-examination she has stated that her house consisted of two rooms and there was a verendha in front of the room and in front of the verendha there was open space and a wall. She also stated that there were lanes on the western and southern side of the house and there was a drain adjacent to the lane. She has also given the description of the houses of other persons situated by the side of her house. PW 1 has further stated that the appellant was living separately and used to do the work of a Tailor and the deceased had sold the land which was allotted to his share. So, she was keeping the deceased with her. PW 1 has stated that after taking the meal she was washing her hands when she heard the alarm on which the villagers had assembled and her testimony on the point of assault has virtually remained unchallenged. The testimony of PW I who is the eye-witness on the point of the alleged occurrence deserves to be relied upon because she is none else but the mother of the appellant and it is hard to believe that she will depose against her own son. The evidence of the informant (PW 6) also inspire confidence to believe because the entire occurrence took place in her presence and nothing has been elicited in the evidence of PW 1 and PW 6 which may render their version unworthy of placing credence to. We find that the evidence of both PW 1 and PW 6 are quite consistent on all material points. 10. The learned defence counsel, however, submitted that the IO has not been examined and due to his non-examination the place of occurrence has not been proved and the defence was seriously prejudiced. But, the submission is bereft of any merit, inasmuch as the attention of PW 1 and PW 6 was not drawn regarding the statements which they made before the police. So far as the place of occurrence is concerned, PW 1 and PW 6 have categorically stated about the place of occurrence in their cross-examination. But, the submission is bereft of any merit, inasmuch as the attention of PW 1 and PW 6 was not drawn regarding the statements which they made before the police. So far as the place of occurrence is concerned, PW 1 and PW 6 have categorically stated about the place of occurrence in their cross-examination. As such, it cannot be said that the place of occurrence has not been established from the evidence of the witnesses. The next submission of the learned defence counsel was that none of the independent witnesses have supported the alleged occurrence although it has come in the evidence of PW 1 and PW 6 that 100 of persons had assembled on alarm raised by the informant. Even this submission also bears no force in it in view of the unchallenged testimonies of PW 6 and PW 1 who is the mother of the appellant and she has fully supported the prosecution version as regards the assault by the appellant upon the deceased. Another important aspect in this case is that the occurrence took place at about 11.00 a.m. and the fardbeyan of the informant was recorded at 5.00 p.m. on the same day and it is apparent that the police station is situated at a distance of 10 k.m. from the place of occurrence. So, it appears that the FIR was lodged without any delay and this circumstance rules out the possibility of any embellishment or concoction. 11. Regard being had to all the facts and circumstances of the case, we are of considered view that the prosecution had proved the charge against the appellant beyond all reasonable doubts and the learned trial court rightly convicted the appellant for the offence committed under Section 302 of the Indian Penal Code. As such the order of conviction and sentence as awarded by the trial Court is upheld. 12. In the result, therefore, we find no merit in this appeal which is dismissed.