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2002 DIGILAW 462 (JHR)

Nawmi Mahato v. State of Bihar (Now Jharkhand)

2002-04-05

LAKSHMAN URAON, VIKRAMADITYA PRASAD

body2002
JUDGMENT : Lakshman Uraon, J.-This appeal has been directed against the judgment and order of conviction and sentence dated 9.1.1996 and 11.1.1996 respectively, passed by learned Additional Judicial Commissioner, Khunti, Ranchi, in Sessions Trial No. 638 of 1991, convicting the sole appellant Nawmi Mahato under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life. 2. The prosecution case, as per the statement of the informant Ajgut Mahto (P.W. 2), is that he is one of the four brothers, who are living jointly. The third brother is appellant Nawmi Mahato, fourth brother is Surendra Mahato alias Surendra Nath Mahto (P.W. 1) and the eldest brother is Manbodh Mahto (P.W. 4). On 17.11.1989 at about 8.00 p.m. appellant Nawmi Mahto was at home along with his father Ram' Hari Mahto (deceased). The informant and his elder brothers had gone to market and Surendra Mahto (P.W. 1) had gone to the field for irrigating the same, while his father (Ram Hari Mahto) and appellant '(Nawmi Mahto) were there at the home. When Surendra Mahto (P.W. 1), after irrigating the field, returned back home, he saw appellant Nawmi quarrelling with his father. There was scuffle. In the meantime, appellant gave one blow with the blunt portion of Tangi (axe) on the head of his father Ram Hari Mahto. On being injured, Ram Hari Mahto fell down. P.W. 1 (Surendra Mahto) when tried to intervene, he was also threatened and hence he fled away. He saw that his father had died. He raised Hulla. The villagers assembled there and by that time the appellant had fled away from the home. He was not traced out on search in the village. The appellant used to pick up quarrel with his father only due to money matters. When the informant Ajgut Mahto returned home from the market, then he was informed about the alleged assault by the appellant, resulting in the death of their father. Due to late in the night, in the next morning he went to the police station and informed the police. 3. After investigation charge-sheet was submitted against the sole appellant under Section 302 of the Indian Penal Code to which he pleaded himself not guilty. In course of his examination also, there is denial of any assault on his part, given by him to his father Ram Hari Mahto. 4. 3. After investigation charge-sheet was submitted against the sole appellant under Section 302 of the Indian Penal Code to which he pleaded himself not guilty. In course of his examination also, there is denial of any assault on his part, given by him to his father Ram Hari Mahto. 4. After considering the evidence and witnesses, who are eleven in number, and the documentary evidence, First Information Report Post-mortem report, inquest report etc. the learned Additional Judicial Commissioner, Khunti, Ranchi, convicted the sole appellant under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. The point for consideration is as to whether the conviction and sentence, passed by the learned court below, can be sustained. 5. As per the First Information report (Ext. 3) at the time of the alleged occurrence in between 3.00 p.m. to 4.00 p.m., at village-Domra in the house of the appellant, only his father Ram Hari Mahto was present. The other two brothers had gone to market and one brother P.W. 1 (Surendra Nath Mahto) had gone to irrigate his field. After irrigating the field, he returned home and saw this appellant quarrelling with his father Ram Hari Mahto. There was scuffle in between them regarding money matters. P.W. 1 (Surendra Mahto) saw that his father was given one blow with the blunt portion of Tangi on the head. P.W. 1, having seen the same, tried to intervene but he was also threatened, hence he fled away. He saw that his father Ram Hari Mahto fell down. P.W. 1 raised Hulla. The villagers assembled there by that time. Nawmi Mahto (appellant) fled away and on search, he was not found in the village. In the evening when the informant Ajgut Mahto (P.W. 2) returned home, then he was informed about the alleged assault, resulting in death of his father, by Surendra Nath Mahto (PW 1) that when he came home after irrigating field at about 4 to 5 p.m. then he saw appellant Nawmi Mahto quarrelling with their father Ram Hari Mahto. When the informant Ajgut Mahto returned home from market then he was narrated about the occurrence by PW 1 in detail. Their father had fallen in the house itself at the inner door. Thus, the only eye witness is PW 1 Surendra Nath Mahto. When the informant Ajgut Mahto returned home from market then he was narrated about the occurrence by PW 1 in detail. Their father had fallen in the house itself at the inner door. Thus, the only eye witness is PW 1 Surendra Nath Mahto. He informed all the villagers, including his brothers, namely, informant (PW 2) and Manbodh Mahto (PW 4). The villager PW 3 (Paltan Mahto) on Hulla when came to know that Nawmi Mahto (appellant) has murdered his father, went there. All the villagers were talking that Ram Hari Mahto was murdered by his son Nawmi Mahto. He went there and saw injury on the head of Ram Hari Mahto (deceased). P.W. 4 (Man Bodh Mahto), another brother of the appellant, also heard from his younger brother Surendra Nath Mahto (P.W. 1) that Nawmi (appellant) had given a blow through the blunt portion of Tangi on the head of his father. Nawmi Mahto after assaulting, fled away, which was narrated by P.W. 1 to all the villagers. PW 5 (Sahodar Mahto) is also a hearsay witness. He was also informed by Surendra Mahto (P.W. 1) that this appellant Nawmi Mahto had given one Tangi blow from the blunt portion on the head of his father Ram Hari Mahto, who fell down and died. P.W. 7 (Padhanu Ram Mahto) was informed by the informant Ajgut Mahto that Ram Hari was murdered by the appellant Nawmi Mahato. He had gone along with Ajgut Mahto to inform the police. On the statement of Ajgut Mahto, he also signed (Ext. 1/2). PW 8 (Upendra Nath Mahto), a villager and independent witness, is also a hearsay witness. He had also gone to the police along with the informant (PW 2- Ajgut Mahto) and P.W. 7 (Padhanu Ram Mahto). He was also informed that Nawmi Mahto had assaulted with blunt portion of Tangi to him father Ram Hari Mahto on the back portion of head, who fell down and died in the house itself. P.W. 2 (informant) went in the next morning along with the witnesses to the police Station and narrated the story, as informed by his younger brother Surendra Nath Mahto (PW 1). His statement was recorded on which he signed (Ext. 1). PW 11 (Nageshwar Pd. Singh) on 18.11.1989 recorded the statement of Ajgut Mahto (PW 2), made over the same to him and he also signed (Ext. 3). His statement was recorded on which he signed (Ext. 1). PW 11 (Nageshwar Pd. Singh) on 18.11.1989 recorded the statement of Ajgut Mahto (PW 2), made over the same to him and he also signed (Ext. 3). In course of investigation, he went to the village-Domra Tola Pelkadih, the house of the deceased Ram Hari Mahto itself. He found the dead body of Ram Hari Mahto in the inner door. He prepared inquest report in his pen and signature• in carbon process (Ext. 4). He also seized the blood stained soil in presence of witnesses and prepared seizure list but the seizure list was not available in the case diary. However, he has mentioned it in the case diary at paragraph no. 8. P.W. 10 (Dr. Saroj Kumar) has conducted the post-mortem examination on the dead body of Ram Hari Mahto on 19.11.89 and found three abrasions-4 x 1 cm. on left arm front middle, 1 x 1/2 cm. on right eyebrow and 1/4 x 1/2 cm. on right leg front middle. The doctor has also found two lacerated wounds: (i) 6 x 3 cm. x bone deep on right side of forehead and surrounded by abrasion 6 x 1/2 x 4 cm. and (ii) 3 x 11/2 cm x scalp deep on the occipital region of the head. The doctor found diffused contusion of frontal and occipital scalp. There was depressed fracture of right frontal bone measuring 41/2 x 4 cm. and crack fracture of right frontal bone and right temporal bone starting from the depressed fracture. Blood clot was found over both sides of brain. The head injuries were sufficient to cause death in ordinary course of nature. The post-mortem report was prepared by the doctor in the pen and signature (Ext. 2). The doctor opined that the death occurred in between 12 to 36 hours from the time of post-mortem examination. 6. In the present case, as I have considered above the evidence of prosecution witnesses, I have found that the only witnesses is Surendra Nath Mahto (PW. 1). He is none else but the son of the deceased. He has deposed against his brother Nawmi Mahato, alleging that he gave one Tangi blow from the blunt portion of the same on the head of his father, resulting in his fall and death. 1). He is none else but the son of the deceased. He has deposed against his brother Nawmi Mahato, alleging that he gave one Tangi blow from the blunt portion of the same on the head of his father, resulting in his fall and death. The only eye witness Surendra 'Mahto saw that his father has fallen down and died. He tried to intervene but he was also threatened and hence he fled away and informed the villagers. When the villagers came, by that time the appellant had managed to escape and could not be traced out. The alleged occurrence took place in between 3 to 4 PM. The informant and his another brother had gone to market. They returned at about 8.00 p.m. They were informed by Surendra Mahto. The villagers and the informant, as it was night on 17.11.1989 and the Police Station is situated at a distance of 24 kms. away, went to the Police Station in the next morning and informed the police. All the villagers, the witnesses including the informant saw the dead body who were informed that this appellant is the sole assailant, who gave Tangi blow with its blunt portion on the head of Ram Hari Mahto. The doctor found two lacerated wounds, one on the right side of the forehead, surrounded by abrasions-6 x 1/2 x 4 cm., and the second was 3 x 11/2 cm. x scalp deep on the occipital region on the head. The doctor's evidence also corroborates that the appellant assaulted with the blunt portion of Tangi on the head of his father. The only eye witness Surendra Mahto (P.W. 1) saw that this appellant assaulted his father with blunt portion of Tangi on the head. HG saw his father falling down and tried to save him but he was also threatened and, therefore, he also fled away. Thus, there is possibility that while assault was given with blunt potion of Tangi on the head, Ram Hari fell down and when he fell down, he sustained another head injury, which is laceration. In the present case, I find that the informant and other witnesses were informed by PW. 1 Surendra Nath Mahto. The other witnesses have also admitted that they were informed about the occurrence that this appellant is the person who assaulted Ram Hari Mahto with blunt portion of Tangi on his head. In the present case, I find that the informant and other witnesses were informed by PW. 1 Surendra Nath Mahto. The other witnesses have also admitted that they were informed about the occurrence that this appellant is the person who assaulted Ram Hari Mahto with blunt portion of Tangi on his head. The doctor also found head injury, caused by hard and blunt substance. He specifically found depressed lacerated wounds on the head, which corroborate the ocular evidence regarding the manner of assault and the injury sustained by the deceased. 7. Considering the above evidence, available on the record, I find that the prosecution has proved its case against the sole appellant beyond all shadow of reasonable doubts. 8. Learned counsel for the appellant in course of his argument has submitted that there was no prior enmity of this appellant with his father. The case of assault is said to be the fact, regarding demand of money. At the time of the alleged occurrence, all the four brothers and their father were living jointly. There was scuffle (Uttha Patak) between the deceased Ram Hari Mahto and appellant Nawmi Mahto i.e. father and son. When this appellant saw Tangi, kept in a corner, he picked up the same and gave blow with its blunt portion on the head of his father. It was submitted that the alleged occurrence took place in a spur of moment, without any intention to cause murder of Ram Hari Mahto. On this ground it was submitted that the case in stead of Section 302 of the Indian Penal Code, attracts Section 304 Part-II of the Indian Penal Code and has relied upon a decision, reported in 1993 Eastn. Cri. Cases 82 (SC). 9. In the present case I have considered above that the assault with blunt portion of Tangi given by this appellant once was seen by the only eye witness Surendra Mahto (PW. 11) and on being given one blow with the blunt portion of Tangi, Ram Hari Mahto fell down and died. Thereafter, when Surendra Mahto (PW. 1) was also threatened, he left the home and hence he did not see any further assault, given by this sole appellant. I have already mentioned above that at the time of alleged occurrence all the four brothers and father were living jointly and this appellant has got his Sasural in the village itself. Thereafter, when Surendra Mahto (PW. 1) was also threatened, he left the home and hence he did not see any further assault, given by this sole appellant. I have already mentioned above that at the time of alleged occurrence all the four brothers and father were living jointly and this appellant has got his Sasural in the village itself. He was living in his Sasural but occasionally he used to pick up quarrel with his father Ram Hari Mahto regarding money. Thus the intention was not to cause murder of his father rather the cause of scuffle (Utha Patak) was due to non fulfilment of his demand of money by his father. There is evidence that only one blow, that also with the blunt portion of Tangi, was given on the head, which is vital part of the body. When it is injured, it is likely to cause death of the injured. Had it been the intention to cause murder, then there was no one to intervene this sole appellant to assault on the vital part with the sharp edged portion of Tangi. But it not so happened in this case. 10. In view of the above considered facts, I come to the conclusion that it is a case to be dealt with under Section 304 Part-II of the Indian Penal Code. 11. In the result, this Criminal Appeal is dismissed but the sentence as awarded under Section 302 of the Indian Penal Code is converted into a sentence under Section 304 Part-II of the Indian Penal Code. Accordingly, the appellant who is in custody for more than 12 years, is sentenced to undergo the rigorous imprisonment for the period, he has already undergone. With the above modification in the order of sentence, this Criminal Appeal is hereby dismissed.