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2003 DIGILAW 1022 (PAT)

Suresh Singh v. State Of Bihar

2003-09-17

INDU PRABHA SINGH

body2003
Judgment INDU PRABHA SINGH, J. 1. All the appellants have been convicted under Section 304, Part II and Section 34 of the Indian Penal Code (in short the Code) and were sentenced to undergo rigorous imprisonment for seven years each. 2. The prosecution case, in short, is that the informant Baldeo Sao gave a written report on 17.7.1987 stating therein that on 16.7.1987 at 6.00 p.m. when he was returning after ploughing the field and reached near the flour mill of Somar Mhato, he saw that there was some altercation going on between Somar Sao and the appellants. According to him, Baldeo Sao went to his house and thereafter he went to the shop of Bugi Sao and there he purchased seeds of paddy. While he was returning to his home he heard hulla and on hulla he rushed towards the mill of Somar Mahto. As soon as he reached there he was assaulted by appellant Baliram Singh by means of lathi on shoulder and hand and got bleeding injuries. He fell down and his paddy seeds also fell down on the ground. Thereafter, appellants Baliram Singh, Uday Singh and Birendra Singh also assaulted Basdeo by lathi and fist and slaps. The appellants also assaulted Tula Mahto and Somar Mahto with lathi. Somar Mahto received more injuries and was unable to move and as such he was taken to his house in injured condition and the other injured persons went tg hospital for their treatment. On the basis of the written report of the informant, the case was registered and formal FIR was drawn up under Sections 323 and 341 of the Indian Penal Code. Thereafter, Somar Mahto died and as such charge was added also under Section 304 of the Code against the accused appellants. After completion of investigation, charge-sheet was submitted and on the basis of which cognizance was taken. The case was committed to the Court of Session. Ultimately, the trial concluded in the manner as indicated above. The appellants pleaded not guilty. 3. The prosecution in support of its case examined altogether ten witnesses. PW 1 is Basudeo Mahto, PW 2 is Bhola Prasad he has been tendered. PW 3 is Braj- deo Prasad. PW 4 is Tula Mahto. PW 5 is Surendra Prasad. PW 6 is Prabhu Mahto. PW 7 is Baldeo Sao, he is the informant. 3. The prosecution in support of its case examined altogether ten witnesses. PW 1 is Basudeo Mahto, PW 2 is Bhola Prasad he has been tendered. PW 3 is Braj- deo Prasad. PW 4 is Tula Mahto. PW 5 is Surendra Prasad. PW 6 is Prabhu Mahto. PW 7 is Baldeo Sao, he is the informant. PW 8 is Mahesh Ram, who is the IO of this case. PW 9 is Dr. Mithilesh Kumar and PW 10 is Krishna Prasad, who has proved the written report of the informant, Baldeo Sao. PW 1 Basudeo Mahto has stated that at the time of occurrence, he was his house. On hullah he came near the place of occurrence and saw there was altercation between the deceased Somar Mahto and accused persons Suresh Singh, Bali Singh @ Bali Ram Singh, Udai Singh and Birendra Singh. The appellant Suresh Singh assaulted the deceased Somar Mahto with lathi having khanti in it and the other accused persons also assaulted Somar Mahto with first and slaps. Accused Suresh Singh and Baliram Singh also assaulted PW 1 Basudeo Mahto when he tried to save Somar Mahto. He has further stated that PW 4 Tula Mhato was also assaulted by appellants Suresh Singh and Baliram Singh. The deceased Somar Mahto received so many injuries and he died after three days of occurrence in Gaya Hospital. In his corss-examination, he has stated that he is not the original inhabitant of Baghlati. He has also stated that he did not go to the hospital to see the injured. He has also stated that the deceased Somar Mahto was unable to move. Thereafter, on the following day he was brought to the police station and then to the Mohanpur Hospital and from hospital Somar was referred to the Medical Collage, Gaya. According to him, there was no previous enmity. 4. PW 3 Brajdeo Prasad, son of the deceased Somar Mahto has also fully supported the case of the prosecution. According to him, at the time of occurrence, he was at his mill which was by the side of place of occurrence. He has stated that the place of occurrence is near Dhaja of Hunuman Jee. According to him, accused Suresh Singh Baliram Singh, Uday Singh and Birendra Singh assaulted his father Somar Mahto as a result of which he died. He has stated that the place of occurrence is near Dhaja of Hunuman Jee. According to him, accused Suresh Singh Baliram Singh, Uday Singh and Birendra Singh assaulted his father Somar Mahto as a result of which he died. According to him, accused Suresh Singh was having khanti in his hand while other accused persons were having lathi They assaulted his father Somar Mahto (deceased) with lathi and khanti as a result of which he died in hospital. He has further stated that his father was also assaulted by the appellant by means of foot on his abdomen. According to him, witnesses Prabhu Mahto. Tula Mahto and Basdeo Mahto when came to save his father, were also assaulted by accused persons. He has further stated that his father was taken to the Mohanpur hospital from where he was referred to Medical College, Gaya. His father died in Gaya Hospital. According to him, the distance between the house of the accused and the P.O. is about 400 yards. He has also denied to have any previous enmity with the accused persons. He has further stated that his father remained in village and other witnesses who were assaulted went to Mohanpur Hospital and he did not sustain injuries. He has stated that it was not dark at the time of occurrence. PW 4 Tula Mahto is also one of the injured and he has also supported the case of the prosecution. According to him, at the time of occurrence, he was working in the field and on hvilah he came near the mill of Somar Mahto and saw Somar Mahto fallen on the ground. According to him, all the accused persons Suresh, Baliram, Uday and Birendra were assaulting the deceased Somar Mahto and when he objected they also assaulted him. In his cross-examination, he has stated that the assault was not started in his presence and it was dark at the time of occurrence. 5. PW 5 Surendra Prasad, who is another son of Somar Mahto has also fully supported the prosecution case. According to him, at the time of occurrence, he was at the Mill, which is by the side of the P.O. According to him, accused Suresh, Bali, Udai and Birendra came and ransaked the mill and started saying that there should be no charge for grinding their grains. According to him, at the time of occurrence, he was at the Mill, which is by the side of the P.O. According to him, accused Suresh, Bali, Udai and Birendra came and ransaked the mill and started saying that there should be no charge for grinding their grains. In the meantime, accused Suresh Singh assaulted his father with lathi and other accused persons also started assaulting his father by fist and slaps pushing him on the ground. According to him, accused persons also assaulted Tula, Prabhu, Basdeo and Baldeo, who had come to rescue his father. He has further stated that the place of occurrence is at the distance of 400 yards from the mill and he could not go to save his father. There was no previous enmity between his father and the appellants. 6. PW 6 is Prabhu Mahto. According to him, the occurrence took place on 16.7.1987 at about 6 p.m. On hullah he came near the P.O. and saw all the four accused persons assaulting the deceased Somar Mahto, who had fell down on the ground and accused persons were mercilessly assaulting him by fist and slaps and foot. According to him, when he tried to save him, he was also assaulted by the accused persons. According to Prabhu Mahto (PW 6), deceased Somar Mahto was not treated by the doctor as he was unable to move and was not taken to the hospital on that day. 7. PW 7 Baldeo Sao, who is the informant of the case has also supported the case of the prosecution. According to him, when he reached near Mahabir Asthan, he saw the accused persons Suresh, Baliram, Biredra and Uday armed with lathi. Suresh assaulted the deceased Somar Mahto by lathi with khanti Thereafter, all the accused persons assaulted the deceased by lathi, fist and slaps and foot. He has further stated that he did not try to save the deceased and after the occurrence of the same night he went to the police station and Police Officer got his statement recorded but the same was not read over to him and his LTI was obtained on it. He has further stated that the fardbeyan does not bear his signature as he does not know to sign as he is illiterate man. Somar Mahto was taken to the police station on the next day as he was unable to move. He has further stated that the fardbeyan does not bear his signature as he does not know to sign as he is illiterate man. Somar Mahto was taken to the police station on the next day as he was unable to move. Thereafter he was taken to Mohanpur Hospital and from there to Gaya Hospital. He has also stated that he has not seen blood mark on the ground. Somar Mahto was not treated by any doctor on the day of occurrence. According to him, there was no previous enmity between the deceased and appellants. 8. PW 8 is the IO of the case. According to him, on 16.7.1987 he was posted at Mohanpur P.S. This case was endorsed to him for investigation. He visited the P.O. on 17.7.1987 and first he went to Mohanpur State Dispensary where he recorded the statement of injured Basdeo Mahto and Tula Mahto. Thereafter he visited the P.O., which is the flour mill at the village Baghlati. According to him, assault took place near Dhaja of Hanuman Jee. He did not find any incriminating article at the P.O. Due to heavy rain nothing was visible. He has given full description of the place of occurrence. He has proved formal FIR marked as Exhibit-4. He has also proved inquest report marked as Exhibit-6. 9. PW 9 is the Dr. Mithilesh Kumar, who conducted post mortem examination of deceased Somar Mahto and recorded the following anti-mortem injuries : (1) Abrasion over front of knee joint 1-1/4" x 3/4". (2) Abrasion over vaintrial surface of right wrist joint 1/2" x 1/2". (3) Swelling over upper right portion of the neck 1/2" x 1/2". (4) Abrasion over left hypochondrian region of the abdomen, on dissection abdomen cavity found filled with blood clot. Presence of massive enlargement of lever and spleen. Superior surface of spleen was lacerated. According to him, injuries 1 to 3 were simple in nature caused by hard and blunt substance. Injury No. 4 was grevious in nature caused by hard and blunt substance. In the opinion of the doctor, cause of death was shock and haemorrhage mainly due to injury No. 4, due to rapture of spleen. The post-mortem report has been marked as Exhibit-2. The post-mortem report has been marked as Exhibit-2. In the cross-examination, the doctor has stated that deceased was ailing and sudden death was not possible by enlargement of lever. 10. The post-mortem report has been marked as Exhibit-2. The post-mortem report has been marked as Exhibit-2. In the cross-examination, the doctor has stated that deceased was ailing and sudden death was not possible by enlargement of lever. 10. Learned counsel for the appellants has submitted that no case is made out against the appellants as there was no mens rea behind the assault ultimately resulting in killing of the deceased Somar Mahto. It has been further submitted that the occurrence took place all of a sudden, on a spur of moment, as there was some altercation between the deceased and the appellants. It has been also submitted that all the witnesses are related and there are contradiction in the deposition of the witnesses. He further submitted that the nature of injuries were simple and the appellants assaulted the deceased with fists and slaps which usually could not cause the death of the deceased and there was enmity between the parties. As such the appellants have been falsely implicated in this case. It is not necessary in the criminal case that mens rea should be proved. In the present case, there were as many as six witnesses PWs 1, 3, 4, 5, 6 and 7 who have supported the factum that the appellants assaulted the deceased with lathi, khanti and also with fist, slaps and foot, and due to assault, the deceased Somar Mahto died three days after the occurrence. The doctor, who held the post-mortem examination of the dead body of the deceased found that his spleen was enlarged and its superior surface was lacerated which was due to assault on the body of the deceased. According to him, cause of death was due to shock and haemorrhage mainly due to injury No. 4 due to rapture of spleen. 11. Investigation Officer has also supported the case of the prosecution. IO has prepared the injury report and also has proved the FIR. He has visited the place of occurrence and has got the written report of Baldeo Sao, the informant (PW 7) which was not in writing of PW 10, Krishna Prasad. 11. Investigation Officer has also supported the case of the prosecution. IO has prepared the injury report and also has proved the FIR. He has visited the place of occurrence and has got the written report of Baldeo Sao, the informant (PW 7) which was not in writing of PW 10, Krishna Prasad. Though it has been submitted by the learned counsel for the appellants that there was signature on the written report, whereas the informant has stated that he does not know to sign and he gave thumb impression other written report but he has also stated that his statement was recorded by the IO and even the IO has submitted that he got the statement of the informant (PW 7) recorded. The Investigating Officer (PW 8) has stated that the case was instituted on the statement of the informant. As such, the learned counsel for the appellants submitted that the very basis of the case Le., the written report is doubted but on this point learned Court below in paragraph 13 of the judgment has elaborately discussed and has observed that the prosecution version has been supported by all the witnesses and the informant and only on the lacuna on the part of the investigating agency, the case of the prosecution cannot be discredited and disbelieved. 12. Learned counsel for the appellants has also submitted that there was no common intention of the appellants 3 and 4, namely, Udai Singh and Birendra Singh to kill the deceased as they assaulted the deceased with fist and slaps only. As such, no case under Section 304 of the Code is made out against all of them. However, all the appellants came and assaulted the deceased. As such, they all were responsible for the assault attributed to death of the deceased. It is also clear that the death as caused due to rapture of spleen caused by assault. As such, all the appellants had common intention to assault the deceased and as they brutally assaulted Somar Mahto which eventually resulted in his death. As such, all the appellants are liable for the offence punishable under Section 304, Part II of the Code. The learned Court below after appreciating the evidence of the witnesses, so adduced, rightly came to the conclusion and convicted the appellants under Section 304, Part II of the Code. As such, all the appellants are liable for the offence punishable under Section 304, Part II of the Code. The learned Court below after appreciating the evidence of the witnesses, so adduced, rightly came to the conclusion and convicted the appellants under Section 304, Part II of the Code. I see no reason to interfere with the conviction of the appellants. 13. However, coming to the question of sentence, learned counsel for the appellants submitted that the occurrence took place in the year 1987 le., about 16 years and these appellants have been amply punished during the prolonged litigation. It has been also observed that there was lacuna on the part of the investigating agency and on the basis institution of FIR was doubtful. That apart according to the doctor, the deceased was suffering from lever ailment and due to that reason the assault caused rapture of spleen and as such it has been submitted that with the assault inflicted by appellants, the deceased usually would not have died if he was not having levier ailment. As such, no case under Section 304, Part II of the Code is made out against the appellants. It has been further submitted that there is no criminal antecedent and previous conviction against the appellants. Moreover," they have remained in jail for sometimes. As such, it requires consideration on point of sentence. 14. Having regard to the submissions, so raised by the learned counse1 for the appellants and the facts ana circumstances of the case, I am of the view that it will be expedient in the interest of justice if the sentences awarded by the Court below are reduced to the period they have already undergone in jail with a fine of Rs. 2,500/- (two thousand and five hundred) each to be deposited by them within three months from the date of receipt/ production of a copy of this order. In default, they shall undergo RI for one year. 15. It is made clear that the amount of fine, if and when realised, by the appellants, shall be distributed equally between two sons of deceased (Somar Mahto), namely, Brajdeo Prasad and Surendra Prasad (PWs 3 and 5 respectively). The appeal is accordingly dismissed with the aforesaid modification in sentence.