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2003 DIGILAW 524 (PAT)

Bhola Mandal v. State Of Bihar

2003-05-02

P.N.YADAV, S.N.JHA

body2003
Judgment P.N.Yadav, J. 1. The facts of the case depicted the manner and circumstances in which a ghastly incident in a sequel to land dispute took place at about 4 p.m. on the 14th November, 1982 at village Bangaon under the jurisdiction of Sanhaula Police Station of Bhagalpur District culminating in murder of the deceased Muneshwar Mandal. Exchange of hot words and abuses was going on between the deceased and his agnate, appellant Sattan Mandal over land dispute between them. In the mean-while, Appellants Biias Mandal @ Ram Bilas Mandal, son of Sattan Mandal and Bhola Mandal, son of Lutan Mandal arrived there hurling abuses against the deceased Muneshwar Mandal. Bilas Mandal was having a farsa in his hand. No sooner had they reached there than Sattan Mandal ordered and instigated that the deceased should be done away with and in pursuance of his order he was caught hold of by Sattan Mandal and Bhola Mandal whereafter Bilas Mandal inflicted a farsa blow on his head causing brain deep injury on his skull. The informant Janardan Mandal (P.W.2) got ready to save his father, Muneshwar Mandal (deceased) but he was chased away. On hearing alarm, Kanahai Mandal (P.W.3), Janeshwar Mahto and Laxman Mandal arrived there and saw the occurrence. One Jaldhar Mandal extended first aid to the deceased whereafter he was taken to Bhagalpur Medical College Hospital where he succumbed to the injury in the early next morning at about 4.45 a.m. 2. Upon the first information report of the incident giving rise to Sanhaula P.S.Case No. 78 of 1982 having been lodged by Janardan Mandal (P.W.2) usual investigation commenced leading to submission of chargesheet against all the three appellants. They were all charged under section 302 read with section 34 and Bilas Mandal was also charged under section 302 of the Indian Penal Code (hereinafter to be referred to as the Code). 3. They were all charged under section 302 read with section 34 and Bilas Mandal was also charged under section 302 of the Indian Penal Code (hereinafter to be referred to as the Code). 3. The defence set up by the appellants as gathered from the trend of cross-examination of the prosecution witnesses seems to be that the deceased and his son (P.W.2) used to exert un-due pressure on the appellants for parting with more land in their favour and hence they caught hold of the mother of the appellant Sattan Mandal, brought her to their house and assaulted her and when the appellant Sattan Mandal rushed to save her they assaulted him as well and the instant case is a cock and bull story. The appellants also entered into defence and they examined a solitary witness, the aforesaid Jaldhar Mandal who spoke of presence of injury on the person of Sattan Mandal. 4. In order to bring home the charges levelled against the appellants the prosecution examined Parsuram Mandal (P.W.1), Kanahai Mandal (P.W.3), Tilbula Devi (P.W.4), wife of the informant, Kaushaliya Devi (P.W.5), Raghunath Mandal (P.W.6), Bishwanath Mandal (P.W.7), the wife and the sons respectively of the deceased, Dr. N. N. Bhagat (P.W.8), who conducted autopsy on the dead body of the deceased and K.K.R Singh (P.W.9), investigating officer besides the informant Janardan Mandal (P.W.2), Kanahai Mandal (P.W.3) was cited in the first information report. All the material witnesses, to wit, P.W.1 to P.W.7 claimed to have seen the incident leading to infliction of fatal blow on the deceased. 5. The trial court has upon a meticulous examination of evidence led at trial found and held the appellants guilty and convicted Bilas Mandal under section 302 and the appellants Sattan Mandal and Bhola Mandal under section 302 read with section 34 of the Code and sentenced each of the appellants to undergo rigorous imprisonment for life. 6. Aggrieved by the judgment and order of conviction and sentence recorded against them the appellant Bhola Mandal preferred Cr.Appeal No. 269 of 1999 and the appellants Sattan Mandal and Bilas Mandal filed Cr.Appeal No. 320 of 1999 from jail. As both the appeals arose out of one and the same judgment and order they were heard together and they are going to be disposed of by this common judgment. 7. As both the appeals arose out of one and the same judgment and order they were heard together and they are going to be disposed of by this common judgment. 7. The appellants have assailed the impugned judgment and order of conviction and sentence by contending that the witnesses claimed by the prosecution to be the eye witnesses cannot be accepted as eye witnesses as they did not really witness the incident for, before they arrived at the scene in pursuance of alarm, assault was complete and the deceased was lying injured in state of un-consciousness; that the deceased was inflicted solitary farsa blow and had the assailant intended to eliminate him he would have certainly repeated the blow and as such clause 3 of section 300 cannot be attracted and the case would come under the purview of section 304 and not under section 302 of the Code: that the appellants Sattan Mandal and Bhola Mandal did not participate in the occurrence and they committed no overs act to facilitate commission of murder and hence their conviction under section 302 read with section 34 of the Code is bad and illegal and the same cannot be sustained and that as a matter of fact the deceased and the informant had caught the mother of Sattan Mandal, took her to their house and assaulted her and when Sattan Mandal tried to save her they brutally assaulted him as a result of which he sustained injury not explained by the prosecution. 8. On the other hand, the counsel for the State has vehemently resisted the contentions put forward on behalf of the appellants and has submitted that the act of the assailant does not come within any of the exceptions enumerated in section 300 of the Code and a careful and cautious scrutiny of evidence available on record would obviate that the assailant inflicted farsa blow on the head of the deceased with intention of causing injury to him and the injury intended to be inflicted was sufficient in the ordinary course of nature to cause his death and hence, the case would come under clause 3 of section 300 and not under section 304 of the Code. It has also been contended on behalf of the State that the appellants Sattan Mandal and Bhola Mandal caught hold of the deceased to facilitate infliction of fatal blow on his head by the appellant Bilas Mandal and that would amount to the active participation in the incident as well as commission of overt act by them and they must be vicariously liable under section 302 read with section 34 of the Code. 9. Though, the evidence of the witnesses has been spelt out in the judgment of the court below it would be relevant and convenient to refer to the same, in brief, here for proper appreciation of rival contentions put forward at the bar. All the material witnesses (P.W.1 to P.W.7) claimed to have seen actual assault being inflicted on the deceased. The informant (P.W.2) stated that quarrel, hot words and abuses were being exchanged between his father (deceased) and the appellant Sattan Mandal over land dispute between them and just then the appellant Bilas Mandal having a farsa along with Bhola Mandal arrived there hurling abuses and on being exhorted by Sattan Mandal to kill the deceased he himself and Bhola Mandal caught hold of him and Bilas Mandal dealt a farsa blow on his head as a result of which he sustained injury and fell down unconscious and after he was extended first aid by one Jaldhar Mandal he was taken to Bhagalpur Medical College Hospital where he died in the early next morning at about 4.45 a.m. Another eye witness whose evidence assumed important significance on account of his name being cited in the first information report is Kanahai Mandal (P.W.3). After hearing hue and cry he rushed to the place of occurrence from his shop and saw the appellant Bilas Mandal inflicting gransa blow on the head of the deceased and the appellants Sattan Mandal and Bhola Mandal standing there. He further clarified that after he set out from his shop and proceeded along the road towards the scene of incident he saw infliction of assault on the victim by Bilas Mandal. The witness appears to have stated before the Investigating Officer (P.W.9) that when he went to the place of occurrence he saw the deceased lying injured and the appellants Sattan Mandal and Bhola Mandal standing there. The witness appears to have stated before the Investigating Officer (P.W.9) that when he went to the place of occurrence he saw the deceased lying injured and the appellants Sattan Mandal and Bhola Mandal standing there. However, that would not mean that P.W.3 did not witness actual assault being inflicted on the deceased. It is quite probable that while proceeding towards the place of occurrence he saw from a distance the appellant Bilas Mandal inflicting assault on the deceased and after he arrived there he saw the deceased lying in injured condition and all the appellants standing there or leaving the scene of incident. Hence, the statement of the witness before the Investigating Officer that when he reached the place of occurrence he saw the deceased lying on the ground cannot give rise to an inference that he had not witnessed actual assault. 10. P.W.4, Tilbula Devi, wife of the informant (P.W.2) claiming herself to be eye witness stated that at about 4.00 p.m. on the fateful day she was at her house and she saw that quarrel and exchange of hot words and abuses betwen the deceased and Sattan Mandal over removal of TATIA wall (demarcation) with straw and bamboo sticks etc.) in between the houses of the two was followed by infliction of farsa blow on the head of the deceased by Bilas Mandal. It is in her evidence that Sattan Mandal asked Bhola Mandal to catch hold of the deceased whereafter Bilas Mandal inflicted farsa blow on the head of the deceased. P.W.5 Kaushaliya Devi, wife of the deceased said that Sattan Mandal and Bhola Mandal caught hold of the deceased and Bilas Mandal dealt a farsa blow on his head. Both P.W.4 and P.W.5 were women and they were expected to be present in their house at the time of incident. The place of occurrence situated at a distance of about 2-3 cubits from the house of the deceased and the appellant Sattan Mandal as would be evident from evidence of P.W.3 and as such their arrival at the scene after hearing quarrel and exchange of hot words is quite natural and probable. It would be unjust to say that they cannot be accepted as eye witnesses merely because they were not cited in the first information report. 11. It would be unjust to say that they cannot be accepted as eye witnesses merely because they were not cited in the first information report. 11. Though P.W.1, P.W.6 and P.W.7 claimed to have witnessed the incident, they appeared to have reached the place of occurrence after infliction of assault on the deceased. However, their statements that they saw the deceased lying in injured condition and the appellants fleeing away would constitute a strong piece of circumstantial evidence lending assurance to the eye-witness account of the incident. 12. We have critically examined and scrutinised the evidence of the prosecution witnesses with the help of counsel for the parties. Though, they have been cross-examined at length nothing has been elicited in their cross-examination which may cast a doubt on the truthfulness of their testimony. They are natural witnesses and have deposed in a forthright manner. Their veracity and credibility has remained un-impeached. 13. The Investigating Officer (P.W.9) registered the instant case on the basis of fardbeyan of the informant (P.W.2) recorded at 12 Noon on 15.11.1982 at Bhagalpur Medical College Hospital. P.W.9 took up investigation, inspected the place of occurrence and recorded the statements of witnesses. He gave a vivid description of the place of occurrence. He found blood fallen on the ground at the place of occurrence and he seized the same. In his cross-examination, he has stated that he did not make a mention of the area over which the blood was found fallen on the ground. That would not introduce any infirmity in his evidence. 14. It is averred in the first information report that besides Kanahai Mandal (P.W.3), Lakshman Mandal and Janeshwar Mahto had also arrived at the time and place of occurrence and they had witnessed the incident. It is true that Janeshwar Mahto and Laxman Mandal have not been examined. But the failure on the part of the prosecution to examine them did not adversely affect the edifice and salient features of the prosecution case particularly when several witnesses, who were found to be truthful supported the prosecution version. 15. It is true that Janeshwar Mahto and Laxman Mandal have not been examined. But the failure on the part of the prosecution to examine them did not adversely affect the edifice and salient features of the prosecution case particularly when several witnesses, who were found to be truthful supported the prosecution version. 15. A few words on defence version that the deceased and the informant caught hold of the mother of the appellant Sattan Mandal, took her to their house and assaulted her and when Sattan Mandal rushed there to save her they assaulted him also as a result of which he sustained injury which was not explained by the prosecution. To probabilise their defence the appellants entered into defence and they examined D.W.1 Jaldhar Mandal who stated that he extended first aid to the deceased and advised his removal to Bhagalpur Hospital. He further stated that he saw a bleeding injury on the head of Sattan Mandal and he asked him to go to Sanhaula hospital. However, injury report or any other paper regarding injury on his head and treatment thereof is conspicuous by its absence from the records. The fact that even though the appellants entered into evidence they did not examine the injured Sattan Mandal and his mother who would have been the most competent witnesses on assault inflicted on them. 16. Counsel for the appellants could not persuade us to accept the defence version that no such incident took place and the deceased was not murdered at the time and place and in the manner alleged by the prosecution and as a matter of fact the informant and the deceased assaulted Sattan Mandal and his mother and the instant case was concocted to implicate the appellants to exert pressure on them to part with more land in favour of the informant. The case of the defence which is not at all probable and plausible must be rejected outright. 17. The case of the defence which is not at all probable and plausible must be rejected outright. 17. The counsel for the appellant Bhola Mandal as well as amicus curiae appearing on behalf of the appellants Sattan Mandal and Bilas Mandal who preferred appeal from the jail has submitted that conviction of the appellant Bilas Mandal under section 302 of the Code is un-warranted and unsustainable for as he is said to have inflicted a single blow on the head, clause thirdly of section 300 of the Code cannot be attracted and hence the act of Bilas Mandal would not amount to murder. In order to appreciate this point raised at the bar it would be relevant and desirable to consider the ingredient "intention" appear- ing in clause 3 of section 300 of the Code which reads as follows : "Thirdly. If it is done with intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death, or". 18. In order to bring a case under clause "thirdly" of section 300 of the Code all the four elements are to be established as laid down in the case of Birsa Singh V/s. State of Punjab, A.I.R. 1958 Supreme Court 465. The four elements are, firstly, it must establish, quite objectively, that a bodily injury is present; secondly, the na- ture of the injury must be proved; thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or uninten- tional or that some other kind of injury was intended and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. If these ele- ments are established the offence would be murder under clause "thirdly" of section 300 of the Code and it does not matter that there was no intention to cause death or there was no intention even to cause an injury of a kind that is sufficient in the ordinary course of nature to cause death and it does not even matter that there was no knowledge that an act of that kind was likely to cause death. Once the intention to cause bodily injury actually found to be present is proved and that injury is sufficient in the ordinary course of nature to cause death the offence would come under clause "thirdly" of section 300 of the Code. 19. In the instant case, Bilas Mandal with farsa in his hand came to the place of occurrence hurling abuses against the deceased and in pursuance of order of his father, Sattan Mandal he dealt a farsa blow on the head of the deceased. Only exchange of hot words and abuses was going on and there was no actual fight between the deceased and Sattan Mandal. The deceased was un-armed. There was no sudden fight nor did the deceased intervene in any fight going on between the parties. There was no provocation from the side of the deceased. The injury caused on the head of the deceased by Bilas Mandal was not accidental or un-intentional nor is there any material to give rise to an inference that some other kind of injury was intended. It would be useful here to refer to injury found on the person of the deceased by Dr. N.N. Bhagat (P.W.8), who conducted autopsy on the body of the deceased. The doctor found incised wound 4" x 1/4" x brain deep on the skull extending 3" above left ear from left parietal region to right parietal region directed obliquely posterity. On dissection he found tableau of skull bone, meninges of brain and brain matter out in the same line and blood clots present in the middle fossa and in the brain matter. In the opinion of the doctor, the injury was antemortem in nature caused by sharp cutting weapon like farsa and the cause of death was shock and haemorrhage as a result of injury to brain. 20. In view of the nature of injury completely damaging the skull and the brain, it can un-doubtediy and reasonably be inferred that the solitary injury inflicted on the deceased was sufficient in the ordinary course of nature to cause death. 21. The evidence brought on records considered together with the fact that the deceased became unconscious soon after infliction of assault on him and he all along remained unconscious and subsequently died would reveal that the appellant Bilas Mandal intentionally inflicted the injury. The injury was inflicted with a deadly weapon. 21. The evidence brought on records considered together with the fact that the deceased became unconscious soon after infliction of assault on him and he all along remained unconscious and subsequently died would reveal that the appellant Bilas Mandal intentionally inflicted the injury. The injury was inflicted with a deadly weapon. There is nothing on record to show that he did not intend to inflict injury with farsa on the head, which was sufficient to cause death in the ordinary course of nature. The irrestible conclusion would be that the appellant committed the offence of murder and not culpable homicide not amounting to murder and he mut be held to be liable under section 302 of the Code. 22. The next point urged by the defence counsel is that the appellants Satish Mandal and Bhola Mandal cannot be said to be vicariously liable for causing murder of the deceased. Section 34 of the Code recognises the principle of vicarious liability in criminal jurisprudence. In accordance with the provision of section 34 of the Code, a person may be vicariously liable when a criminal act is done by several persons in furtherance of common intention of all. In terms of the principle of vicarious liability a person may be liable for act of an offence not committed by him but by another person with whom he shared the common intention. In order to attract section 34 of the Code it is not necessary that each one of the accused must inflict assault on the deceased. It is enough if it is shown that he shared the common intention to commit murder of the deceased and in furtherance thereof each one played his role by doing some act. In the case we are in seisin of the appellant Sattan Mandal ordered and instigated other appellants to eleminate the deceased and soon he and the appellant Bhola Mandal caught hold of the deceased and Bilas Mandal inflicted fatal farsa blow on his head whereafter they ail fled away. The appellants Sattan Mandal and Bhola Mandal by catching hold of the deceased facilitated commission of his murder. They did play an important role in the commission of murder. They must be said to have actively participated in the commission of offence and committed overt act and to have shared common intention to cause fatal blow to do away with the deceased. They did play an important role in the commission of murder. They must be said to have actively participated in the commission of offence and committed overt act and to have shared common intention to cause fatal blow to do away with the deceased. They are obviously liable under section 302 read with section 34 of the Code. 23. The contention that the injury inflicted on the person of the appellant Sattan Mandal has not be explained by the prosecution and that would mean that the prosecution has not come to the court with clean hands and its case is doubtful has been advanced only for being rejected as it is devoid of merit and force. There is nothing on records to show that there was really any injury on the person of the appellant Sattan Mandal as was already observed. 24. The pre-ponderance of evidence available on record does justify the view taken by the trial court and the same cannot and ought not to be interfered with. 25. In the result, it is to be held that there is no merit in the appeals. Both the appeals are, accordingly, dismissed. Conviction and sentence awarded to the appellants by the court below are maintained and confirmed. The appellant Bilas Mandal is already in jail. He shall serve out the remainder of sentence. The appellants Sattan Mandal and Bhola Mandal are on bail. Their bail bonds are cancelled. They must surrender within a month to serve out the remaining period of their sentence failing which the court below shall take coercive measures to procure their arrest. 26. Mrs. Bela Singh, amicus curiae has performed the task entrusted to her and she has extended valuable assistance to the court. She shall get usual remuneration from the Legal Aid Committee of the Patna High Court. S.N.Jha, J. 27 I agree.