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2003 DIGILAW 808 (ALL)

MAHABIR v. STATE OF U P

2003-04-10

K.N.OJHA, M.C.JAIN

body2003
K. N. OJHA, J. This appeal has been preferred against judgment and order dated 30-11-1981, passed by Sri D. P. Srivastava, Sessions Judge, Jalaun at Orai in ST No. 236 of 1981, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo life imprisonment. 2. We have heard Sri Rajesh Ji Verma, learned Counsel for the appellant and Sri Shekhar Yadav, learned AGA for the State and have gone through the record. 3. Chintaman (PW 1) resident of village Bohadpura, police station Kotwali Orai, District Jalaun, lodged FIR under Section 302 IPC against appellant Mahabir residents of the same village on 31-7-1981 at 3. 10 p. m. that appellant committed murder of Chhinga son of informant Chintaman on 31-7-1981 at about 2 p. m. in village Bohadpura, which is at a distance of 7 km. from the police station Kotwali Orai. It was written that there had been litigation of Gaonsamaj land between the parties. In 1976, accused and his family members were prosecuted. Parties compromised and appellant agreed not to interfere with the possession of the informant in respect of Gaonsamaj land. In view of this compromise accused and others were acquitted but they again started to raise dispute about the land. The case in respect of the land was pending and it was actively contested by Chhinga. 25-7-1981 was the date fixed but it was adjourned to 11- 9-1981. Appellant had held out in the village that he was being harassed by the deceased. It is said that at about 2 p. m. on 31- 7-1981 when Chhinga was lying on his cot in verandah, Mahabir Prasad went and gave two blows with kulhari. At that time complainant and his grand-son Pappu alias Jag Mohan were inside the house. On alarm raised by Chhinga, the complainant and the witnesses reached there and saw the appellant running away with axe in one hand and knife in another hand. Chhinga died on the spot. 4. Investigation was made by S. I. Tirathraj Pandey. He prepared site-plan, recovered blood stained portion of cot and clothes. Chemical examiner also found blood on the articles sent. 5. Post-mortem examination on the dead body of Chhinga was done in the district hospital, Orai on 1-8- 1981 at 2. 05 p. m. Age of Chhinga deceased was about 30 years. About one day had passed since he died. He prepared site-plan, recovered blood stained portion of cot and clothes. Chemical examiner also found blood on the articles sent. 5. Post-mortem examination on the dead body of Chhinga was done in the district hospital, Orai on 1-8- 1981 at 2. 05 p. m. Age of Chhinga deceased was about 30 years. About one day had passed since he died. Following ante-mortem injuries were found on the dead body: (1) Incised wound 6 cm x 3 cm on right side neck. (2) Incised wound 6 cm x 3 cm on right side back of neck. (3) Abrasion 4 cm x 2-1/2 cm on right shoulder. 6. Injuries No. 1 and 2 were vertebra deep. Blood vessels were cut including third cervical vertebra. Semi-digested food, 180 Gm. in quantity, was found in stomach. Small intestine contained gases. Large intestine contained gases and semi-solid faecal matter. In the opinion of Doctor, death was due to shock and haemorrhage as a result of ante-mortem injuries. 7. After completing the investigation, the charge-sheet was submitted under Section 302 IPC. The case was committed to the Court of Session. Charge under Section 302 IPC was framed against the appellant and prosecution examined PW 1 Chintaman, PW 2 Ram Kishun and PW 3 Jag Mohan as eye-witnesses of the occurrence. PW 4 Har Dayal Goswami is clerk of Sri Harish Chandra Singh, Advocate, for the deceased who had written adjournment application on 25-7-1981. PW 5 is constable Jagdish Chandra Misra, who prepared chick report on the basis of the FIR lodged by Chintaman. PW 6 is Dr. R. K. Seth, who performed autopsy on the dead body of Chhinga on 1-8-1981. 8. Accused Mahabir had denied his participation in the crime and alleged that due to pending litigation, he had been falsely involved in the crime. 9. FIR and the statements of the eye-witnesses show that the occurrence did take place on 31-7-1981 at 2 p. m. The place of occurrence is situated in village Bohadpura, which is at a distance of about 7 km. from the police station Kotwali Orai. FIR was promptly lodged by name against the appellant on the same day at 3. 10 p. m. In the FIR motive specifically finds place that due to enmity of litigation pending between the deceased and the appellant in respect of possession of Gaon Samaj Land, murder was committed by the appellant of the deceased. FIR was promptly lodged by name against the appellant on the same day at 3. 10 p. m. In the FIR motive specifically finds place that due to enmity of litigation pending between the deceased and the appellant in respect of possession of Gaon Samaj Land, murder was committed by the appellant of the deceased. It is also specifically written in the FIR that the appellant had threatened that Chhinga had to bear consequences as he was actively conducting the case. It is also mentioned in the FIR that the injury was caused with axe by the appellant to Chhinga. Pappu alias Jag Mohan, grand-son of the informant and informant himself reached the spot. On alarm, Ram Kishun, Mantai, Pancham and others also reached the spot and saw accused Mahabir appellant running away from the place. He was having axe in one hand and knife in another, while running away. 10. The presence of witness PW 1 Chintaman aged about 70 years on the spot is natural because he lives in the same house in which Chhinga was lying on cot as he had some eye-trouble. The presence of another witness PW 2 Ram Kishun is also natural as his house is adjoining to the house, of the victim and on alarm, he ran to the spot and saw the accused running away after causing injuries to Chhinga. PW 3 Jag Mohan, who is son of deceased Chhinga was aged about 11 years. He was preparing medicine of neem leaves inside his house for the treatment of the eyes of his father Chhinga. On alarm, he and his grand-father Chintaman ran to Chhinga and saw injury being caused by appellant to Chhinga with axe and running away. The witnesses have stated that too injuries were caused with axe which reconcile with two incised wounds, finding place in the post-mortem examination report. The presence of these witnesses on the spot is natural. Their statements are consistent. FIR does not suffer from deliberation, consultation or inordinate delay. There is motive on the part of the appellant to commit this crime. The statements of the eye-witnesses in harmony with the FIR post-mortem examination report and other papers are sufficient to bring the guilt home to the accused on charge under Section 302 IPC. Their statements are consistent. FIR does not suffer from deliberation, consultation or inordinate delay. There is motive on the part of the appellant to commit this crime. The statements of the eye-witnesses in harmony with the FIR post-mortem examination report and other papers are sufficient to bring the guilt home to the accused on charge under Section 302 IPC. "kathari" which was lying on the cot, a portion of the cot, earth and "saafi" were found containing blood stains, according to the report of the chemical examiner. Thus, there is nothing to doubt about the offence being committed by the appellant. 11. Learned Counsel for the appellant has submitted that the witnesses reached the spot about 15 minutes after the occurrence and no one could see as to who caused injury to Chhinga. There is nothing on record, which may show that Chhinga or his family members had enmity with any other person. Son and father of Chhinga were present in their house. Chhinga was lying on cot at his house because he had trouble in his eyes. When father and son were present in the same house, it cannot be believed that some unknown person came inside the house, caused fatal injuries, ran away and father and son could not witness the occurrence. When these two witnesses were present in the same house, it cannot be believed that they reached the spot 15 minutes after the real culprits ran away. The same case is with PW 2 Ram Kishun, whose house is adjoining to the house of the complainant, who has corroborated the statements of other two eye-witnesses, complainant Chintaman and PW 3 Jag Mohan. Thus, the contention of the learned Counsel for the appellant is not maintainable that the witnesses reached the spot 15 minutes after the occurrence. 12. Learned Counsel for the appellant has further submitted that Gaon Samaj land is of State of Uttar Pradesh and there cannot be any litigation or enmity between the two parties in respect of Gaon Samaj land. This argument is also not maintainable. The land may be of Gaon Samaj but possession remains of some other persons, who may be using the land in many ways including planting trees on it. Therefore, to say that there can be no litigation between two individual persons in respect of Gaon Samaj land, is not maintainable. 13. This argument is also not maintainable. The land may be of Gaon Samaj but possession remains of some other persons, who may be using the land in many ways including planting trees on it. Therefore, to say that there can be no litigation between two individual persons in respect of Gaon Samaj land, is not maintainable. 13. Learned the appellant counsel has further submitted that a person, who had gone with axe in one hand and caused injuries to the victim therewith, will not have knife in the other hand while running away from the place of occurrence. In the instant case, it was board day light murder by entering into the house of the victim in presence of the members of the family inside the house. Therefore, the presence of the witnesses was natural. The appellant was well knowing that if injuries were caused with axe, the victim would raise alarm and the family members and the persons living in the vicinity would run to the spot. Effort could be made to apprehend the appellant. In such circumstances he had to make an arrangement to save him from the clutches of the witnesses, who would chase and attempt to over power him. Therefore, he had to be alert while running away and to make some plan that if any how he was resisted by the witnesses, he could save himself and escape. Axe is a weapon which is sharp edged one tagged with wooden portion about 1 or 1-1/2 feet in length. While running after causing injuries to the victim with axe, he could not be sure of being likewise successful to cause axe injury to the witnesses also, trying to catch hold of him. There was equal possibility of his being disarmed by the witnesses of the axe by holding its wooden portion. Therefore, holding of knife in other hand could be a better weapon of defence for the appellant against the witnesses attempting to over power him. Therefore, having regard to the facts and circumstances of the present case, it is no improbability that the appellant had knife in other hand while running away after committing crime. It is also well explained as to why he did not leave the axe at the spot. Indeed, he could not leave the evidence of crime by his own act. Therefore, having regard to the facts and circumstances of the present case, it is no improbability that the appellant had knife in other hand while running away after committing crime. It is also well explained as to why he did not leave the axe at the spot. Indeed, he could not leave the evidence of crime by his own act. In any case the subsequent conduct of the appellant after committing the crime does not affect the merit of the case. 14. In instant case a person, aged about 31 years, was done to death. The impugned order awarding life imprisonment to the appellant does not require any interference by this Court, as it is lesser of the two alternative sentences prescribed for murder. 15. We have gone through the judgment delivered by the learned Sessions Judge and we subscribe to the conclusion supported by reasoning. It does not call for any interference. 16. The appeal preferred by Mahabir is dismissed. He is on bail. His bail is cancelled. He be arrested immediately and sent to jail to serve out the sentence of life imprisonment. 17. Let a copy of this judgment alongwith record be sent to the lower Court for compliance and report to this Court within two months from the date of receipt of the record. Appeal dismissed. .