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2003 DIGILAW 881 (JHR)

Mahendra Raut v. State of Bihar/now Jharkhand

2003-07-23

D.N.PRASAD, H.S.PRASAD

body2003
JUDGMENT : Deoki Nandan Prasad & Hari Shankar Prasad, JJ.-The sole appellant filed this appeal against the judgment of conviction and sentence dated 30.11.1994 passed by the Additional Sessions Judge, Simdega in Sessions Trial No. 66 of 1992, whereby and whereunder, the learned Additional Sessions Judge convicted the appellant under section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 2. The prosecution case in brief is that one Rajim Sherma Gowala lodged a case alleging therein that he was at his house and, in the meantime, the deceased Raghu Gowala also came there and there was a family discussion going on at that time and the father was stating that harvesting of the paddy is essential and the deceased Raghu Gowala, was asked to do the work of harvesting, but at the same time, the appellant Mahendra Raut assaulted on the head of Raghu Gowala with Danda resulting fracture on his head and the blood started oozing out. Thereafter the appellant fled away. His brother Raghu Gowala was taken inside the house and they tried to take him to the Hospital, but none was available for going to the Hospital at that time and, as such, he was taken to the Hospital next day but because the blood was oozing out, he died. The informant along with his father and villager Tunnu Raut went to the Sarpanch and reported the matter. Thereafter on the advice of the Sarpanch and others, the case was registered against the appellant, which was lodged under section 302 of the Indian Penal Code. 3. The police investigated into the case and submitted charge sheet against the appellant. Witnesses were examined after framing of charge and after hearing both sides, the learned Trial Court convicted and sentenced the appellant in the manner stated above, hence this appeal. 4. There is specific and direct allegation against the appellant for assaulting the deceased Raghu Gowala with Danda on his head, as a result of which, the blood started oozing out and later on Raghu Gowala died. 5. 4. There is specific and direct allegation against the appellant for assaulting the deceased Raghu Gowala with Danda on his head, as a result of which, the blood started oozing out and later on Raghu Gowala died. 5. The Doctor, who held post mortem found the following ante mortem injuries on the person of the deceased : "External.-(1) One lacerated wound on the junction of occipital and parietal bone of the scalp 2" x 1 1/2" X deep to brain matter with the fracture of occipital bond near the junction of both bone. (2) Bruise around both orbit. Internal.- On the opening of the scalp, there was fracture of occipital bone, membrane was ruptured underlying the injury with brain matter lacerated and haemorrhage on brain matter were found, blood clots was seen between membrane and brain matter. The injuries caused by hard and blunt substance, such as wooden Lath; and grievous in nature". He stated in his cross-examination that such injury can be possible in sitting and standing position. 6. P.W. 1 is the father of the deceased who claimed to be an eyewitness of the occurrence. According to him, he along with his son Rajiv Raut, wife and the deceased Raghu Raut were sitting there and there was a discussion in the family matters when all on a sudden the accused/ appellant assaulted with Oanda on the head of Raghu Gowala. Blood was oozing out due to the said injury and later on Raghu Gowala died. He stated in his cross-examination that he has been residing with the informant Rajim Sherma Gowala whereas the deceased Raghu Gawala has been residing separately and Raghu Gowala was also separate in cultivation. He further admitted in his cross-examination that the appellant assaulted Raghu Gawala with wooden danda, which was lying there and a single blo\i1l was given. 7. p.w. 4 is the informant who also deposed in the same way claiming that the• appellant assaulted on the head of the deceased and there was a single blow. He proved the first information report, which was lodged by him. He stated in his cross-examination that he along with deceased Raghu Gowala were sitting face to face nearby and there was a family discussion going on between them at the relevant time. According to him, after assault, the appellant Mahendra Raut fled away. 8. P.W. 5 is the wife of the deceased. He stated in his cross-examination that he along with deceased Raghu Gowala were sitting face to face nearby and there was a family discussion going on between them at the relevant time. According to him, after assault, the appellant Mahendra Raut fled away. 8. P.W. 5 is the wife of the deceased. She also claimed to be an eyewitness of the occurrence. She is also consistent in stating the prosecution case and admitted that there was a single blow by Danda. She also deposed that the accused/appellant fled away after assault and her husband was assaulted from back. 9. P.W. 6 stated that he got information that Raghu Raut has been assaulted by Mahendra Raut. Thereafter he went to the spot and found the dead body of Raghu Raut. No any other witness has been examined and thereafter the appellant was examined under section 313 of the Code of Criminal Procedure and he denied the allegation. 10. It may be noted here that the Investigating Officer has not been examined in the case. It is true that the allegation as made out in the first information report that the appellant gave a single blow by the wooden danda on the head of the deceased resulting his death and this fact has been substantiated/corroborated by the witnesses i.e. P.Ws. 1, 4 and 5 which has further been corroborated by the medical evidence as the Doctor also found head injury. 11. Mr. J.P. Pandey, learned counsel appearing on behalf of the appellant submitted that the learned Trial court committed error in convicting the appellant under section 302 of the Indian Penal Code as there was no intention on the part of the appellant to kill the deceased and had there been such intention, the appellant would have given repeated blow on the head or on the other parts of the body of the deceased as well as the assault took place at the spur of moment and, as such, the intention/knowledge on the part of the appellant is quite lacking to attract the offence under section 302 of the Indian Penal Code and, at best, the offence would come under section 304 Part II of the Indian Penal Code. 12. 12. It is true that the assault took place at the spur of moment as all the witnesses are consistent in depositing that the appellant gave a single blow on the head of the deceased by Danda which was just lying at the spot and there was no premeditation or pre-plan rather occurrence took place only in the midst of family discussion and he assaulted by the Danda which was lying there. It is also significant to note that the deceased could not be shifted to hospital at the same time and he died because of blood oozing out. Thus he could have been saved if medical help was provided in the same night and, so from the circumstances gathered it is obvious that the appellant had no intention to kill the deceased. We are constrained to hold that there is lack of premeditation or any planning with an intention to kill the deceased which does not attract the offence under section 302 of the Indian Penal Code in the instant case and the allegation and the evidence as collected will at best constitute the offence under section 304 Part II of the Indian Penal Code. 13. In the result, we convict the appellant under section 304 Part-II of the Indian Penal Code instead of Section 302 of the Indian Penal Code. Hence the order of conviction and sentence passed by the learned Trial Court for the offence under section 302 of the Indian Penal Code is set aside. It appears that the appellant has already been in custody since 30.11.1994 and he has already been sufficiently punished and, as such, the period already undergone by him in jail custody will meet the ends of justice. Accordingly, he is sentenced to undergo rigorous imprisonment for the period already undergone by him in the jail custody. Hence, the appellant is directed to be released forthwith if not wanted in any other case. 14. With this modification in the conviction and sentence, the appeal is dismissed.