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2005 DIGILAW 590 (JHR)

Matru Lal Mandai @ Matru Mandai v. State of Bihar

2005-08-09

R.K.MERATHIA

body2005
By Court.-Nobody appeared for the appellant. However, Mr. Pramod Kumar Choudhary, assisted the Court on behalf of the appellant as Amicus Curiae and Mr. A.B. Mahato argued on behalf of the State. 2. This Appeal is directed against the judgment of conviction dated 6.2.1991, passed by the learned Sessions Judge, Deoghar convicting the appellant for the offences under Section 304 Part I of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for ten years. 3. The prosecution case in short is that Bhola Rai, (the deceased) alongwith others were reciting 'Kirtan' in the evening by making round in the village on 29.4.1987 at about 7 PM. The 'Kirtan' group of about five persons reached near the house of the appellant and after taking 'Prasad they moved ahead singing holy song but when they reached near the house of one Badri Mandai, the appellant came out of the house of Badri Mandai with a Lathi and struck a heavy blow on the head of Bhola Rai. When Bhola Rai tried to run away, other accused persons surrounded him. On this, the other members of "Kirtan' Party took to their heels raising Halla on which Sahdeo Rai, the son of Bhola Rai and Mahadeo Mandai reached at the spot and saw the accused persons fleeing while Bhola Rai was lying on the ground with bleeding head injury. 4. The F.I.R. (Exhibit-3) was lodged in the night itself. The motive of assault was said to be the land dispute. A case under Sections 325, 341, 323 read with Section 34 IPC. was registered. Bhola Rai succumbed to the injuries in the Hospital on the next day i.e. 3.4.1987 and then an offence under Section 304 I.P.C. was also added in the case. 5. The defence was denial of the occurrence in the manner as alleged, and that the deceased alongwith some of the P.Ws. used to take drink and it is possible that he sustained injuries due to some querrel while drinking .and that the accused persons have been falsely implicated due to the admitted land dispute. P.W. 1, P.W. 2 and P.W. 5 are the eye-witnesses of the occurrence and they have fully supported the case. P. W. 7 is the doctor and as per the medical evidence the deceased died due to the head injury. 6. P.W. 1, P.W. 2 and P.W. 5 are the eye-witnesses of the occurrence and they have fully supported the case. P. W. 7 is the doctor and as per the medical evidence the deceased died due to the head injury. 6. The learned trial court an appreciation of the matenals on record correctly found that the occurrence took place in the manner as alleged but in my opinion, the conviction should have been under Section 304 Part 2 of the IPC. in place of Section 304 Part I of the I.P.C. inasmuch as admittedly only one Lathi blow was given on the head of the deceased and there was no repetition, although no resistance was offered by any member of the "Kirtan' Party. 7. In my opinion, there was no intention of causing death or of causing such bodily injury as is likely to cause death. It appears that the assault was made on the head with the knowledge that it is likely to cause death but without any intention to cause death. I am inclined to convert the conviction under Section 304 Part I to a conviction under Section 304 Part 2 of the Indian Penal Code. 8. On the question of sentence, it appears that the appellant was aged about 52 years at the time of the judgment. Accordingly, now he must be around 64 years. Moreover, the case relates to an incident of 1987. It appears that the appellant has remained in jail for about three months. In the circumstances, I am not inclined to send the appellant to jail again at this stage. Accordingly, the sentence is modified to the period already undergone and also a fine of Rs. 10,000/- (Rupee Ten thousand) and in default to undergo R.I. for one year. After the fine is deposited the same may be handed over to the son/heirs of the deceased, Bhola Rai as a token compensation. The bail bonds of the appellant is cancelled. However, if the said amount is deposited, or the appellant suffers R.I. for one year in default of fine, he will be released. 9. With this modification in the conviction and sentence, the appeal is partly allowed.