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2008 DIGILAW 370 (PAT)

Ram Dhyan Mahto v. State of Bihar

2008-02-20

body2008
S.K. SHARMA, J.:- The sole appellant Ram Dhyan Mahto has preferred this appeal against the judgment dated 5.8.1993 passed by Additional Sessions Judge II, Patna in Sessions Trial No. 758 of 1991 where-by the appellant was found guilty under Section 307 of the Indian Penal Code and was convicted and sentenced thereunder to undergo rigorous imprisonment for four years and the rest three accused namely, Kaushalya Devi, Chandrakalia Devi and Sanjay Kumar have been acquitted from the charge. 2. According to prosecution case, Malti Devi had given her fardbeyan at Gurudwara Singh Hospital, Patna City on 5.5.1991 at 11.30 hours in which she alleged that at about preceding 9.30 hours her daughter had been to the hand pump to fetch water. The handle of the pump was used to be kept in the custody of the appellant Ram Dhyan Mahto and when she demanded the handle, she was abused and was assaulted by sword. On account of assault by sword, the informant's daughter received injury on the back portion of her head. She after receiving injury, fell down and when the informant Malti Devi, mother of the injured, came for rescue, she was also assaulted by appellant with lathi on her right thigh and right shoulder. Thereafter, other accused Sanjay Mahto, Kaushalya Devi, Chandrakaliya Devi and Raj Kulia Devi (since dead) came and they also assaulted the injured by throwing bricks. The injured were brought to hospital for treatment where, as stated above, her fardbeyan was recorded by the police. The matter was investigated into and after completion of investigation, charge-sheet was submitted under Sections 146, 148, 149, 307, 324, 323 and 336 of the Indian Penal Code against the appellant and other accused. After cognizance, case was committed to the court of sessions. The trial proceeded. Charge under Section 307 of the Indian Penal Code was framed against the appellant and charge under Section 337 of the Indian Penal Code was framed against other three accused persons, who have been acquitted, in Cluding Raj Kalia Devi (since dead). Charges were explained them. They pleaded innocence and preferred to face the trial. 3. The defence of the appellant and other accused persons was of false implication due to previous enmity. 4. In order to prove its case, the prosecution has examined altogether 7 witnesses. Charges were explained them. They pleaded innocence and preferred to face the trial. 3. The defence of the appellant and other accused persons was of false implication due to previous enmity. 4. In order to prove its case, the prosecution has examined altogether 7 witnesses. They are P.W.1 Dilip Kumar Paswan, P.W. 2 Malti Devi, the informant, P.W. 3 Suresh Thakur, husband of the informant and father of injured Minta Devi, P.W. 4 Minta Devi, one ot the injured, P.W.5 Suresh Prasad, P.W. 6 Dr. Chandeshwar Prasad Srivastava and P.W. 7 Harinandan Singh, the Investigating Officer. 5. P.W. 1 has not supported the prosecution and has been declared hostile. P.W. 5 is a for witness who has proved the fardbeyan as Ext.1. 6. P.W. 2 is the informant of this case. She in her evidence has stated that her daughter Minta Devi had been to the j hand pipe to fetch water but the accused Ram Dhyan Mahto did not allow her to fetch water. She made protest. Thereafter accused Ram Dhyan Mahto went his house and brought a sword and gave a sword blow on the back portion of head of her daughter which caused bleeding injury. She fell down. The accused Ram Dhyan Mahto thereafter went to his house and brought a lathi and assaulted her in lying condition and to this witness also. This witness was cross-examined in detail on the point of manner of occurrence but she remained intact by stating that her daughter was assaulted with sword by accused Ram Dhyan Mahto and thereafter she and her daughter were assaulted by lathi. 7. P.W. 3 is father of injured Minta Devi and P.W. 4 is Minta Devi, injured. Both of them have supported the prosecution case. 8. P.W. 6 is the doctor who has stated that on 5.5.1991 he was posted at Patna City Hospital and at 12.30 P.M. he examined Minta Devi and found following injuries: (i) Sharp cutting injury on occipital area 6" x 1" x 1/2". (ii) Sharp cutting injury on occipital area just right of first injury 3" x 1/2" x 1/2". (iii) Tenderness on the back side of the chest. 9. Injury Nos. (i) and (ii) were causedby sharp cutting weapon and injury no. (iii) was possible by hard and blunt substance. According to doctor, the injuries were dangerous to life. 10. (ii) Sharp cutting injury on occipital area just right of first injury 3" x 1/2" x 1/2". (iii) Tenderness on the back side of the chest. 9. Injury Nos. (i) and (ii) were causedby sharp cutting weapon and injury no. (iii) was possible by hard and blunt substance. According to doctor, the injuries were dangerous to life. 10. On the same day, this witness also examined Malti Devi and found following injuries: (i) Tenderness on right shoulder and pain. (ii) Tenderness on right thigh. 11. Both the injuries were caused by hard and blunt substance. Both the injury reports have been marked as Exts. 2 and 2/1. The doctor has not been cross-examined. So his evidence has remained intact. 12. PW. 7 is the Investigating Officer who had recorded the fardbeyan (Ext. 1) of the informant. This witness has stated that he took up investigation of the case and after completion, submitted charge-sheet. This witness has stated that the informant and her daughter were in injured condition at the time of recording of fardbeyan. 13. Learned counsel for the appellant has submitted that there was no intention to do away with the life of any of the person as there was no repetition of assault or there was no intervening circumstances which could have prohibited the appellant from eliminating her if he desired. He has further submitted that in such circumstances Section 307 of the Indian Penal Code has not been proved against the appellant. 14. After analyzing the entire evidences on record, it appears that all the witness have Supported the prosecution case. Though no independent witness was examined, but even if the evidence of injured are looked into, it appears that they received injuries at the hands of the appellant. 15. Learned counsel for the apellant has submitted that there is nothing on the record which could indicate that the appellant had any intention to cause murder to the injured or any other person. So the ingredients of Section 307 of the Indian Penal code is lacking. 16. Though the doctor has not been cross-examined, but the injured has stated that they had received injuries at the hands of the appellant by dangerous weapon namely, the sword. So the ingredients of Section 307 of the Indian Penal code is lacking. 16. Though the doctor has not been cross-examined, but the injured has stated that they had received injuries at the hands of the appellant by dangerous weapon namely, the sword. Taking into consideration the evidences of record, I am of the view that the conviction of the appellant under Section 307 of the Indian Penal Code is fit to be converted into Section 324 of the Indian Penal Code. Accordingly, conviction of the appellant is converted into Section 324 of the Indian Penal Code. 17. On the question of sentence, learned counsel for the appellant has submitted that the occurrence is of the year 1991 and the appellant has remained in custody since the date of judgment i.e. 5.8.1993 and he was released on bail by this court vide order dated 7.10.1993. So, learned counsel for the appellant submits that some lenient view may be taken and if the sentence of the appellant is reduced to the period already undergone by him may be sufficient for the ends of justice. 18. I am in full agreement with the submission of the learned counsel for the appellant. Accordingly, the sentence of the appellant is reduced to the period already undergone by him which will be sufficient for the ends of justice. 19. In the result, this appeal is dismissed with modification both in conviction and sentence.