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2008 DIGILAW 56 (PAT)

Mahendra Mukhia v. State Of Bihar

2008-01-10

SHYAM KISHORE SHARMA

body2008
Judgment Shyam Kishore Sharma, J. 1. The Sole appellant Mahendra Mukhiya has challenged the judgment of his conviction and order of sentence dated 6th March, 1993 passed by Sri Chakra Dhar Rai, Ist Additional Sessions Judge, Samastipur in Sessions Trial No. 154 of 183/46 of 1992 whereby the appellant was found guilty for committing murder and he was accordingly convicted under Sec. 304 Part 2 of the IPC and was sentenced to undergo R.I. for 10 years. 2. As per fard beyan (Exhibit-A) the prosecution case is that one O.D. Slip dated 6.6.1980 was issued by 3.30 PM by the doctor of Referral Hospital, Rosera to Rosera Police Station. Assistant Sub-Inspector of Rosera Police Station PW 4 Sri C.D. Singh recorded the fard beyan in Referral Hospital, at 10 P.M. on 26.8.1980 of the then injured Mahraj Mukhiya who later on died. He in his statement stated that in the same morning he had gone to cut earth towards Kareh River and returned to his house in the evening. Prior to his arrival a scuffle has occurred between his son (Naresh Mukhiya) and the son of his Sarhu (Laltun Kukhia) in respect of putting earth on the filed of lady finger. At about 3 PM Maharaj Mukhia had altercation with Mahendra Mukhia. Mahendra Mukhia took out a dagger and pierced in the left side of the stomach of Maharaj Mukhia. He fell down. On cry his father Fhudan Mukhia PW 1, his wife Savitri Devi PW 2 daughter-in-law and other family members arrived but accused Mahendra Mukhia succeeded in escaping with dagger. He was chased by the Fhudan Mukhiya but could not succeeded. The informant/deceased further stated that he was living in the village of father-in-law from the last five years where his Sarhu namely, the present appellant was also living there from 6-8 years. The injured was brought to hospital by his father and others. The FIR was registered under Sections 324/307 of the IPC. Subsequently the injured died and the case was converted under Sec. 302 of the Indian Penal Code. After investigation the charge sheet was submitted under Sec. 302 Indian Penal Code. Cognizance was taken and trial proceeded. 3. In course of trial charges were explained to the accused, he pleaded innocence and claimed of false implication on account of some interest of the deceased and his family members in the family property. After investigation the charge sheet was submitted under Sec. 302 Indian Penal Code. Cognizance was taken and trial proceeded. 3. In course of trial charges were explained to the accused, he pleaded innocence and claimed of false implication on account of some interest of the deceased and his family members in the family property. The defence has not adduced any evidence. In order to prove its case the prosecution has examined 8 witnesses. They are PW 1 Fhudan Mukhia father-in-law of the deceased as well as of the appellant, PW 2 Savitri Devi wife of the deceased, Naresh Mukhia who is the minor son of the deceased as PW 3, PW 4 the I. O. Chandradeo Singh PW 5 the another I. O. Kesh Nath Rai and also another I. O. Rajesh Prasad Singh as PW 6 formal witness. Besides them two doctors were also examined they are Dr. Kameshwar Pd. Sinha PW 7 and Dr. Mohan Sinha PW 8. 4. The point for determination was as to whether the occurrence as has occurred in the manner as stated by the informant or witnesses or not. Death of Mahendra Mukhiya is not in dispute. It is also not in dispute that on the date and time of occurrence Mahendra Mukhia has received the injury on account of use of dagger. PW 1 Fhudan Mukhia was declared hostile as he has not supported the case. It appears that he had motive do so because he was having only his daughters and no son. His one of the son-in-law was killed and so he did not want to lose the company of his remaining son-in-law. That appears to be reason of his not supporting the case against his one son-in-law who is the appellant. PWs 2 and 3 are the eye witness to the occurrence. The occurrence has occurred in their presence. PW 2 has stated that about five years earlier at about 3-4 P.M. a scuffle initially took place between the deceased husband and the appellant. Thereafter, the appellant took out his dagger and pierced in the below portion of his stomach. Her husband, thereafter, was being carried to hospital and during treatment he succumbed to injuries. She has stated that the occurrence took place due to putting earth on the field of lady finger. Thereafter, the appellant took out his dagger and pierced in the below portion of his stomach. Her husband, thereafter, was being carried to hospital and during treatment he succumbed to injuries. She has stated that the occurrence took place due to putting earth on the field of lady finger. The earth was given by the son of the deceased which was not liked by the accused so there was scuffle and this assault. She was living in one room whereas another room was being occupied by the accused. PW 1 is the owner of the homestead land. PW 2 has no land rather she was a poor person and she stated that prior to the occurrence there was no dispute between her husband and the accused. The occurrence occurred in presence of PW 3. PW 3 was initially tested by the Court about his competence to be deposed because he was a child witness. The court put certain questions on him before satisfying that he was capable to make answers and when the court was satisfied that the child was competent to depose then the court recorded the deposition of the witness No. 3. PW 3 in his evidence supported the statement of his mother that in the evening his father was assaulted by the accused who pierced dagger in the stomach of his father, who was taken to hospital. Later on the death occurred. These two witnesses namely, PWs 2 and 3 are the natural witnesses of the occurrence, they are the inmates of the house. No previous enmity could be pointed out so their evidence is fit to be relied that on the date and time of occurrence there was assault by the accused to the injured/informant/deceased. PW 4 is the I. O. who was posted at Rosera Police Station on 26.6.1980. He received one O.D. slip from hospital and after going there recorded the fard beyan of injured Mahendra Mukhia. He narrated the contents of the fard beyan of the injured which was found to be correct and then he put his L.T.I. which is marked as Exhibit-1. On that basis the formal FIR Exhibit-2 was drawn up. PW 4 inspected the injuries of the injured and prepared a report (Ext-3). He narrated the contents of the fard beyan of the injured which was found to be correct and then he put his L.T.I. which is marked as Exhibit-1. On that basis the formal FIR Exhibit-2 was drawn up. PW 4 inspected the injuries of the injured and prepared a report (Ext-3). He went to police station and examined the witnesses and the witnesses in their evidence supported that at the date and time of occurrence there was assault which caused injury to the informant. The injured, thereafter, was referred to Darbhanga where he died and the post mortem was done. PW 4 received the post mortem report (Exht-5). He has completed the investigation and in the mean while he on account of his transfer, handed over the charge so the charge sheet was submitted by PW 5. 5. The most important evidence for the case was the statement i.e. fard beyan of the injured/informant who later on died. It was recorded on 26.8.1980 in the Referral Hospital Rosera. The informant in his statement has narrated the manner of occurrence and stated that on the date and time of occurrence he was assaulted by the appellant. After making this statement that person has died. Then this can be safely treated as dying declaration of the informant. In dying declaration there is clear statement of the informant/deceased that he was stabbed by the appellant Mahendra Mukhia in his stomach on left side. Dying declaration has been supported by the PWs 7 and 8 that there was injury on account of stabbing. Therefore, there was ample evidence before the Court to form an opinion that on the date and time of occurrence there was assault made by the appellant to the informant who died, in the manner as stated by the informant and witnesses PWs 2 and 3. The post mortem report was not duly proved so it cannot be looked into. The doctor who conducted autopsy was not examined. Therefore, cause of death could not be proved. It could only be proved that Maharaj Mukhia died at DMCH where his post mortem was done, which has come on the record. Therefore, it could not be a case under Sec. 302 IPC rather it is a case in which conviction is fit to be sustained under Sec. 304 Part 2 of the Indian Penal Code. It could only be proved that Maharaj Mukhia died at DMCH where his post mortem was done, which has come on the record. Therefore, it could not be a case under Sec. 302 IPC rather it is a case in which conviction is fit to be sustained under Sec. 304 Part 2 of the Indian Penal Code. The court has rightly passed the judgment of conviction and convicting the appellant under Section 304 Part 2 of the Indian Penal Code. 6. On the question of sentence it has been argued on behalf of the appellant that the occurrence is of 1980. No previous conviction has been brought on the record and there was no intention to cause death. The appellant has remained in custody during trial for about 6 months so the period already undergone by the appellant may be deemed to be sufficient. 7. This is a case of the year 1980 and about 27 years have been passed but the death was caused. The son and wife of the deceased are poor persons So, I am only inclined to modify the sentence of the appellant and it is accordingly, modified to the extent that period undergone by the appellant besides a fine of Rs. 25,000/- shall be deemed to be sufficient for the ends of justice. Therefore, the appellant is directed to pay Rs. 25,000/- to the wife or son of the deceased Mahendra Mukhia whoever is alive. The amount shall be deposited by way of bank draft in favour of the wife/son of the deceased. It is also made clear that if the fine is not deposited then the appellant will have to undergo R. I. for Six months. With the aforesaid modification in the sentence this appeal is dismissed.