Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 974 (JHR)

Rishikesh Mahra v. State of Jharkhand

2009-07-15

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT By Court: All the nine appellants were charged under section 302/34 of the Indian Penal Code for committing murder of one Noonamani Dasi in furtherance of their common intention. The trial court having found all the appellants guilty for the said offence sentenced each of them to undergo imprisonment for life. The case of the prosecution is that on 9.10.1989 the informant Ram Dayal Mahra (P.W.8) along with others, namely, Narayan Mahra (P.W.4), Fagu Mahra, Mochan Mahra and Rajan Mahra were playing musical instruments at the community hall situated in the village Burhwatanr and when they saw all the appellants coming to community hall at about 5 P.M, they stopped playing their musical instruments as there has been animosity in between the parties. On reaching there the appellant Indradeo Mahra asked them to play music again but they did not do so. Upon it, Indradeo Mahra and also other appellants started assaulting him. On seeing this, Noonamani Dasi, mother of the informant came rushing over there and tried to save her son from being assaulted. But all the appellants started assaulting her and the appellant, Baldeo Mahra pulled her down to the ground by catching hold of her hair. Thereafter the appellant Indradeo Mahra sat over her chest and pressed it forcibly. At that point of time, co-villager,Jitu Mahra (P.W.2) came and tried to save the mother of the informant from being assaulted, but said Jitu Mahra was also assaulted by the appellant, Rishikesh Mahra. The appellants in that course also assaulted Narayan Mahra (P.W.4) brother of the informant. When the appellants fled away, the informant and others brought Noonamani Dasi to Karon Hospital where they stayed for the whole night and then in the next morning, i.e, on10.10.1989 brought her to Madhupur Hospital where Doctor declared her dead. Thereafter they brought the dead body Karon Police Station where the informant at about 10 O’clock in the night gave his fardbeyan (Ext.3), upon which a case was instituted under section 302/34 of the Indian Penal Code and a formal First Information Report (Ext.4) was drawn. Immediately the matter was taken up for investigation by Prem chand Maliya (P.W.10) who held inquest on the dead body of the deceased and prepared Inquest Report (Ext.5) and sent the dead body for post mortem examination which was conducted by Dr. Immediately the matter was taken up for investigation by Prem chand Maliya (P.W.10) who held inquest on the dead body of the deceased and prepared Inquest Report (Ext.5) and sent the dead body for post mortem examination which was conducted by Dr. Narendra Mohan Sharma (P.W.9) on 11.10.1989 and found the following anti-mortem injuries on the person of the deceased. “ 1.Fracture of right elbow supracondylor. 2.Swelling on right side of chest, in front of 3-½” x 3”. 3. Lacerated wound of right ear 1-½ “ x ½ “. 4. Swelling of left forearm in the wrist 2” x ¾ “ and 5. Abrasion on left wrist ¾ “ On opening the chest of the deceased, Dr. did find fracture of nd, 3rd , 4th and 5th ribs of the right side. Pleura and right lung was found injured at the site of fracture. According to Dr., the deceased died on account of shock and haemorrhage, as a result of injuries found over the chest. Post Mortem Report has been proved as Ext.2. The Investigating Officer having completed the investigation submitted charge sheet against all the appellants, upon which cognizance of the offence was taken. On committal of the case, when the charges were framed, the appellants pleaded not guilty and clamed to be tried. The prosecution in order to prove its case examined as many as 10 witnesses. On them, Rajendra Mahra (P.W.1), Jitu Mahra (P.W.2) and Babu Mahra (P.W.3) have been declared hostile whereas the informant, Ram Dayal Mahra and his brother Narayan Mahra, who were playing musical instruments at the community hall, have been examined as P.Ws. 8 and 4 respectively wherein they have testified about the manner in which occurrence took place. Apart form them, the prosecution has also examined Chand Mani Devi, wife of Narayan Mahra as P.W.6 and Nimiya Devi, wife of Ram Dayal Mahra as P.W.7, who had come to the community hall along with the deceased on hearing hulla. They have testified that when the deceased tried to save the informant from being assaulted, the deceased was done to death. P.W.5 Sachan Bawari a co-villager claimed to have come at the place of occurrence on hearing hulla and saw the occurrence. The trial court having found the testimonies of the aforesaid witnesses to be trustworthy, recorded the order of conviction and sentence as aforesaid. P.W.5 Sachan Bawari a co-villager claimed to have come at the place of occurrence on hearing hulla and saw the occurrence. The trial court having found the testimonies of the aforesaid witnesses to be trustworthy, recorded the order of conviction and sentence as aforesaid. Learned counsel appearing for the appellants submits that earlier to occurrence, a case of theft had been lodged by the appellant Rameshwar Mahra in which Narayan Mahra (P.W.4) and Ram Dayal Mahra (P.W.8) have been convicted and, therefore, they were inimical to the informant and when mother of both the persons in her attempt to climb to the floor of the community hall having no stair fell near the drain and died and taking advantage of this, all the appellants were falsely implicated and, therefore, none of the witnesses claimed to be the eye witnesses are consistent on the point of assault either to Narayan Mahra (P.W.4) or to the informant Ram Dayal Mahra (P.W.8) or even to the deceased, rather their evidences are so contradictory even on the material points that it hardly give credence to be believed but still the trial court has recorded the order of conviction and sentence which is fit to be set aside. Learned counsel appearing for the appellants further submits that testimonies of the witnesses clearly indicate that the accused persons were never sharing their common intention to commit murder of the deceased, rather, as per the evidence, it is only Indradeo Mahra, who caused fracture of the ribs of the deceased, resulting into her death and hence, the trial court committed grave error in convicting all the appellants with the aid of section 34 of the Indian Penal Code and hence, the impugned judgment is fit to be set aside on this count also. Heard learned counsel appearing for the State also. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the informant Ram Dayal Mahra (P.W.8) and his brother Narayan Mahra (P.W.4) have testified that they were playing music at the community hall along with others and when they saw the appellants coming to the community hall, they stopped playing music, upon it the appellant Indradeo Mahra asked them to play music again but when they did not budge to his commend, the appellant Indradeo Mahra started assaulting him. They have further testified that on hearing hulla when the deceased came along with Chand Mani Devi (P.W.6) and Nimiya Devi (P.W.7) at the community hall, the deceased tried to save her son, upon which Baldeo Mahra pulled her down by catching hold her hair whereas the appellant Indradeo Mahra sat over her chest and pressed it, as a result of which ribs of the deceased got fractured. It would be worth while to note that Narayan Mahra (P.W.4) in his evidence has testified that Baldeo Mahra pulled the deceased down and the other accused persons assaulted her but from the evidence of the Investigating Officer it does appear that he had not made such statement under section 161 of the Code of Criminal Procedure and, therefore, that piece of evidence hardly calls for its acceptance. Further we do find that as per the testimony of Nimiya Devi (P.W.7) and Chand Mani Devi (P.W.6), when they heard hulla coming from the community hall which is nearer to their house came along with the deceased they saw appellants assaulting P.W.8 upon which the deceased when tried to save the informant from being assaulted, Baldeo Mahra, as per evidence of P.W.6, pulled down by catching hold of her hair and then the appellant Indradeo Mahra pressed her chest by sitting over it causing fracture of the ribs but P.W.6 never appears to have stated in her 161 statement that it was the appellant Baldeo Mahra, who pulled down the deceased on the ground whereas Nimiya Devi (P.W.7) speaks that it was Indradeo Mahra, who pulled the deceased down on the ground and then smashed her ribs by pressing the chest. One more witness Sachin Bawari (P.W.5) has also testified that on hearing hulla, when he came to community hall, he saw altercation going on in between the parties and in that course, when the deceased came and intervened in the matter, she was pulled down on the ground by Baldeo Mahra and then Indradeo Mahra caused fracture of the bones by pressing the chest on sitting over it. Having examined the testimonies of the witnesses carefully it could be noted significantly that none of the appellants other than Baldeo Mahra and Indradeo Mahra have been alleged to have committed any overt act whatsoever in committing murder of the deceased. Having examined the testimonies of the witnesses carefully it could be noted significantly that none of the appellants other than Baldeo Mahra and Indradeo Mahra have been alleged to have committed any overt act whatsoever in committing murder of the deceased. So far the appellant Baldeo Mahra is concerned, though, he as per the evidence of P.Ws. 8 and 5, pulled down the deceased to the ground but this fact never finds support from the testimony of P.W.4 who was present throughout at the place of occurrence nor it does find support from the evidence of P.W.6 and P.W.7.Under this situation, it would not be safe to accept the testimonies of other witnesses regarding overt act being committed by the appellant Baldeo Mahra. Further we do find that none of the witnesses have testified that the appellants were armed. On the contrary, P.W.8 has testified categorically that all the appellants had come empty handed and when they stopped playing music, one of the appellants Indradeo Mahra asked them to play music but when they did not respond to his command, altercation took place. This fact about the altercation being taken place before the deceased was done to death, has even been accepted by P.W.4 in his cross-examination and thus, all these facts go to establish beyond any semblance of doubt that the appellants were never sharing common intention to commit murder of the deceased. However, we do find that the witnesses are consistent on the point that it was Indradeo Mahra, who pressed the chest violently by sitting over the chest of the deceased causing fracture of the ribs and other bones which fact even gets corroboration from the medical evidence and, as such, there has been no reason to disbelieve the testimonies of the witnesses that it was the Indradeo Mahra, who caused fracture of the ribs of the deceased proving to be fatal. Under these circumstances, the trial court has wrongly come to the conclusion that the appellants other than Indradeo Mahra committed murder of the deceased in furtherance of their common intention but at the same time the trial court is absolutely justified in coming to the conclusion that it was Indradeo Mahra, who caused fracture of the ribs and other bones resulting into death of the deceased. But the question would be as to whether, in the facts and circumstances of the case, the trial court is justified in convicting the appellants under section 302/34 of the Indian Penal Code? We have noticed above that while P.Ws. 4 and 8 along with others were playing music at the community hall, the appellants came over there but they, according to the evidence of P.W.8, were not having any kind of weapons with them and that when they stopped playing music seeing the appellants coming, the appellant Indradeo Mahra insisted on to play music but when they did not play the music, altercation ensued in between the parties which, according to P.W.4, went on for about 2-3 minutes and when the deceased intervened in the matter, the appellants caused fracture of the ribs which fact clearly indicates that whatever happened that happened without premeditation in a sudden fight in the hit of passion and that apart, there appears to be no evidence that the appellant Indradeo Mahra took any undue advantage or acted in a cruel or unusual manner though the appellant Indradeo Mahra by pressing chest of he deceased caused fracture of ribs with the knowledge that it is likely to cause death but without any intention to cause death or caused such bodily injury as is likely to cause death and hence, the case certainly falls within the exception 4 of section 300 of the Indian Penal Code. Hence, he is held guilty for the offence under section 304 Part II of the Indian Penal Code. Thus, the judgment of conviction and order of sentence passed by the trial court as against the appellants other than Indradeo Mahra is set aside. Consequently, they are discharged from the liability of their bail bonds. So far the appellant Indradeo Mahra is concerned, his conviction recorded under section 302/34 of the Indian Penal Code by the trial court is converted under section 304 Part II of the Indian Penal Code. Consequently, the order of sentence of life imprisonment is reduced to the period of custody already undergone. The appellants are directed to be released forthwith, if not wanted in any other case. Thus, with the aforesaid modification in the judgment of conviction and order of sentence, appeal preferred by Indradeo Mahra is dismissed whereas it is allowed so far other appellants are concerned.