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2010 DIGILAW 100 (JHR)

Etwa Mahli v. State of Bihar

2010-01-19

PRADEEP KUMAR

body2010
Judgment Heard the learned counsel for the appellants and the learned counsel for the State. 2. The instant appeal is directed against the judgment at conviction dated 1.2.2000 and order of sentence dated 7.2.2000 respectively passed in S.T. No. 403 of 1997 by Shri Prabhat Kumar Jha Vllth, Additional Judicial Commissioner, Ranchi, by which judgment he found the appellant guilty under Sections 326 and 307 of the I.P.C. and sentenced him to undergo R.1. for 10 years for the said offences. 3. It is submitted by learned counsel for the appellant that it appears from the F.I.R., evidences and witnesses, that there was no motive of the accused/appellant Etwa Mahli to commit murder of the injured Tijja Mahali and it is a case where he has assaulted his neighbour, Tijja Mahali causing injury on his head. As such, conviction' under Section 307 of the Indian Penal Code is bad and not sustainable. 4. On the other hand, learned counsel for the State supported the prosecution case and stated that it appears from the evidence of the witnesses, the accused assaulted on the head of injured Tijja Mahali by repeated blow with intention to commit the murder, as such, he has rightly been convicted. 5. After hearing both the parties and going through the records, I find that the prosecution case was started on the basis of fardbayan given by the P.W. 1, Kalendra Kumar Mahli, informant/son of the injured, stating therein that on 20.2.1996 at 6.00 A.M. in the morning, his father was sweeping courtyard in front of his house door and he was standing near his door. In the meantime Etwa Mahli came with Tangi and assaulted 'his father's head 3 to 4 times giving repeated blow of Tangi with an intention to kill him. His father became injured and fell down on the ground and became unconscious. Thereafter, Etwa Mahli fled away towards his house. He went there and with the help of other, he took his father to R.M.C.H. for treatment. He also stated that there is no family enmity between Etwa Mahli and his family, but he (Etwa Mahli) used to threat his father to commit murder when he was drunken. 6. On the basis of the said ferdbeyan, police registered a case under Sections 324, 307 and 448 of the Indian Penal Code and after investigation, police submitted charge-sheet in the case. 6. On the basis of the said ferdbeyan, police registered a case under Sections 324, 307 and 448 of the Indian Penal Code and after investigation, police submitted charge-sheet in the case. Since, the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and subsequently, the case was tried by learned Vllth, Additional Judicial Commissioner, Ranchi, who found the appellant guilty under Sections 326 and 307 of the Indian Penal Code and sentenced him as aforesaid. 7. It appears that in the course of the trial, the prosecution has examined as many as seven witnesses:- P.W. 1, Kalendra Kumar Mahli, is the informant. P.W. 2, Sita Devi, wife of the injured, Tejja Mahli. P. W. 3, Sudeshwar Mahli. P.W. 4, Sukra Mahli. P.W. 5, Tejja Mahli, is the injured. P.W. 6, Ram Naresh Prasad Yadav, who is the I.O. of the case. P.W. 7, Dr. Girish Kumar Sharan, is a doctor, who had proved the injury report. P.W. 1, Kalendra Kumar Mahli, informant/son of the injured, stated that on 20.2.1996 at 6.00 A.M. in the morning, his father was sweeping courtyard in front of his house and he was standing on the door. Whereupon Etwa Mahli came with Tangi and assaulted his father on his head 3 to 4 times repeatedly by Tangi with an intention to kill him. His father became injured and fell down on the ground and became unconscious. Thereafter, Etwa Mahli fled away towards his house. He went there and with the help of other, he took his father to R.M.C.H. for treatment. On the same day, the police officer came in R.M.C.H. and recorded his statement on which he put his signature at Exhibit-1. He also stated that after recording his statement, the police officer went to the house of Etwa Mahli and seized a blood stained Tangi and prepared seizure list on which he also put his signature which is marked as Exhibit-2. In his cross-examination he stated that Investigating Officer reached R.M.C.H. at 12.00 P.M., thereafter, he also came to the house of the accused with the police officer. At about 1.30 P.M., they reached there and seized blood stained tangi from the house of the accused, which was produced by his daughter and at that time Sukra Mahli was present. In his cross-examination he stated that Investigating Officer reached R.M.C.H. at 12.00 P.M., thereafter, he also came to the house of the accused with the police officer. At about 1.30 P.M., they reached there and seized blood stained tangi from the house of the accused, which was produced by his daughter and at that time Sukra Mahli was present. He further stated that no family enmity between Etwa Mahli and his family, but he (Etwa Mahli) used to threat his father to commit murder when he was in drunken condition. He also stated that at the time of occurrence his mother (P.W. 2) was breaking wood near the door. He, his mother, Sukra Mahli and his brother-in-law saw the occurrence and his father got injury on head and eye and one eye of his father was damaged completely. P.W. 2 Sita Devi, wife of the injured,' has also supported the prosecution case and stated that on tile date of occurrence she was breaking wood near the door and her son was standing on the door. Suddenly, the accused, Etwa Mahli, came there with Tangi and assaulted by tangi thrice on the head of her husband and he fell down and became unconscious. Thereafter, she took her husband to R.M.C.H. on Tempo, where he was treated. After some time, police came to the hospital and recorded the statement of her son. She also stated that her husband was treated in R.M.C.H. for a month, but he lost one eye due to injury. She also identified the accused in the Court. In her cross-examination, she stated that her husband received two blows on head and eye and third blow missed and did not hit her husband. She also stated that there was no previous enmity between the accused and her husband. P.W. 3, Sudeshwar Mahli has also supported the prosecution case and stated that on the date of occurrence, injured was sweeping his courtyard. At that time accused came there and assaulted on the head of injured, Tejja Mahli by tangi with repeated blow and he fell down on the ground and became unconscious. Thereafter, he was taken to the R.M.C.H. for treatment. He also stated that tangi was recovered from the house of the accused from his presence to prove his signature on the seizure list of the tangi, which is as Ext.-2/1. Thereafter, he was taken to the R.M.C.H. for treatment. He also stated that tangi was recovered from the house of the accused from his presence to prove his signature on the seizure list of the tangi, which is as Ext.-2/1. P.W. 4, Sukra Mahli is also supported the prosecution case. P.W. 7, Dr. Girish Kumar Sharan, is a doctor, who examined the injured on 20.2.1996 and found that:(1) Lacerated injury over right frontal region of skull just above the right upper eye-brow about 3" x 1" with brain matter coming out from the wound operative note:-(i) Right front temporal decompression done, (ii) Multiple bone fragments were found imbeded in the orbit of right side and right frontal region, (iii) Right optic nerve was seen in two pieces, (iv) Sub- dural haemotoma over right frontal region evacuated. Mark of identification-Operative mark over right frontal region. Nature of injury-Grievous. Nature of weapon-Hard and blunt substance. (2) The aforesaid injury may be caused by any hard and blunt substance such as back portion by Tangi. In his cross-examination he proved the injury report and stated that the injury caused to the injured might be by sharp cutting weapon because the injury by sharp cutting weapon repeatedly on the same place has become lacerated wound. P.W. 6, Ram Naresh Prasad Yadav, who is the I.O. of the case is also supported the prosecution case and proved the formal F.I.R. and seizure list. Doctor also proved the discharge slip. 8. Thus, from the evidence, it appears that the accused came there without any motive and subsequently, caused head injury repeatedly on the head of the injured and caused grievous injury on his head. There is evidence of the doctor that the injury although grievous in nature, but was sufficient to cause death. Moreover, except the evidence of P.W. 1, informant, no body had stated that the injury were caused by the accused with intention to cause his murder. It seems that under some misconception the accused suddenly came with tangi given 23 blows on the head and ran away. The accused had no intention to commit murder and it is difficult to say that injured might have died by the said injury. 9. It seems that under some misconception the accused suddenly came with tangi given 23 blows on the head and ran away. The accused had no intention to commit murder and it is difficult to say that injured might have died by the said injury. 9. In that view of the matter, in absence of any motive for such assault, since, there was no previous enmity between the accused and the injured and there was no family dispute, the conviction under Section 307 of the Indian Penal Code is bad in law and the same is set aside and the appellant convicted under Section 326 of the Indian Penal Code and his conviction under Section 326 of the Indian Penal Code is confirmed. On perusal of the record, it appears that appellant has remained in custody for approximately one year during trial and appeal. In that view of the matter, he is sentenced to undergo the period which he had already undergone. 10. Accordingly, the appeal is allowed in part with alteration in the order of sentence. The appellant is on ban, he is released from the bondage of his bail bond.