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2010 DIGILAW 329 (JHR)

Sheopujan Mahra v. State of Jharkhand

2010-03-15

PRADEEP KUMAR

body2010
JUDGMENT (1) HEARD the learned counsel for the appellants and learned counsel for the State. (2) THE instant appeal is directed against the judgment of conviction dated 26-2-2002 and order of sentence dated 27-2-2002 passed by Sri Rajeev Kumar, 2nd Additional Sessions Judge, Garhwa in Sessions Trial No. 393 of 1996 by which judgment the appellant namely Sheopujan Mahra and Kailash Mahra were found guilty for the offence u/S. 304/34 and sentenced to undergo R.I. for 7 years. Further, the rest of the appellants namely Kapildeo Mahra, Amerika Mahra, Deoki Bhuiyan, Dulari Devi and Antiya Devi were found guilty for the offence u/S. 324/ 34 of the I.P.C and sentenced to undergo R.I. for 3 years. It is submitted by learned counsel for the appellants that they had no intention to commit the death of the deceased, Hirdyanand Ojha and they have also lodged a counter case claiming that they were in possession of the land and since the deceased, Hirdyanand Ojha and the informant and others were obstructing the cutting of Arhar crop, they only assaulted the informant party to exert their right to private defence and as such the conviction of the appellants u/s 304/ 34 I.P.C is bad in law and fit to be set aside. (3) ON the other hand, learned counsel for the State has opposed the prayer and submitted that the informant had no weapon in their hand and only asked them not to cut the crop which was sown by them, but it appears that the accused-appellants, who had came variously armed with tangi, lathi and garasha assaulted the deceased to death and also caused injury to the informant and witness, Deokant Ojha and Nabi Ansaril and as such the appellants have been rightly convicted and the impugned judgment does not need any interference from this Court. (4) AFTER hearing both the parties and after going through the evidences on record, I find that the prosecution case was started on the basis of the fardbeyan given by the informant, Dayanand Ojha on 25-3-1996 at 16.30 hrs. stating therein that on the same day about 8 a.m. in the morning he came to know that some people are cutting the Arhar sown by them in village Tisartetuka on their rayati land. stating therein that on the same day about 8 a.m. in the morning he came to know that some people are cutting the Arhar sown by them in village Tisartetuka on their rayati land. Then he along with his elder brother, Hridyanand Ojha and nephew Deokant Ojha went to the place of occurrence and found that the accused Sheopujan Mahra, Kailash Mahra, Kapildeo Mahra, Amerika Mahra, Dulari Devi and Antia Devi along with one Dicky Bhuiyan are cutting crops. Then they made objection, whereupon, they left the place of occurrence. The informant stayed at the place of occurrence, since, large portion of the crop was already cut. But, after sometime all the accused persons returned variously armed with lathi, tangi and pharsa. They came and immediately Sheopujan Mahra and Kailash Mahra gave a tangi blow on the person of his elder brother, Hridyanand Ojha causing serious injury. When the informant objected, then Kapil Mahra with tangi, Antia Devi with tangi assaulted him on his back. Thereafter, Laltia Devi also assaulted him with tangi causing injury on his small finger of right hand. The started running away, whereupon other accused chased them with lathi and assaulted. Their brother, Hridyanand Ojha fell down, who was then assaulted by all the accused persons with lathi causing his death. They ran towards their house and thereafter, again with the help of the other persons went to the place of occurrence and brought the dead body of their elder brother. On the basis of the said F.I.R, police registered a case u/S. 147,148, 149,342,302, 323,324,307 of the I.P.C against the accused and after investigation submitted charge sheet. Since, the case was exclusively triable by the Court of Session, Learned C.J.M. committed the case to the Court of Sessions Judge and finally the case was tried by 2nd Additional Sessions Judge, Garhwa who found the appellants guilty and convicted and sentenced them as aforesaid. (5) IT appears that in course of examination prosecution has examined 6 witnesses to prove its case. P. W. 1 is Srikant Ojha. P. W. 2 is Deo Kant Ojha, nephew of the informant. P. W. 3 is Nabi Ansari. P. W. 4 is Dayanand Ojha, informant of the case. P. W. 5 is Dr. Ravishankar Prasad, who examined the informant. P. W. 6 is Dr. P. W. 1 is Srikant Ojha. P. W. 2 is Deo Kant Ojha, nephew of the informant. P. W. 3 is Nabi Ansari. P. W. 4 is Dayanand Ojha, informant of the case. P. W. 5 is Dr. Ravishankar Prasad, who examined the informant. P. W. 6 is Dr. A. K. Jha, who conducted the post mortem examination on the dead body of the deceased, Hridyanand Ojha. (6) P. W. 1, Srikant Ojha is a hearsay witness who has stated that he was at his house when his uncle, Dayanand Ojha and his younger brother Deokant Ojha came and informed him that the accused persons had assaulted them and they have caused the death of informant's elder brother, Hridyanand Ojha. Then he along with others went to the place of occurrence and brought the dead body of the deceased, Hridyanand Ojha. P. W. 2, Deokant Ojha has supported the prosecution case and stated that he along with his uncle had gone to the place of occurrence where the accused persons were cutting Arhar crops and when they objected there were some verbal argument after which they left the place. But, after sometime the accused again came variously armed with tangi, garasha and lathi. Suddenly, Seopujan Mahra and Kailash Mahra with tangi assaulted Hridyanand Ojha causing serious injury. When the informant, Dayanand Ojha went to intervene, then he was also assaulted with tangi on his back. Other accused also assaulted them with lathi, then he started running away then all the accused chased them and caused injury to them. While running, deceased, Hridyanand Ojha fell down and all the accused assaulted him causing his death. He has stated that he came to his house and informed his brother and other villagers, then they went to brought the dead body of the deceased. He proved his signature on the fardbeyan and also proved the handwriting of the Investigating Officer marked as Ext. 1. He has identified the accused persons in the Court. In his cross-examination in para 8 he has stated that the place of occurrence is khata No. 24, plot No. 443 and area 24 delimit belongs to them. He also stated in cross-examination that they had grown Arhar crop in the same. (7) P. W. 3, Nabi Ansari has stated that he came on hulla and saw that the deceased, Hridyanand Ojha lying dead at the place of occurrence. He also stated in cross-examination that they had grown Arhar crop in the same. (7) P. W. 3, Nabi Ansari has stated that he came on hulla and saw that the deceased, Hridyanand Ojha lying dead at the place of occurrence. (8) P. W. 4, Dayanand Ojha is the informant of the case and fully supported the prosecution case. He has stated that on the date of occurrence i.e. on 25-3-1996 at about 8 a.m. when he heard that some persons had gathered on their rayati land and cutting Arhar crops sown by them, he along with elder brother, Hridyanand Ojha and nephew Deokant Ojha went to the place of occurrence and found that the accused- appellants were cutting Arhar crops. On their objection, some verbal argument took place and thereafter, they left the place of occurrence. But, after one hour appellant, Sheopujan Mahra and Kailash Mahra came and assaulted the deceased, Hridyanand causing serious injury and when he objected then he was assaulted by them with tangi. Thereafter, all the appellants started assaulting them with their respective weapons. While running away, deceased fell down and all of them assaulted him causing his death. He has stated that he came to his house and informed his brother and family members and with villagers he went to the place of occurrence and brought the dead body of his brother. In cross-examination he has stated that the place of occurrence is khata No. 24, plot 443 area 24 decimil and gave 'Chohaddi' of the same belongs to him. He has further stated that they had no weapon in their hands when they were assaulted by the accused persons. He also stated that accused persons gave about 16-17 injuries on the body of the deceased. P. W. 5, Dr. Ravi Shankar Prasad, who has examined the informant on the same day i.e. on 25-3-1996 found (1) incised injury 2"x 1/3" x skin deep with tail of wound downwards involving skin only 1 1/2". (2) Incised wound 1/2" x 1/4" x skin deep over first interphallenpeal joint of right little finger over ventral aspect. (3) Bruise 3"x 11/2" over ulnar side of middle of right forearm. All the injuries were simple in nature. Injury No. 1 and 2 were caused by sharp cutting weapon and injury No. 3 caused by hard and blunt substance. (9) P. W. 6. Dr. (3) Bruise 3"x 11/2" over ulnar side of middle of right forearm. All the injuries were simple in nature. Injury No. 1 and 2 were caused by sharp cutting weapon and injury No. 3 caused by hard and blunt substance. (9) P. W. 6. Dr. A. K, Jha, who conducted the post mortem examination on the dead body of the deceased, Hridyanand Ojha has found near about 17 injuries on the person of the deceased, but in his opinion the first injury -incised wound 3"x l/2"x Bone deep over the right part of occipital region of scalp was the fatal injury causing death. The deceased has also abrasion of 4 x 1/2" on the right scapular region. (10) THUS, after going through the evidences on the record, I find that although there is case and counter case, in considering the counter case, the trial Court came to a finding that the accused, who were cutting crops claimed to be their own only wanted to remove the crop by force and hence, considering the case and evidence and medical evidence that two fatal injuries on the head of the deceased given by Sheopujan Mahra and Kailash Mahra, found them guilty u/S. 304/34 of the I.P.C. and sentenced them to undergo R.I. for 7 years. In my considered opinion, the conviction of these two appellants requires no interference by this Court. So far as the other male appellants namely Kapildeo Mahra, Amerika Mahra alias Ambika Mahra, Deoki Bhuiyan are concerned, they have also assaulted the deceased with their respective weapon causing near about 4/6 injuries on the deceased and also injury on the person of the informant and they have rightly been convicted u/S. 324/34 of the I.P.C. (11) SO far as female appellants namely Antiya Devi aged about 57 years, Dulari Devi aged about 32 years are concerned, as per the evidences of the witnesses they had only lathi in their hands and their main aim was to cut the crops and it is not likely that they would have actually participated in the assault. Even, if they had assaulted in the beginning, it is not likely that they had chased the informant and victim and when the victim-deceased fell down, they would have also assaulted him. In that view of the matter, their conviction u/S. 324/34 of the I.P.C. is altered to Section 323/34 of the I.RC. Even, if they had assaulted in the beginning, it is not likely that they had chased the informant and victim and when the victim-deceased fell down, they would have also assaulted him. In that view of the matter, their conviction u/S. 324/34 of the I.P.C. is altered to Section 323/34 of the I.RC. It is stated by learned counsel for the appellants that they had remained in .custody; for about 5 months before commitment of the case and sometime after the commitment of the case. In that view of the matter, they are sentenced to undergo the period undergone by them during investigation and trial. The female appellants, Dulari Devi and Antiya Devi are on bail. They are discharged from the liability of their bail bond. (12) LEARNED counsel for the appellants has submitted that the two male appellants namely Kapildeo Mahra aged about 52 years at the time of conviction and Deoki Bhuiyan aged about 53 years at the time of conviction and hence, after 8 years, they are aged about 60 years and 61 years respectively and hence lenient view may be taken against them. It appears that the aforesaid two appellants are aged about 60 and 61 years have been found guilty u/S. 324/34 of the I.P.C. Considering their old age, appellants namely Kapildeo Mahra and Deoki Mahra are sentenced to pay a fine of Rs. 5000/- each and period already undergone by them during investigation and trial. In the event of the fine being paid, out of the aforesaid Rs. 10000/-, Rs. 8000/- must be paid to the injured Informant, Dayanand Ojha as compensation and rest will be deposited at the treasury and in default of the same to undergo S.I. for 2 years. (13) IN the result, with the alteration in the sentence, the appeal is dismissed. Appellants Sheopujan Mahra, Kailash Mahra, America Mahra, Kapildeo Mahra, Deoki Mahra are on bail. Their bail bonds are cancelled. Learned Trial Court is directed to issue warrant of arrest against them for serving out the sentence. Appeal dismissed.