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2015 DIGILAW 57 (PAT)

Algu Mahto v. State of Bihar

2015-01-12

AMARESH KUMAR LAL, DHARNIDHAR JHA

body2015
JUDGMENT DHARNIDHAR JHA, J. 1. Appellants Algu Mahto and Kanhai Mahto were tried by the learned Sessions Judge, Gopalganj for charges under Sections 302/34 and 302 IPC besides the one under Section 447 of the Penal Code in Sessions Trial No. 212 of 1990. By judgment dated 14.09.1992 appellant Algu Mahto was held guilty of committing the offence under Section 302/34 and 447 IPC while appellant Kanhai Mahto was convicted of committing offences under Sections 302 and 447 IPC. The two appellants were heard on sentence on 15.09.1992 and they were directed to suffer rigorous imprisonment for life for being convicted under Section 302/34 IPC as in the case of appellant Algu Mahto and under Section 302 IPC as regards appellant Kanhai Mahto. As regards the conviction of the two appellants under Section 447 IPC each of them was directed to suffer rigorous imprisonment for three months. The sentences were directed to run concurrently. The two appellants chose to prefer the present appeal to question the correctness of the findings on their guilt and the appropriateness of the quantum of sentence imposed upon them. 2. P.W.8 Munar Choudhary happened to be the father of the deceased Bhago Chaudhary, referred to as Bhagi Chaudhary by the witnesses. The informant stated that he had got his Sahan land filled with fresh soil. Appellant Algu Mahto came there and started fixing a peg on his land. The informant P.W.8 objected to the fixing of peg by appellant Algu Mahto but he did not stop rather caused the informant Munar Choudhary to leave the place of occurrence. Deceased Bhagi Choudhary, who was sitting at his Darwaja in front of which the incident of fixing the peg was going on, came to appellant Algu Mahto and requested him not to fix the peg. The appellant Algu Mahto was infuriated at the intervention of the deceased Bhagi Choudhary and he asked the appellant Kanhai Mahto to fetch a kudal (spade) from his house to kill the deceased. Appellant Kanhai Mahto, accordingly, fetched a kudal and dealt a blow on the neck of deceased Bhagi Choudhary causing a cut wound to him. Deceased Bhagi Chaudhary fell down on the ground and the informant and others picked him up. He was found bleeding profusely. The accused persons ran away from the place of occurrence leaving the kudal there. Appellant Kanhai Mahto, accordingly, fetched a kudal and dealt a blow on the neck of deceased Bhagi Choudhary causing a cut wound to him. Deceased Bhagi Chaudhary fell down on the ground and the informant and others picked him up. He was found bleeding profusely. The accused persons ran away from the place of occurrence leaving the kudal there. A tyre cart was arranged to bring the deceased to Jadopur and a four-wheeler was arranged again for shifting the deceased to Gopalganj but he died there in Jadopur. The dead body was brought by a jeep to the house of the informant where P.W.9 S.I. Ali Hussain came and recorded the fardbeyan (Ext-4) of P.W.8. It was stated by the informant that the house of the informant Munar Choudhary and that of appellant Algu Mahto were facing each other. The informant had got his sahan filled with fresh soil. Appellant Algu Mahto was claiming that some part of his land stood blended with the filled up portion of the sahan of the informant and, as such, he was fixing the peg. 3. After registering the fardbeyan (Ext-4) of the informant, the investigating officer P.W.9 S.I. Ali Hussain took up the investigation of the case himself and held inquest upon the dead body of the deceased Bhagi Choudhary by preparing the inquest report and its copies by carbon process. The witnesses identified the dead body to that of deceased Bhagi Choudhary. The inquest report was marked as Ext-3. P.W.9, thereafter, sent the dead body for postmortem examination to Gopalganj and also sent the copy of the fardbeyan for institution of the case to Gopalganj police station. P.W.9 also inspected the place of occurrence which was the Sahan situated in front of the house of the informant Munar Choudhary and appellant Algu Mahto. The two sahans were separated by a drain. P.W.9 found fresh soils filled up on sahan on either sides of the drainage. West of the drainage was bigger than the eastern part of the sahan. There were pegs fixed on either sides of the drainage indicating as if cattle were tethered there which was further indicated by the presence of cattle dung and urine there. P.W.9 found blood fallen at a place situated four feet south west of the west northern corner of the sahan and the blood was west of the drainage. There were pegs fixed on either sides of the drainage indicating as if cattle were tethered there which was further indicated by the presence of cattle dung and urine there. P.W.9 found blood fallen at a place situated four feet south west of the west northern corner of the sahan and the blood was west of the drainage. Contiguous south of the place, there was copious blood which was seized vide seizure memo lying near the dead body of the deceased on a cot. There were three pegs fixed in a line on the north- western part of the sahan and at the eastern part of nala, the investigating officer found three pegs one out of which was loosely standing there indicating as if it were the peg which was the cause of dispute. The house and other structures situated east of the drainage was belonging to appellant Algu Mahto and there were separate pegs and structures on that part of the sahan in possession of appellant Algu Mahto indicating that his cattle were teethered east of the drainage. The house of the informant P.W.8 was situated west of the drainage and to further west of the house of the informant (P.W.8) was the Jhopari belonging to appellant Kanhai Mahto. There was a jeep standing there at the place of the occurrence which was bearing registration no.ASJ-4468 which had been used for bringing the dead body. The informant produced the blood stained spade (kudal) which was belonging to appellant Kahani Mahto and further produced a blood stained shawl, blood stained piece of green colour saree and maroon colour blouse. Those were also seized by the I.O by preparing seizure list, marked Ext-5/2. The statements of the informant and other witnesses were recorded by P.W.9. He also obtained the copy of the postmortem examination report and finding that the accused persons had surrendered themselves to the custody of the Court, sent them up for their trial by filing the charge-sheet. 4. The defence of the accused persons, as appears suggested to P.W.8 Munar Chaudhary in paragraph-12, was that in fact grappling ensued between deceased Bhagi Chaudhary and appellant Kanhai Mahto and one of the sons of the informant attempted to give a farsa blow to appellant Kanhai Mahto. But, that incidentally fell on the neck of the deceased, as a result of which he died. But, that incidentally fell on the neck of the deceased, as a result of which he died. It was suggested that appellant Kanhai Mahto did never have a spade and he did not use it. 5. In proof of the charges, the prosecution examined as many as 12 witnesses, out of whom, P.W.1 Gadai @ Gudri Mian, P.W.2 Sohan Mian, P.W.3 Brijhan Chaudhary and P.W.8 Munar Chaudhary, the informant, supported the story as eye witnesses. P.W.6 Motilal Chaudhary, a son of the informant, like, Brijhan Chaudhary was named in the FIR as an eye witness, but he was tendered for cross-examination. P.W.4 Harihar Baitha was the person from whom the tyre-cart had been borrowed for taking the deceased to Jadopur, had stated that he learnt that the deceased was assaulted by spade. P.W.5 Gorakh Chaudhary was a witness to inquest while P.W.7 Ram Prasad Rai was a constable who proved the writings of the FIR (Ext-2). P.W.10 Kunwar Mahto was a witness to the seizure of blood and other articles while P.W.11 Samruddin was the driver of the jeep which was used in bringing the dead body of the deceased to his house, but he was declared hostile. P.W.12 Dr. Baidnath Prasad Sngh had held autopsy on the dead body of deceased Bhagi Chaudhary and had issued Ext-6, the postmortem examination report. 6. Considering the evidence in the light of the defence of the accused, the learned trial Judge passed the impugned judgment and order of sentence upon them. 7. Sri Neeraj Kumar @ Sanidh, learned Amicus Curiae took us through the evidence of the witnesses and submitted that the initial prosecution story was that appellant Algu Mahto came to the sahan of the informant and started fixing a peg which was objected to, firstly, by the informant and thereafter by his son, the deceased. But, what appears from the evidence of P.Ws. 1, 2, 3 and 8 was that that part of the prosecution story regarding genesis of the occurrence was given up and a new story was set up when the witnesses stated that appellant Algu Choudhary uprooted a peg which was already fixed by appellant Algu Mahto which was objected to by the deceased which resulted in a scuffle between appellant Algu Mahto and deceased Bhagi Choudhary and lastly, that ended in the incident. Submission was that the genesis of the occurrence was not established and that created a big void in the prosecution case making it liable to be rejected. It was contended that the witnesses might have consistently supported the manner of occurrence that it was appellant Kanhai Mahto who had given the fatal blow, but it may not be a case under Section 302 IPC rather the offence committed by appellant Kanhai Mahto might be one under Section 304 part-II of the IPC. 8. It appears consistently stated by all the witnesses including the informant that there was no enmity between the informant Munar Chaudhary from before the incident. In fact, there had never been any dispute even for fixing the peg prior to the date of occurrence. P.W.1 in paragraph-5 and P.W.3 in paragraph-5 as also P.W.8 have consistently stated the above fact that there had not been any quarrel for any reason and especially for fixing the peg in between the parties. Thus, what appears to us is that the relationship between the sides was if not very cordial, it was not at all sour or inimical. The evidence of the investigating officer who had inspected the place of occurrence, which we have already referred to, indicated as if the informant and appellant Algu Mahto both had their part of the sahan filled with fresh soil. Both the sides had their separate establishments, like, a house and other things including the cattle sheds and the investigating officer had found it quite demarcated on account of drainage running between the land of the two parties. The investigating officer found that one of the three pegs which were on the northern side of the informant was found loosely fixed indicating as if it had been disturbed and that any attempt was made either to uproot or to re-fix it. The genesis which was initially stated by the informant was that appellant Algu Mahto had come and started fixing a peg over the land in possession of the informant claiming that some part of his land was also blended with the part of the land which had been filled up with soil by the informant. That part of the story was given up. We do not have any hesitation in noting that the witnesses, like, P.Ws. That part of the story was given up. We do not have any hesitation in noting that the witnesses, like, P.Ws. 1, 2, 3 and 8 who came to support the prosecution story were pointing out that appellant Algu Mahto came and uprooted one of the pegs fixed by the informant and the same was being re-fixed by the deceased which ultimately resulted into the occurrence. Thus, the same shifting in the prosecution story regarding the genesis of occurrence is there, but in the background of no enmity between the parties, we do not see any particular reason to reject the evidence of three eye witnesses as regards the manner of occurrence of participation of the accused persons. There is no doubt from the evidence of the witnesses as also from that of the investigating officer that a single peg out of three which were lying on the side of the land in possession of the informant which is the bone of contention, was found loosely standing there suggesting as if it had either been attempted to be extricated or it had been put afresh in its socket. Thus, the single peg could be the genesis of the occurrence. 9. The evidence which was given by the witnesses appears more consistent with the investigating officer that appellant Algu Mahto came and uprooted a peg which was re-fixed by the deceased, because the evidence of the three witnesses and that of the investigating officer does not indicate that any uprooted peg was lying there. The witnesses stated that after the peg had been uprooted by appellant Algu Mahto, the deceased put it in its socket and that resulted in some scuffle between the appellant Algu Mahto and deceased Bhagi Choudhary. The investigating officer also found the peg loosely standing in the socket so as to creating a tilt in the probability as regards the question as to whether the peg was fixed or it was uprooted appears supporting the later part of the story that it, in fact, had been uprooted and subsequently re-fixed in the socket. The prosecution evidence with a very little of shift on the above point, could not merit rejection of the prosecution evidence in its entirety. 10. The prosecution evidence with a very little of shift on the above point, could not merit rejection of the prosecution evidence in its entirety. 10. So far as the manner of occurrence is concerned, the witnesses are consistent that as soon as the quarrel ensued between the deceased Bhagi Choudhary and appellant Algu Mahto, appellant Algu Mahto ordered appellant Kanhai Mahto to fetch the kudal from his house and accordingly, appellant Kanhai Mahto fetched a kudal from his house and gave a blow on the left side of the neck of the deceased. The cross-examination part of the occurrence indicates that appellant Kanhai Mahto at the time of giving the blow could be either on the back or towards north of the deceased Bhagi Choudhary who was facing west. This positioning of the deceased and the appellant clearly corroborates the infliction of the injury as regards the manner of giving the blow. A blow wielded from the left side of the deceased Bhagi Choudhary, who was facing west to fructify only when the appellant had hit him from his back or completely from the left side of him. That is the evidence of P.W.12 Dr. Baidhnath Prasad Singh also who had found an injury of the dimension of 5” x 3” x 7” on the left side of the neck of the deceased. Thus, the evidence on manner of occurrence was not only consistent as regards the oral evidence but it gets support from the medical evidence also. 11. The doctor’s evidence further indicated that the injury had cut all the major vessels of the neck on its left side and the cervical vertebra was also cut. All muscles on the left side of the neck were also cut. In the opinion of P.W.12, the injury was caused by some sharp cutting weapon and the death resulted due to shock and haemorrhage, because of the injury was sufficient to cause death in the ordinary course of nature. 12. Sri Sanidh was submitting that it could be the heat of passion which had generated at the scene of occurrence to give a sudden provocation to the accused to give a blow with the spade and, as such, the facts of the case may not constitute an offence under Section 304 IPC. 12. Sri Sanidh was submitting that it could be the heat of passion which had generated at the scene of occurrence to give a sudden provocation to the accused to give a blow with the spade and, as such, the facts of the case may not constitute an offence under Section 304 IPC. A submission like the above was considered by the Supreme Court in the case of Jagrup Singh vs. State of Haryana, AIR 1981 SC 1552 . Paragraph-6 of the report is relevant to the submission of Sri Sanidh and we want ourselves to be profited by extracting that part of the judgment which runs as under:- “6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in the death must always necessarily reduce the offence to culpable homicide not accounting to murder punishable under S. 304. Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the Victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death and the case may be covered by either Clause Firstly or Clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.” 13. Thus, what appears very vividly pointed out, a solitary blow even by a lathi if it gives ample indication of the intention behind that blow of killing is also an act of committing an offence of murder. It is true that appellant Kanhai Mahto had given a solitary blow but as was pointed out by the Apex Court in Jagroop Singh (supra), the blow was given by a weapon as a kudal by its sharp cutting edge, on as vulnerable organ as the neck of the deceased. It is true that appellant Kanhai Mahto had given a solitary blow but as was pointed out by the Apex Court in Jagroop Singh (supra), the blow was given by a weapon as a kudal by its sharp cutting edge, on as vulnerable organ as the neck of the deceased. The force with which the blow was given could be gathered from the fact that it had left a cut injury of the size 5” x 3” x 7” causing not only the cutting of the important vessels of the neck on its left side but the vertebra also. It was not a blow which was given on the spur of moment rather on being asked to fetch the kudal by appellant Algu Mahto appellant Kanhai Mahto rushed to his house and came out with the weapon. The circumstances leave no manner of doubt that it was an intended act of committing murder of the deceased by giving the fatal blow. 14. On reappraisal of the evidence, we find that the judgment of conviction and order of sentence, passed against the appellants were lawfully passed and this Court does not have any reason to interfere with it. 15. In the result, the appeal fails and the same is dismissed. 16. The two appellants are on bail. Their bail bonds are cancelled. Let them surrender before the court below so as to serving out the sentences. 17. Sri Neeraj Kumar @ Sanidh has assisted the Court as Amicus Curiae and the Court desires that he be paid one fee of hearing by the Patna High Court Legal Services Committee and for that purpose let a copy of the first and last pages of this judgment be made over to Sri Neeraj Kumar @ Sanidh, an Advocate of this Court appearing in this matter as Amicus Curiae. Appeal dismissed.