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2015 DIGILAW 826 (JHR)

Binod Mahli v. State of Jharkhand

2015-07-21

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : By Court :- This appeal is directed against the judgment of conviction and the order of sentence dated 21st June, 2004 passed by the then learned Judicial Commissioner, Ranchi in Sessions Trial No.470 of 2003, whereby and whereunder the court, having found the appellant guilty for committing murder of the deceased-Durga Charan Mahli, convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life. 2. The case of the prosecution, as has been projected in the fardbeyan is that on 21.03.2003 at about 8.15 A.M., Lalita Devi-mother of the deceased served breakfast to her son Durga Charan Mahli as he had to go to the market. Meanwhile, one Tractor came near the house of Lakhi Ram Mahli, upon which the deceased went there. As soon as the deceased came over there, the appellant Binod Mahli, who was having Tangi with him, gave a blow upon the deceased, as a result of which, he sustained injury and then in order to save himself he fled from there but fell down in the well. The appellant- Binod Mahli also jumped down in the well. Meanwhile, people, who were present over there, started raising alarm. Upon which, several persons assembled there. One of them, namely, Koilu Manjhi (P.W.4) brought a rope and put it inside the well so that the deceased, after holding it, may come out of the well but the appellant did not allow the deceased to hold the rope. Meanwhile, Khargu Karmali (P.W.3) came down to the well with the help of that rope to save the deceased, but the appellant did not allow him to pull the deceased up, rather the appellant threatened him to kill and hence, he came out of the well. Thereupon the appellant killed the deceased by drowning him in the water. 3. On the same day, Officer-in-Charge of Silli Police Station, Binod Prasad Mandal (P.W.15), when received such information, he made entry in the station diary and then proceeded to the place of occurrence. Upon reaching to the place of occurrence, P.W.15 recorded the fardbeyan of the informant (P.W.1)-Dilip Mahli. Upon which, a formal FIR (Ext.4) was drawn. P.W.15 with the help of the villagers took out the dead body of the deceased and also the appellant from the well but by that time, the deceased had already died. Upon reaching to the place of occurrence, P.W.15 recorded the fardbeyan of the informant (P.W.1)-Dilip Mahli. Upon which, a formal FIR (Ext.4) was drawn. P.W.15 with the help of the villagers took out the dead body of the deceased and also the appellant from the well but by that time, the deceased had already died. Accordingly, P.W.15- Binod Prasad Mandal, held inquest on the dead body of the deceased and prepared an inquest report (Ext.5). Thereupon, the dead body was sent for postmortem examination, which was conducted by Dr. A.K. Choudhary (P.W.14), who on holding autopsy, did find the following injuries on the person of the deceased:- I. Abrasions:- (i) 5 x 1/4 cm x 2 x1/4 cm on top of left shoulder. (ii) 1 x 1 cm & 1x1/2 cm on the back of right elbow. II. Lacerated wound:- (i) 2 x 1/2 cm x soft tissue over. (ii) 2 x1 cm x soft tissue on left side of forehead. Internal:- Both the lungs were found voluminous, frothy fluid comes out on cutting the respiratory passage. The stomach contains watery fluid 4.50 ml. Internal organs were congested. The Doctor issued post mortem examination report (Ext.2) with an opinion that all the injuries were antemortem, caused by hard and blunt substance and were not sufficient to cause death in ordinary course of nature but death was due to drowning. 4. Meanwhile, the I.O. recorded the statements of the witnesses. On completion of the investigation, when the charge-sheet was submitted, cognizance of the offence was taken against the appellant. 5. Upon case being committed to the court of Sessions, the appellant was put on trial. During which, the prosecution, in order to bring the charge home, examined as many as 15 (fifteen) witnesses. Of them, P.W.1-Dilip Kumar Mahli (informant) did depose that on hearing Hulla, when he came near the well, he found his brother Durga Charan Mahli and the appellant inside the well. In order to save Durga Charan Mahli, P.W.-4 Koilu Manjhi brought a rope and put it inside the well. The deceased tried to hold it out but the appellant did not allow to catch that rope. In order to save Durga Charan Mahli, P.W.-4 Koilu Manjhi brought a rope and put it inside the well. The deceased tried to hold it out but the appellant did not allow to catch that rope. With the help of the said rope, Khargu Karmali (P.W.3), came down to well and tried to pull the deceased up but again the appellant did not allow him to rescue the deceased and then the appellant killed the deceased by drowning him in the water. Similar is the testimony of P.W.2-Shambhu Karmali, P.W.3-Khargu Karmali and P.W.-4-Koilu Manjhi, who have supported the version of the P.Ws. 1 and 2 to the effect that when Koilu Manjhi (P.W.4) put the rope inside the well with a view to pull the deceased up, the appellant did not allow the deceased to catch that rope. Similarly, P.W.3-Khargu Karmali did depose that he with the help of rope came down in the well but he was not allowed by the appellant to pull the deceased up. Suresh Mahto (P.W 5) and Gahnu Karmali (P.W.6) have also deposed to that effect. Apart from that, they did also depose that when the deceased came near the house of Sheetal Mahli, the appellant who was having Farsa with him gave a blow upon the deceased, who, in order to save himself fled from there and fell in the well. P.W.7-Pran Manjhi, P.W.8-Samru Manjhi and P.W.9-Sindhu Manjhi have testified that when they assembled near the well after hearing Hulla, they did find that P.W.4-Koilu Manjhi brought a rope and put it inside the well so that he and others can pull the deceased up but the appellant did not allow the deceased to catch the rope and that when P.W.-3 Khargu Karmali got down in side the well with the help of the rope to save the deceased, the appellant again did not allow him to rescue the deceased. P.W.10-Uddhav Manjhi , P.W.-11 Balku Manjhi and P.W.12-Sheetal Mahli have been tendered. 6. On closure of the prosecution case, when the appellant was questioned over the incriminating materials put to him under Section 313 of Cr.P.C., the appellant denied. 7. P.W.10-Uddhav Manjhi , P.W.-11 Balku Manjhi and P.W.12-Sheetal Mahli have been tendered. 6. On closure of the prosecution case, when the appellant was questioned over the incriminating materials put to him under Section 313 of Cr.P.C., the appellant denied. 7. Thereupon, the court, having placed its implicit reliance on the testimonies of the witnesses as aforesaid, did find the appellant guilty for committing murder of Durga Charan Mahli and hence recorded the judgment of conviction and the order of sentence, as aforesaid, which is under challenge. 8. Mr. Dilip Kr. Prasad, learned counsel appearing for the appellant submits that though the appellant is said to have assaulted the deceased first by giving Farsa blow and then killed him by drowning him in the well but first part of the accusation relating to deceased being assaulted by Farsa, does not get corroboration from medical evidence as the Doctor did not find any injury being caused by Farsa and, thereby, the prosecution can be said to have failed to prove its case but the court below did not take into account this aspect of the matter in right perspective, and hence, the court can be said to have committed illegality in recording the judgment of conviction and the order of sentence. 9. Further it was submitted that the informant though has claimed himself to be the eye witness but from the testimony, as has been testified in the cross -examination, it would appear that he had reached over the place of occurrence after the deceased was done to death and that there does not appear to be any motive on the part of the appellant for killing the deceased and, thereby, it is quite probable that when the appellant saw the deceased, felling in a well, he also jumped down in order to rescue him but he did not succeed, but the appellant was falsely implicated in this case by putting allegation that the appellant killed the deceased and under the circumstances, the appellant deserves to be acquitted from the charge. 10. As against this, Mr. 10. As against this, Mr. Vijay Kumar Gupta, learned counsel appearing for the State submits that though the appellant has taken plea that the appellant jumped down in the well to rescue the deceased but from the evidences appearing in the case, it would appear that the appellant had had intention to kill the deceased and, therefore, he did not allow the deceased to catch hold of the rope which was put in to rescue and even did not allow P.W.-3- Khargu Karmali to rescue the deceased when he had come inside the well with the help of the rope and under the circumstances, the trial court is absolutely justified in recording the judgment of the conviction and the order of sentence, which never warrants to be interfered with by this Court. 11. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that it is the case of the prosecution as has been testified by the P.W.5, P.W.6 as well as P.W-13-mother of the deceased that while the deceased came near the house of Sheetal Mahli, the appellant who was there from before gave a Farsa blow on the deceased, causing injury and hence, the deceased made an attempt to flee from there but in that course he fell down in the well. Thereupon, the appellant also jumped down in that well. On seeing this, P.W.13-mother of the deceased, who washing utensil in the well, raised alarm upon which number of persons including witnesses Nos.1 to 9 assembled there. Of them P.W.4-Koilu Manjhi brought a rope and put it inside the well with a view to pull the deceased up but the appellant did not allow the deceased to catch the rope. Meanwhile, P.W.-3-Khargu Karmali came down in the well with the help of rope in order to rescue the deceased but again the appellant did not allow the deceased to be rescued by Khargu Karmali-P.W.3. This part of the prosecution of making an attempt to rescue the deceased by P.W.3 and P.W.4 has been supported by the witnesses P.Ws 7, 8 and 9. This part of the prosecution of making an attempt to rescue the deceased by P.W.3 and P.W.4 has been supported by the witnesses P.Ws 7, 8 and 9. So far other part of the testimonies of the witnesses relating to the appellant giving Farsa blow upon the deceased is concerned, that has been supported by P.Ws 5, 6 and by P.W.1, but P.W.1, in view of the testimony, as elicited in the cross-examination that he reached at the place of occurrence too but by the time, the deceased had died, does not appear to be the person, who saw the appellant giving blow of Farsa. However, the submission, which has been advanced on behalf of the appellant is that since medical evidence does not support ocular evidence relating to the deceased being assaulted by Farsa, that evidence of the witnesses in its entirety be discarded. It is true that the Doctor has not found any injury on the person of the deceased being caused by sharp cutting weapon, rather the Doctor did find the injuries in the nature of abrasions and lacerations, but this does not appear to be fatal for the prosecution in the facts and circumstances of the case. In this regard, it be noticed that the witnesses particularly P.Ws. 5, 6 and 13 have deposed that when the deceased reached near the house of Sheetal Mahli, the appellant gave Farsa blow and immediately, the appellant in order to save himself fled from there and in that course, he fell down in the well. In that event, it is quite possible that the appellant when gave flow blow, it may not have hit the deceased and therefore, the deceased in order to save himself fled from there. In such event, the witnesses when saw the appellant giving Farsa blow, did depose that the deceased was assaulted by Farsa. 12. Under the circumstances, we do not find substance in the submissions advanced on behalf of the appellant in this regard. Further, we do find consistency in the testimonies of the witnesses that the appellant did not allow the deceased to be rescued, attempt of which, was made by P.Ws. 3 and 4 and that the appellant drowned the deceased in the water, which fact finds support from the medical evidence . 13. Further, we do find consistency in the testimonies of the witnesses that the appellant did not allow the deceased to be rescued, attempt of which, was made by P.Ws. 3 and 4 and that the appellant drowned the deceased in the water, which fact finds support from the medical evidence . 13. Accordingly, we do find that the trial court is absolutely justified in recording the judgment of conviction and the order of sentence as aforesaid. Accordingly, it is hereby, affirmed. 14. In the result, this appeal stands dismissed. Appeal dismissed.