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2018 DIGILAW 639 (JHR)

Mani Baraik v. State of Jharkhand

2018-03-17

RATNAKER BHENGRA, RONGON MUKHOPADHYAY

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JUDGMENT : RONGON MUKHOPADHYAY, J. 1. Heard Mr. Rajesh Kumar, learned counsel for the appellants and Mr. Satish Kr. Keshri, learned A.P.P. for the State. 2. Both these appeals are directed against the judgment and order of conviction and sentence dated 22.05.2012 passed by Sri Om Prakash Pandey, learned Principal Sessions Judge, Gumla in S.T. No. 85 of 2007, whereby and whereunder the appellants have been found guilty under Section 302/34 of the Indian Penal Code and under Section 323/34 of the Indian Penal Code and have been sentenced to undergo R.I. for life as also to pay a fine of Rs. 10,000/- each under Section 302/34 of the Indian Penal Code and they have been further sentenced to R.I. for six months for the offence under Section 323/34 of the Indian Penal Code. 3. The allegation made in the First Information Report is to the effect that the informant lives alone in her house and her husband Vishawnath Baraik lives at Ghaghra and earns his livelihood by doing the job of tailoring. It has been alleged that on 26.11.2006 in the morning when the husband of the informant was working in the Khalihan and the informant was cutting paddy crops in the nearby field at about 10:00 A.M. she heard the sound of quarreling and when she came out she had seen Kewal Baraik was quarreling with her husband. The informant tried to pacify them. It has been alleged that in the meantime Mahabir Baraik and Mani Baraik came and started beating her husband and thereafter Mahabir Baraik gave a knife blow on the stomach of her husband. It has been alleged that when the informant came to rescue him she was also assaulted. On alarm having been raised several persons reached the place of occurrence at which the accused persons fled away. On the way for treatment to the Health Centre the husband of the informant died. It has been stated in the fardbeyan that the reason for the occurrence is that Mahabir Baraik had molested the daughter of the informant on account of which some altercation had taken place. 4. Based on the aforesaid allegation Ghaghra P.S. Case No. 103/06, corresponding to G.R. Case No. 999/2006 was instituted for the offences punishable under Sections 302/34 and 323/34 of the Indian Penal Code. 5. 4. Based on the aforesaid allegation Ghaghra P.S. Case No. 103/06, corresponding to G.R. Case No. 999/2006 was instituted for the offences punishable under Sections 302/34 and 323/34 of the Indian Penal Code. 5. Investigation culminated in submission of charge sheet and after cognizance was taken the case was committed to the Court of Sessions wherein charge was framed under Sections 302/34 of the Indian Penal Code and Section 323/34 of the Indian Penal Code and trial proceeded. 6. In course of trial, 11 witnesses were examined on behalf of the prosecution. 7. PW-1 (Haura Munda) has stated that on the date of occurrence he was carrying paddy from his field. He had seen Mahabir Baraik and Kewal Baraik along with Mani Baraik going to the field and Mahabir Baraik was having a knife in his hand. He has stated that all the three persons started quarreling with the deceased and in course of the heated exchange which was taking place Mahabir Baraik gave a knife blow on the stomach of the deceased. He has stated that the accused persons had also assaulted the informant. He has further stated that Rajendra Oraon was also present at the spot and he had tried to save the deceased and in fact Rejendra Oraon received injury on his hand. He has deposed that after the incident he had gone home taking away the paddy and later on he could come to know that after 15-20 minutes from the time of the incident Vishwanath Baraik had died. He has further stated that he had come to know that Mahabir Baraik had teased the daughter of Vishwanath Baraik which was opposed by him and which was the root cause of the incident. He has further stated that the Police had never interrogated him. This witness has also disclosed that only one knife blow was given to the deceased. 8. PW-2 (Rajendra Oraon) is also an eye witness who has stated that the occurrence took place on 26.11.2006 at about 10:00 A.M. when he was working as a labour in a well. He was told that some altercation had taken place in the field of Vishwanath Baraik but before he reached the place of occurrence the quarrel had stopped. He has stated that after some time Mahabir Baraik and Mani Baraik reached there and started quarreling with the deceased. He was told that some altercation had taken place in the field of Vishwanath Baraik but before he reached the place of occurrence the quarrel had stopped. He has stated that after some time Mahabir Baraik and Mani Baraik reached there and started quarreling with the deceased. Mahabir Baraik had a knife in his hand and in course of altercation he had given a knife blow on the abdomen of the deceased. He has further stated that the daughter of the deceased, the wife of the deceased, the mother of the deceased and Haura Munda were present at the place of occurrence and they had tried to prevent the incident. He has further stated that Vishwanath Baraik was taken to his home in an injured condition where he died. This witness has disclosed that he had come to know that the daughter of the deceased and Mahabir Baraik had a love affair which was the reason for the altercation. He has further stated that the deceased Vishwanath Baraik was his uncle and he had died at about 11:00 A.M. 9. PW-3 (Savita Kumari) is the daughter of the deceased who has stated that on 26.11.2006 at about 10:00 A.M. she was crushing paddy with her parents in the Khalihan. Kewal Baraik had reached there and started quarreling with her father and after her mother's intervention he had returned back. She has stated that subsequently thereafter Kewal Baraik once again came accompanied by Mahabir Baraik and Mani Baraik. Mahabir Baraik had a knife while Kewal Baraik had a akhain. She has stated that they had started abusing her father and Mahabir Baraik stabbed in his abdomen with a knife while Kewal Baraik assaulted her mother. On alarm the villagers reached the place of occurrence and while her father was being taken to the hospital he died. She has further stated that her mother had suffered injury on her nose. She has also disclosed that two days earlier while she was going to school Mahabir Baraik had teased her which was informed to her parents and Mahabir Baraik was scolded by them. In cross-examination she has stated that there was a 20 feet distance between the deceased and herself and firstly Kewal Baraik had assaulted his father and went away and after half an hour the others had come. She has also stated that her mother was assaulted with a stone. 10. In cross-examination she has stated that there was a 20 feet distance between the deceased and herself and firstly Kewal Baraik had assaulted his father and went away and after half an hour the others had come. She has also stated that her mother was assaulted with a stone. 10. PW-4 (Bandhu Singh) is a hearsay witness who has stated the he had heard about the incident. 11. PW-5 (Digember Singh) is also a hearsay witness. 12. PW-6 (Suresh Singh) has stated that on the date of occurrence a blood stained knife was recovered from the house of Kewal Baraik and a seizure list was also duly prepared. He had signed on the seizure list and had identified his signature which was marked as Exhibit-1. 13. PW-7 (Bindeshwar Yadav) is a witness to the blood stained soil seized by the Police. This witness had identified his signature in the seizure list marked as Exhibit-2. 14. PW-8 (Somni Devi) is the informant and the wife of the deceased. She has stated that on the date of occurrence she was cutting paddy in the field and her husband was separating paddy seeds from the straw at which point of time Kewal Baraik reached there and started quarreling with her husband. She has stated that due to her intervention the altercation stopped and Kewal Baraik went away. After some time Kewal Baraik once again came and he was accompanied by Mahabir Baraik who had a knife. She has also stated that the Samdhi of Kewal Baraik namely Mani Baraik had also come armed with an akhain. They had started quarreling with her husband and getting alarmed she called out to Rajendra Oraon and Haura Munda who tried to pacify the matter but in course of altercation Mahabir Baraik stabbed the deceased in his abdomen with a knife while Mani Baraik assaulted the deceased with akhain. This witness has also stated that she had received injuries while trying to intervene. She has also stated that after the assault the accused persons had fled away. On account of the assault the intestine of her husband had come out. She has disclosed that Mahabir Baraik had teased her daughter which resulted in the altercation. She has further stated that her husband died on the way while being taken to Ghaghra Hospital. She has admitted about enmity between both the sides due to land dispute. 15. On account of the assault the intestine of her husband had come out. She has disclosed that Mahabir Baraik had teased her daughter which resulted in the altercation. She has further stated that her husband died on the way while being taken to Ghaghra Hospital. She has admitted about enmity between both the sides due to land dispute. 15. PW-9 (Doctor Vijay Hansda) was posted as a Medical Officer, Ghaghra, P.H.C. and he had examined PW-8 and had found laceration over the nose caused by hard and blunt substance. The injury was opined to be simple in nature. 16. PW-10 (Doctor Saurav Prasad) had conducted the autopsy on the dead body of Vishwanath Baraik and had found that rectum was damaged with faecal contents floating in periteneal cavity and spleen was also ruptured. The wound which was found in the person of the deceased was an incised wound 2 Inch x 1 Inch. The cause of death was ascertained as shock due to hemorrhage. This witness has proved the postmortem which has been marked as Exhibit-5. 17. PW-11 (Manoj Kumar Gupta) is the Investigating Officer who on 26.11.2006 was posted as A.S.I. at Ghaghra Police Station. This witness had proved the fardbeyan, formal F.I.R. and inquest report marked as Exhibits-6, 7 and 8. After taking over investigation he sent the dead body of Vishwanath Baraik to Sadar Hospital, Gumla for postmortem. He thereafter visited the place of occurrence which is the agricultural field of the informant in village Laskar. He has stated that the occurrence had taken place in the Khalihan and in the East of the place of occurrence is the Parti land of Jaleshwar Mahto, in the West the Parti land of Mahru Oraon and in the South the house of Mahleshwar Baraik was situated. He had seized the blood stained soil from the place of occurrence and prepared the seizure list which is in his own writing and signature marked as Exhibit-2/1. He had thereafter recorded the statement of the witnesses. On 27.11.2006 he had arrested Kewal Baraik and Mahabir Baraik and Mahabir Baraik had confessed which led to recovery of blood stained knife from inside the house and a seizure list was prepared which was marked as Exhibit 1/1. This witness after conclusion of investigation had submitted charge sheet. 18. He had thereafter recorded the statement of the witnesses. On 27.11.2006 he had arrested Kewal Baraik and Mahabir Baraik and Mahabir Baraik had confessed which led to recovery of blood stained knife from inside the house and a seizure list was prepared which was marked as Exhibit 1/1. This witness after conclusion of investigation had submitted charge sheet. 18. The appellants were examined u/s 313 Cr.P.C. in which they had denied to have participated in the occurrence. 19. It has been submitted by Mr. Rajesh Kumar, learned counsel for the appellants that there are vital contradictions in the evidences of PWs. 1, 2, 3 and 8. Learned counsel for the appellants submits that only a single blow admittedly was given to the deceased by Mahabir Baraik which would suggest that there was no intention on the part of the accused to commit the murder of Vishwanath Baraik and therefore at best a case under Section 304 of the Indian Penal Code is made out. Learned counsel also submits that PW-8 had disclosed about the land dispute existing between both the sides and there was also an occasion of eve teasing which has resulted in some altercation and grave provocation which would point to the fact that there was no intention on the part of the appellants to commit the murder. It has further been submitted that the scuffle had taken place at 10:00 A.M. and the deceased had died at 11:00 A.M. and in view of the fact that only a single blow was given and if the deceased was administered prompt and immediate medical attention he would have survived such assault. Learned counsel for the appellants further submits that so far as the appellants Kewal Baraik and Mani Baraik are concerned there was no common intention to attract Section 34 of the Indian Penal Code. Leaned counsel submits that Kewal Baraik and Mani Baraik had merely accompanied Mahabir Baraik and there was no pre-motivated design on the part of these two appellants to have taken part in the assault to do away with the life of Vishwanath Baraik. Leaned counsel submits that Kewal Baraik and Mani Baraik had merely accompanied Mahabir Baraik and there was no pre-motivated design on the part of these two appellants to have taken part in the assault to do away with the life of Vishwanath Baraik. In support of his various contentions learned counsel has referred to the case of Bishu Sarkar and Others vs. State of West Bengal, AIR (2017) SC 1729, Pandurang Punappa Karpe vs. State of Maharashtra, (2002) 9 SCC 539 and in the case of Surendra and Another vs. State of Maharashtra, (2006) 11 SCC 434 . 20. Learned A.P.P. for the State has on the other hand supported the impugned judgment and has submitted that the evidences of the witnesses are natural and unadulterated. He had submitted that the oral evidence has been sufficiently corroborated by the Medical evidence. Learned A.P.P. further submits that the confessional statement of Mahabir Baraik led to recovery of the blood stained knife which further proves the guilt of the appellant. He has further submitted that in the 313 Cr.P.C. examination the appellants had not given any suitable explanation rather had given evasive reply. It has been submitted that the eye witnesses namely P.Ws. 1, 2, 3 and 8 have corroborated each other’s testimony and had proved beyond doubt about the role played by each of the appellant in a ghastly fashion to commit the death of Vishwanath Baraik. 21. On consideration of the argument advanced by the learned counsel for the parties and after going through the Lower Court Records we find that there are several eye witnesses to the occurrence who had categorically disclosed about the role of the appellants in committing the murder of Vishwanath Baraik. Although PW-3 and PW-8 are related to the deceased being his daughter and wife respectively but they were very near to the place of occurrence and infact at PW-8's intervention the initial quarrel between Kewal Baraik and the deceased had stopped. Both these witnesses have stated about the subsequent gathering of force by Kewal Baraik and which led to Mahabir Baraik inflicting a knife blow on the abdomen of the deceased. Apart from PW-3 and PW-8 PW-1 and PW-2 were also working in the nearby field and they have given a similar version of the incident as has been stated by PW-3 and PW-8. The version of PWs. Apart from PW-3 and PW-8 PW-1 and PW-2 were also working in the nearby field and they have given a similar version of the incident as has been stated by PW-3 and PW-8. The version of PWs. 1, 2, 3 and 8 are unadulterated and have withstood the tirade of questions in the cross-examination. Mahabir Baraik has been assigned the specific role of inflicting the knife blow on the stomach of the deceased and the postmortem report corroborates the said fact and the manner in which the said knife was inserted which led to rupture of abdomen as well as spleen. The seizure list reveals that the knife was about 12 Inches long. The incident as unfolded by the version of the witnesses do not suggest that it had occurred on the spur of the moment due to a heated exchange between both the sides. Kewal Baraik had earlier an altercation with the deceased and some of the witnesses have also stated that after the assault this accused had gone back and had returned with his son and samdhi in tow. His son Mahabir Baraik had a knife whereas Mani Baraik was armed with an akhain. This clearly depicts that there was a pre-meditated plan and intention of the appellants to do away with the life of Vishwanath Baraik. It therefore cannot be said that merely by virtue of there being a single blow upon the deceased the same would lead to culpable homicide not amounting to murder. The appellants seemed infuriated by the allegation of eve teasing of PW-3 and had wanted to settle scores with the deceased. The submission of the learned counsel for the appellants that there was no intention on the part of the appellants to commit the murder of Vishwanath Baraik could have been understandable if at the time of the initial quarrel the incident had taken place as it could have been inferred perhaps that at the spur of the moment such incident had resulted. However, as has been stated above the consistency of the witnesses in their statement that after the first altercation had taken place between the deceased and Kewal Baraik, Kewal Baraik had gone back and subsequently returned with the rest appellants which highlights the fact that the incident had occurred not at the spur of the moment but by a pre-conceived, pre-concerted and in a pre-planned way by the appellants. The learned counsel for the appellants had tried to justify the possession of knife by Mahabir Baraik by stating that the same was used for harvesting but such argument is not acceptable solely for the reason that for cutting paddy generally a sickle (hasuwa) is used and not a knife. Moreover it is not the case of the defence that Mahabir Baraik and the other appellants were busy in cutting paddy. Mahabir Baraik had appeared on the scene after the initial quarrel had occurred between Kewal Baraik and the deceased. Learned counsel for the appellants has also stressed much upon the fact that there was no common intention of the part of Kewal Baraik and Mani Baraik so as to attract Section 34 of the Indian Penal Code. In the case of Bishu Sarkar and Others vs. State of West Bengal, (2017) 11 SCC 105 , it was held that some of the accused had only participated in the scuffle and since whether such act was intended to enable the prime accused to deal the fatal blow was not clear from the record and therefore benefit of doubt was granted to the said accused. In the case of Pandurang Punappa Karpe vs. State of Maharashtra, (2002) 9 SCC 539 , it was held that since there was a single blow the offence would come under Part I of Section 304 of the Indian Penal Code and not under Section 302 of the Indian Penal Code. With respect to provocation and sudden fight resulting in assault it was held in the case of Surendra and Another vs. State of Maharashtra, (2006) 11 SCC 434 that conviction was warranted only under Section 304 Part-I. 22. On a reading of the aforesaid pronouncements cited by the learned counsel for the appellants it is to be seen in the contextual aspects of each of the cases as to whether a single blow would result in conviction only under Section 304 Part I of the Indian Penal Code and whether mere participation would lead to a conviction under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code. 23. As has been noted above the intention of all the appellants is writ large. 23. As has been noted above the intention of all the appellants is writ large. Coming back to the place of occurrence after the initial round of altercation and assault and being armed with a knife and akhain with a pre-meditated plan would definitely entail Kewal Baraik and Mani Baraik of sharing a common intention to commit the murder of Vishwanath Baraik. Thus the prosecution has been able to prove beyond doubt that there was an intention on the part of the appellants to commit the murder of Vishwanath Baraik and the learned trial court therefore had justifiably convicted the appellants for the offences under Section 302/34 and 323/34 of the Indian Penal Code and sentenced them accordingly. There being no reason to conclude otherwise, these appeals fail and the same are hereby, dismissed. Appeals dismissed.