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2019 DIGILAW 916 (JHR)

Bijay Mahto v. State of Bihar (now Jharkhand)

2019-04-24

APARESH KUMAR SINGH

body2019
JUDGMENT : KAILASH PRASAD DEO, J. 1. Heard learned counsel for the appellant Mr. A.K.Chaturvedi assisted by learned counsel Mr. Hadish Ansari and learned counsel for the State Mr. Azeemuddin, Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 06.09.1996 and order of sentence dated 10.09.1996 passed by learned Sessions Judge, Palamau at Daltonganj in S.T. Case No. 352 of 1992 whereby the accused / appellants Bijay Mahto and Amardeo Mahto have been held guilty for the offence committed and punishable under Section 302 I.P.C and sentenced to undergo R.I. for life. During pendency of the appeal, appellant Amardeo Mahto has died and his criminal appeal has abated vide order dated 24.04.2019 passed by this Court. 3. The prosecution case is based upon the written report submitted by Ram Bilash Mahto before the Officer-In-Charge of Mohammadganj Police Station on 13.05.1992 alleging inter alia as follows:- Informant has stated that today i.e., 13.05.1992 (Wednesday) in the morning at around 10.00 A.M. he went to his paddy filed known as Jirwatar. As soon as he reached his field, he saw the Babul tree in his share of land (after partition of land in the family) being removed by Bijay Mahto and Amardeo Mahto. Informant asked them not to do so, upon which an altercation took place. In the meantime son of informant Arjun Mahto also came there. After his arrival the altercation took a serious turn and both side started hurling abusive language. It is alleged that in the meantime Bijay Mahto has assaulted the informant by means of lathi on the middle part of the head causing bleeding injury and also assaulted the informant on his left elbow by means of lathi. Informant was also assaulted twice by lathi on his buttock. Informant has further alleged that his son Arjun Mahto was also assaulted by Amardeo Mahto (appellant-abated) by means of lathi on the back side of his head; on the right temple region; on the forehead and buttock. Because of assault made by the accused persons both father Ram Bilash Mahto and son Arjun Mahto fell down on the ground. The occurrence has been witnessed by witness Jago Mahto (P.W.2) and Jugari Mahto (P.W.3) and others. 4. Because of assault made by the accused persons both father Ram Bilash Mahto and son Arjun Mahto fell down on the ground. The occurrence has been witnessed by witness Jago Mahto (P.W.2) and Jugari Mahto (P.W.3) and others. 4. On the basis of the written report of the informant Ram Bilash Mahto, Police has registered Mohammadganj P.S. Case No. 13 of 1992 dated 13.05.1992 under Section 323/ 325 I.P.C. Subsequently, after the death of Ram Bilash Mahto, Section 302 I.P.C has been added vide order dated 15.05.1992 Thereafter, during investigation, son of the informant Arjun Mahto also died during treatment at Ranchi. 5. On completion of investigation police has submitted charge-sheet vide number 17 of 1992 dated 31.08.1992 under Section 302/34 of the I.P.C against both the accused persons. Thereafter, cognizance of the offence has taken vide order dated 14.09.1992 and the case has committed to the Court of Sessions vide order dated 19.11.1992. 6. The charge has been framed against both the accused persons under Section 302/34 of the I.P.C vide order dated 06.07.1993. The content of charge has been read over and explained to the accused in Hindi to which they have pleaded not guilty and claimed to be tried. Thus, they were put under trial. 6. In order to prove the case, prosecution has examined altogether 12 prosecution witnesses and also exhibited a number of document up to Ext. 7. I. Mahesh Mahto, nephew of the informant and a hearsay witness has been examined as P.W.1. II. Jago Mahto has been examined as P.W.2. He has been named in the F.I.R as a witness to the occurrence. III. Jugari Mahto has been examined as P.W.3. he is also named in the F.I.R as a witness to the occurrence. IV. Brij Bihari Mahto has been examined as P.W.4. V. Langtu Mahto has been examined as P.W.5. VI. Dr. Mithilesh Prasad Singh, Medical Officer, has been examined as P.W.6. He has conducted the autopsy on the dead body of Ram Bilash Mahto and found a stitched wound 4” in length on mid parietal region extending to posterior part of frontal region. He has proved the post mortem report of Ram Bilash Mahto which has been marked as Ext.1 VII. Dr. Manoranjan Prasad Singh, Medical Officer has been examined as P.W.7. He has proved the post mortem report of Ram Bilash Mahto which has been marked as Ext.1 VII. Dr. Manoranjan Prasad Singh, Medical Officer has been examined as P.W.7. He has examined the injured Ram Bilash Mahto and Arjun Mahto and proved their injury report which has been marked as Ext. 2 and 2/1 respectively. He has also proved injury report of accused / appellant Amardeo Mahto and Bijay Mahto which have been marked as Ext. A and A/1 respectively. VIII. Dr. Niranjan Minz, Medical Officer has been examined as P.W.8. He has conducted the autopsy on the dead body of Arjun Mahto and proved the post mortem report which has been marked as Ext. 1/1. IX. Lakshman Singh, A.S.I and Investigating Officer of the case has been examined as P.W.9. He has proved the inquest report of Ram Bilash Mahto which has been marked as Ext.3 and also proved the F.I.R of Mohammadganj P.S. Case No. 12 of 1992 marked as Ext. B and the written report of Bijay Mahto in the said case has been marked as Ext.C. Requisition for medical examination of the accused persons written in the handwriting of writer constable Ramji Singh before the Officer-In-Charge Basisht Singh have been proved and marked as Ext. D and D/1. Formal F.I.R of Mohammadganj P.S. Case No. 13/1992, G.R. No. 710/1992 has been proved and marked as Ext.4. Para 4 of the case diary has been proved and marked as Ext.6. X. Akhileshwar Mehta has been examined as P.W.10. He has proved the signature of Ram Bilash Mahto on the written report made in his presence written by Bhim Singh which has been marked as Ext. 5. XI. Vidyasagar Mehta has been examined as P.W.11. He has brought the inquest report of Arjun Mahto before the Court under Section 294 Cr.P.C and the same has been marked as Ext. 3/1. XII. Sukhdeo Singh, record keeper of survey office, Daltonganj has been examined as P.W.12 and has brought few publication of old Khata no. 9 (new Khata no. 112) old Khesra No. 298 (new Khesra no. 878) of village Birghour, 45 pages in the handwriting of Surya Narayan Pandey, which has been proved and marked as Ext. 7. 7. After closure of the prosecution evidence accused / appellants have been examined under Section 313 Cr. P.C on 19.12.1995. 9 (new Khata no. 112) old Khesra No. 298 (new Khesra no. 878) of village Birghour, 45 pages in the handwriting of Surya Narayan Pandey, which has been proved and marked as Ext. 7. 7. After closure of the prosecution evidence accused / appellants have been examined under Section 313 Cr. P.C on 19.12.1995. They have claimed themselves to be innocent and false implication in this case. Defence has also examined one witness Awadhesh Singh as D.W.1 to establish that both parties have common ancestors. 8. After hearing learned counsel for the parties and on the basis of materials available on the record, learned trial court has held the appellants guilty and convicted them under Section 302 I.P.C and sentenced them to undergo R.I. for life. 9. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellants have preferred the instant criminal appeal. 10. Heard learned counsel for the appellant Mr. A.K.Chaturvedi assisted by learned counsel Mr. Hadish Ansari and learned counsel for the State Mr. Azeemuddin, Additional Public Prosecutor. 11. Learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence passed by learned Trial Court is not sustainable in the eyes of law. Learned counsel for the appellant has further submitted that there is a case and counter case between the parties. Earlier F.I.R has been instituted by the appellant Bijay Mahto, which has been registered as Mohammadganj P.S. case No. 12 of 1992. Learned counsel for the appellant has further submitted that the accused / appellant Bijay Mahto and Amardeo Mahto had also sustained injury which has been brought on record marked as Ext. A and A/1 proved by P.W.7, Dr. Manoranjan Prasad. Learned counsel for the appellant has further submitted that the F.I.R of Mohammadganj P.S. Case No. 12 of 1992 registered against Ram Bilash Mahto, Arjun Mahto and one Laxman Mahto on the basis of the written report submitted by the accused Bijay Mahto, has been proved by prosecution witness no. 9, A.S.I, Lakshman Singh and brought on record, marked as Ext. B and C without any objection from the prosecution party. Learned counsel for the appellant has thus submitted that it is a case of free fight between the parties, both having sustained injuries. 9, A.S.I, Lakshman Singh and brought on record, marked as Ext. B and C without any objection from the prosecution party. Learned counsel for the appellant has thus submitted that it is a case of free fight between the parties, both having sustained injuries. F.I.R which has been lodged by Ram Bilash Mahto has not disclosed the injury caused upon the accused persons. Learned counsel for the appellant has submitted that the prosecution has to explain the injury caused upon the accused persons though the same may be simple in nature, otherwise it would be presumed that prosecution has not brought true version of the occurrence. Learned counsel for the appellant has submitted that from perusal of Ext.A , injury report of Amardeo Mahto, it appears that he has sustained grievous injury on his head i.e., lacerated wound 1” x 1/6” x 1/6” on the middle of the head with irregular margin, which has been caused by some hard and blunt substance may be lathi or blunt weapon. Learned counsel for the appellant has submitted that in the said case since two of the accused named in the F.I.R namely Ram Bilash Mahto and Arjun Mahto have died, as such both the cases i.e., Mohammadganj P.S. Case No. 12 of 1992 and the present case Mohammadganj P.S. Case No. 13 of 1992 have not been tried together by the Court below. As such, serious prejudice has been caused to the appellant. Learned counsel for the appellant has submitted that witnesses examined on behalf of the prosecution namely Jaga Mahto (P.W.2), Jugari Mahto (P.W.3) and Langtu Mahto (P.W.5) are interested witness whose evidence shows that they were interested in purchasing the land which fall in the share of appellant Amardeo Mahto. Learned counsel for the appellant has thus submitted that there was no intention on the part of the appellant to commit murder, rather on the spur of the moment in heat of passion, altercation took place between both the parties with regard to dispute in removal of Babul tree planted, in the share of land, belonging to the share of accused / appellants, who are agnates and both side used abusive language and there was free fight. Since, in course of such fight, Ram Bilash Mahto and his son Arjun Mahto has died, while appellant Amardeo Mahto has sustained grievous injuries but the learned Trial Court has convicted the appellant under Section 302 of the I.P.C, though there was no intention on the part of appellant to commit such offence. Learned counsel for the appellant has thus submitted that appellant may be acquitted from the charge and conviction under Section 302 of the I.P.C. 12. Learned counsel for the State Mr. Azeemuddin, Additional Public Prosecutor has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of materials available on record. Learned counsel for the State has submitted that in the present case, two persons namely, Ram Bilash Mahato, Informant of the case and his son Arjun Mahato are the victim who died because of the injury caused by the appellant. Learned counsel for the State has further submitted that written report submitted by Ram Bilash Mahato is the basis for institution of the First Information Report and in view of section 32 of the Evidence Act, the same is admissible in law as the Informant has subsequently died on the next day. The injury report of Ram Bilash Mahato has been brought on record as Ext.2 and injury report of Arjun Mahto has been brought on record as Ext.2/1. The postmortem report of Ram Bilash Mahato has been brought on record as Ext.1, which shows that one stitched wound 4” in length on mid parietal region extending to posterior part of frontal region was the cause of death of Ram Bilash Mahato. Subsequently, his son Arjun Mahato also died at Ranchi during treatment. The postmortem report of Arjun Mahato has been proved and marked as Ext.1/1. Inquest report of Ram Bilash Mahto and Inquest report of Arjun Mahto have been brought on record as Ext.3 and 3/1 respectively. Learned counsel for the State has thus submitted that though, there is a case and counter case between the parties, but the appellants are the aggressor who have assaulted the Informant and his son who ultimately died because of injury caused on vital part of the body by the appellants by means of lathi. Learned counsel for the State has thus submitted that though, there is a case and counter case between the parties, but the appellants are the aggressor who have assaulted the Informant and his son who ultimately died because of injury caused on vital part of the body by the appellants by means of lathi. Learned counsel for the State has thus submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of materials available on record and the same does not warrant any interference by this Court. 13. Heard, learned counsel for the appellant Mr. A.K. Chaturvedi, assisted by Mr. Hadish Ansari and learned counsel for the State Mr. Azeemuddin, Additional Public Prosecutor and perused the materials on record i.e., First Information Report, framing of charge, evidence of the 12 prosecution witnesses, 7 prosecution exhibits, statement of the accused recorded under Section 313 Cr.PC as well defence evidence of D.W.1 Awadhesh Singh apart from the injury report of the appellant (Ext.A/1), F.I.R. Of Mohammadganj P.S. Case No. 12/1992 (Ext.B) and its written report (Ext.C) and medical requisition for examination of the appellants Amardeo Mahto and Bijay Mahto which has been brought on record as Ext.D and D/1 as well as impugned judgment of conviction and order of sentence. 14. It appears to the Court that there was free fight between the parties and both sides have sustained injuries. From perusal of the materials brought on record, it appears that Mohammadganj P.S. Case No. 12/1992 has been instituted against the informant Ram Bilash Mahto and his son Arjun Mahto and one Lakshman Mahto under sections 323 and 325 of the Indian Penal Code. But so far as the present case being Mohammadganj P.S. Case No. 13/1992 is concerned, the same was initially instituted under sections 323 and 325 of the Indian Penal Code and after death of Ram Bilash Mahto, section 302 of the Indian Penal Code was added and subsequently after four days, another victim Arjun Mahto also died during treatment at Ranchi. The nature of injury shows that these appellants were responsible for assaulting the victim by means of lathi. The injury reports of informant Ram Bilash Mahto and Arjun Mahto proved by the Medical Officer Dr. Manoranjan Prasad Singh (P.W.7) marked as Ext. The nature of injury shows that these appellants were responsible for assaulting the victim by means of lathi. The injury reports of informant Ram Bilash Mahto and Arjun Mahto proved by the Medical Officer Dr. Manoranjan Prasad Singh (P.W.7) marked as Ext. 2 and 2/1 respectively shows as under: Injury report of Ram Bilash Mahto:- 1. Lacerated wound on the middle of head 2 ½” x 1/6” x 1/6” with irregular margin. It was close head injury and was grievous in nature and this injury was caused by a hard and blunt substance which may be a lathi. 2. Pain over whole body. Age of injury no.1 as well as 2 was within 24 hours from the time of examination. The injury report is in pen and signature marked as Ext.2 Injury report of Arjun Mahto:- 1. Lacerated wound 1/2" x 1/6” x 1/6” on the middle of the head with irregular margin. It was a closed head injury and was grievous in nature and was caused by a hard and blunt substance which may be a lathi. Age of injury was within 24 hours from the time of examination. The injury report is in his pen and signature marked as Ext.2/1 The witnesses namely, Jaga Mahto (P.W.2) and Langtu Mahto (P.W.5) are the persons who have heard about the occurrence from the mouth of the Informant and witness Brij Bihari Mehta (P.W.4) has seen the occurrence from a distance of 70-80 yards while he was working in the paddy field. Exception-4 to Section 300 of the Indian Penal Code would apply to the facts and circumstances of this case as it appears that the occurrence took place on the spur of moment in the heat of passion over a dispute regarding Babool tree. There is consistent evidence that initially, the Informant Ram Bilash Mahto asked these persons not to cut Babool tree in the share of land belonging to the informant, which was protested by these appellants and thereafter the verbal altercation took a serious turn where abusive languages were exchanged between the parties and assault took place. There is consistent evidence that initially, the Informant Ram Bilash Mahto asked these persons not to cut Babool tree in the share of land belonging to the informant, which was protested by these appellants and thereafter the verbal altercation took a serious turn where abusive languages were exchanged between the parties and assault took place. From perusal of the First Information Report, it appears that the Informant has not disclosed this fact that they have also assaulted the appellants causing injury, but from the evidence of the Investigating Officer Lakshman Singh (P.W.9) at para-14 of his cross-examination, he has categorically admitted that on the basis of the written report of the Bijay Mahto (appellant), he has instituted Mohammadganj P.S. Case No. 12/1992 on 13.05.1992 and the place of occurrence of both the cases i.e. Mohammadganj P.S. Case No. 12/1992 and 13/1992 (present case) are the same. 15. The evidence on record examined in the aforesaid fashion, in the light of the ingredients of Exception 4 to Section 300 of the Indian Penal Code leads us to the conclusion that the entire occurrence took place in course of a sudden fight on the spur of the moment and in heat of passion without any pre-meditation. Reliance is placed on the opinion of the Apex Court in the case of Manoj Kumar versus. State of Himachal Pradesh and analogous cases reported in (2018) 7 SCC 327 contained in para 26 to 28 and 30 whereunder the proposition laid down in the case of Sridhar Bhuyan versus State of Orissa reported in (2004) 11 SCC 395 and Camilo Vaz Versus State of Goa reported in (2000) 9 SCC 1 have also been discussed by the Apex Court while reiterating the position of law. We derive profit in reproducing the extract of the judgment as under: 26. Exception 4 to Section 300 IPC reads as under: “Exception 4.— Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.” 27. Exception 4 to Section 300 IPC reads as under: “Exception 4.— Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.” 27. There is no dispute about the ingredients of Exception 4 to Section 300 IPC, the following conditions are to be satisfied namely: (i) that the incident happened without premeditation; (ii) in a sudden fight; (iii) in the heat of passion; (iv) upon a sudden quarrel; and (v) without the offender having taken undue advantage or acted in a cruel or unusual manner. 28. It may be relevant to note that in Sridhar Bhuyan v. State of Orissa, it was held as under: (SCC pp. 396-97, paras 7-8) “7. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of the prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A “sudden fight” implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. A “sudden fight” implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.” 30. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.” 30. In Camilo Vaz v. State of Goa, referring to the ambit of Section 304 of the Code, this Court in similar set of circumstances held thus: (SCC p. 9, para 14) “14. This section is in two parts. If analysed, the section provides for two kinds of punishment to two different situations: (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here the important ingredient is the “intention”; (2) if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on a vital part of the body with such force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation the case will fall in Part II of Section 304 IPC as in the present case.” 16. On the analysis of facts of the present case, we are of the opinion that the parties were agnates and because of the dispute with regard to the babool tree, the parties have entered into a verbal altercation in the beginning which graduated into a sudden quarrel and use of abusive language and ultimately lead to the assault which was fatal, but without previous deliberation or premeditation. Rather the occurrence was result of a sudden fight between both the parties and both the parties have assaulted each other causing injury. In such a sudden fight, both the parties are more or less to be blamed. Heat of passion requires that there must be no time for passion to cool down. As such, in the facts of the present case also, we do not find that the appellants got any time to cool down and then react in a gruesome and premeditated manner to commit fatal assault. Heat of passion requires that there must be no time for passion to cool down. As such, in the facts of the present case also, we do not find that the appellants got any time to cool down and then react in a gruesome and premeditated manner to commit fatal assault. In such type of case, we can safely conclude that the intent to commit murder was missing. Therefore, the appellant is entitled to the benefit of Exception 4 to Section 300 of the Indian Penal Code. 17. As such, we are of the opinion that conviction of the appellant under section 302 of the Indian Penal Code cannot be sustained in the eyes of law and the same is set aside. Conviction of the appellant is sustainable under Section 304 Part-II of the I.P.C. We find that appellant Amardeo Mahto has died during pendency of the appeal and his appeal has already abated. So far as appellant Bijay Mahto is concerned, he has remained in custody from 05.06.1992 till his conviction and has been released on bail by this Court on 18.12.1997. Occurrence is of the year 1992 and the appellant was aged about 30 years, which means that presently he is aged about 57 years and has faced rigors of trial for about 27 years till date. 18. Considering the same, we are of the opinion that the period already undergone by the appellant Bijay Mahto is sufficient to meet the ends of justice but with a fine of Rs.25,000/- payable to the family of the deceased Ram Bilash Mahto and Arjun Mahto and in default in payment of fine, he shall undergo R.I. for 3 months. Since he has already served substantive sentence, he is discharged from the liability of the bail bonds. Appellant Bijay Mahto is directed to deposit a sum of Rs.25,000/- before the Court below within 10 weeks from today. After deposit of the said amount, learned Trial Court shall issue notice to the legal heir of the deceased Ram Bilash Mahto and Arjun Mahto and after proper verification of the same, amount so deposited shall be disbursed to the legal heirs. In case appellant fails to deposit the fine amount within a period of 10 weeks, as directed above, learned Trial Court would take legal steps for his arrest for serving sentence for 3 months of R.I. 19. In case appellant fails to deposit the fine amount within a period of 10 weeks, as directed above, learned Trial Court would take legal steps for his arrest for serving sentence for 3 months of R.I. 19. In the result, the appeal is partly allowed. Let the Lower Court Records along with a copy of the judgment be sent down to the court below.