Dilip Mandal Vs State of Jharkhand

(Arising out of Judgment of Conviction dated 13.09.2010 and Order of Sentence dated 15.09.2010 passed by the Sessions Judge, Godda in Sessions Case No. 129 of 2009)

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---- For the Appellants : Ms. Vani Kumari, Advocates For the State : Ms. Nehala Sharmin, Spl.P.P.

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PRESENT: SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J.

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J U D G M E N T

By Court:

Heard the parties.

Since both the criminal appeals arise out of the same judgment, therefore, they are heard together and are being disposed of by this common Judgment.

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These criminal appeals are directed against the Judgment of conviction and sentence passed by the Sessions Judge, Godda in Sessions Case No. 129 of 2009, whereby the appellants have been convicted for the offence punishable under Sections 302/34 of Indian Penal Code and they have been sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/- each for the offence under Section 302/34 of Indian Penal. On default of payment of fine simple imprisonment for three months.

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Prosecution case is a sad commentary of an incidence, where a precious life was lost on sudden heat of moment triggered by a trivial incidence.

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Informant (PW-6) is the son of the deceased. As per FIR on 16.04.2009 the deceased was preparing puffed rice when, the bullock of Dilip Mandal started eating the straws of the informant. The deceased shoved away the bullock as a result of which, the appellants came and abused the deceased and assaulted him with lathi, resulting in head injury. The father of the informant fell down and became unconscious. He was taken to Dr. Gopi Ram for treatment, where he took his last breath.

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Based on the aforesaid fardbeyan, Meharma P.S. Case No. 52 of 2009 was instituted. After investigation the Investigating Officer filed charge-sheet under Sections 341, 323, 325, 307 and 302 of IPC. The cognizance of the said offences was taken and the case was committed to the Court of Sessions. Court framed charges for offence punishable under Sections 302/34 and 341 of IPC and the appellants were put on trial.

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Eight witnesses were examined on behalf of the prosecution and some documents were also exhibited. After closure of the evidence, statements of the accused persons were recorded under Section 313 of Cr.P.C. It is the plea of the defence that the deceased felled down chasing the bullock, resulting in his death.

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Learned counsel for the appellants submits that the entire incident occurred at the spur of moment and thus, the appellants cannot be held guilty for the offence under Section 302 of IPC. She further argues that there are four appellants and there are three injuries, thus, it is not possible to identify as to who had inflicted the major injury. The allegation is general and omnibus in nature. No sharp cutting and dangerous weapon was used in the assault which will discount any intention on the part of the appellants to commit murder.

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Doctor, who had initially treated the deceased, has also not been examined as a witness. All the eye witnesses are the family members and relatives and there are no independent witnesses and there are contradictions in their depositions. On this ground, she prays for acquittal of the appellants.

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Learned counsel for the State has defended the impugned judgment of conviction and order of sentence and submitted that there are eye witnesses

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who had seen these appellants assaulting the deceased. The assault was on the head and there were three injuries. The appellants had common intention to commit murder of the deceased which is evident from the statement of the witnesses. Oral evidence is corroborated by medical evidence which suggests that these appellants had assaulted the father of the informant resulting in his death. As per her submission, Section 34 of IPC is attracted in these cases, thus, it is not necessary to assign particular overt act of each particular accused.

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After going through the judgment and the evidence for the sake of brevity, we are not dealing with each and every witness, but we are dealing with the main witnesses who are the eye witnesses. The eye witnesses in these cases are PWs. 1, 2, 3, 4, 5 and 6. All are the family members and relatives of the deceased. These eye witnesses are wife, son, daughter and relatives of the deceased and since the incidence took place in front of their house, therefore, they are the natural witnesses.

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PW 1, who is the wife of the deceased, stated that when the deceased was preparing puffed rice, the bullock of Dilip Mandal came and started eating the straws and when her husband opposed, all these appellants came there armed with lathi and assaulted him as a result of which, he became unconscious and later on he was taken to the doctor and thereafter he died. Her account is fully corroborated by PWs 2, 3, 4 and 5. Informant PW 6 has also consistently stated that when the bullock came and started eating the straws, the deceased shoved away the bullock when these appellants came in agitated manner and abused and assaulted the deceased as a result of which, he fell down and became unconscious and was taken to the doctor but later on he died. In the cross-examination of each of the witnesses, we could not find any material to doubt their credibility.

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10.Though the doctor, who had initially treated the deceased, has not been examined, yet the doctor, who had conducted the postmortem, has been examined as PW 8. He deposed that he conducted the postmortem and found the following injuries on the person of the deceased:-

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i. Lacerated injury over left temporal region 3” x ½” x ½”.

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ii. Bruise 2” x 2” over left upper eyelid and eye brow.

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iii. Bruise 4” x 1” over a swelling over left calf area.

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He found fracture of left parital and left temporal bone were found on skull. He opined that the death was due to cerebral compression and laceration caused by hard and blunt substance. He also stated that such injuries were possible by assault with lathi. The Medical evidence supports the statements of the eye witnesses as they have stated that the appellants herein had assaulted the deceased with lathi on his head.

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11.PW 7 is the Investigating Officer who stated that he had recorded the statements of eye witnesses and also of the doctor. He inspected the place of occurrence which is the house of the deceased. He also found the hay-stack there. He has given a detail description of place and the boundary of the place of occurrence. Investigating Officer has proved the place of occurrence also.

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Thus, from the evidence adduced by the prosecution, we find that the prosecution has proved the factum of incidence resulting in death of the deceased, in which all the appellants were involved.

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Now the next question, which falls for consideration is whether on the proved facts, charge under Section 302 of IPC is proved beyond the shadow of all reasonable and probable doubt. In Pulicherla Nagaraju v. State of A.P. , (2006) 11 SCC 444 it has been held as under:

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29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters — plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases

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of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention .

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In the present case there were four appellants and there were three wounds on the person of the deceased. The entire occurrence occurred in the heat of the moments. No deadly weapon was used in the assault. Considering the overall facts and circumstance of the case Exception- 4 of Section 300 of IPC will be applicable in these cases and therefore on the basis of evidence on record offence under Section 304 Part II of IPC and not under Section 302 of IPC will be made out. Thus we convert the conviction from 302 IPC to that of under Section 304 Part-II of IPC.

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15.So far as Section 34 of IPC is concerned, we find that there is sufficient evidence against these appellants that all these appellants conjointly assaulted the deceased and were animated by common intention in the said assault.

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16.In the result

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a. We set aside the conviction under Section 302 of IPC and convict these appellants under Section 304 Part II read with Section 34 of IPC.

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b. Considering the age of the appellants and overall facts and circumstances of the cases, they are sentenced to undergo rigorous imprisonment for five years along with a fine of Rs.5000/- each under Section 304 Part II read with section 34 of IPC. In the event of default of payment of fine, simple imprisonment of one month each.

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c. The period of custody, which the appellants already remained, would be set off.

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d. Since the appellants are on bail, their bail are cancelled and they are directed to surrender before the Trial Court within one month, to serve the remaining sentence failing which, the Trial Court will proceed as per law.

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Both these criminal appeals are dismissed with the aforesaid modification in finding and sentence.

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Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment.

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(Ananda Sen, J.)

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(Gautam Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated, the 14^th August, 2024 AKT/Satendra AFR

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Dilip Mandal v. State of Jharkhand

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Dilip Mandal v. State of Jharkhand

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