Khoshi Alias Khosi Vs State of Jharkhand

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Cr. Appeal (S.J.) No.703 of 2012 WITH

Cr. Appeal (S.J.) No.704 of 2012

[ Against the judgment of conviction dated 28.05.2012 and order of sentence dated 06.06.2012 passed by learned District & Additional Sessions Judge-II, Giridih in Sessions Trial No.451 of 2009]

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Cr. Appeal (S.J.) No.703 of 2012

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------ Khoshi @ Khosi Mahto .... .... …. Appellant Versus The State of Jharkhand .... .... .... Respondent

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WITH

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Cr. Appeal (S.J.) No.704 of 2012

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------

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Jhari Mahto

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For the Appellants : Mr. Shrree Nivas Roy, Advocate

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(In Cr. Appeal (S.J.) No.703 of 2012) Mr. S.K. Murtty, Advocate (In Cr. Appeal (S.J.) No.704 of 2012) Mr. Manish Yadav, Amicus Curiae (In Cr. Appeal (S.J.) No.703 of 2012) : Mr. Jitendra Pandey, A.P.P. (In Cr. Appeal (S.J.) No.703 of 2012) Mr. Arup Kumar Dey, A.P.P. (In Cr. Appeal (S.J.) No.704 of 2012) -----

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For the State : Mr. Jitendra Pandey, A.P.P.

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PRESENT

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HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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By Court 1. This appeal is directed against the judgment of conviction dated 28.05.2012 and order of sentence dated 06.06.2012 passed by learned District & Additional Sessions Judge-II, Giridih in Sessions Trial No.451 of 2009 whereby and whereunder the appellant- Khoshi @ Khosi Mahto has been convicted and sentence under Section 304(II) of the IPC, appellant-Jhari Mahto under Section 323 of the IPC and appellant-Bishun @ Bishu Yadav under Section 324 of the Indian Penal Code. Jhari Mahto being 81 years of age, has been given the benefits of Probation of Offenders Act, whereas other two appellants have been sentenced to different terms of imprisonment.

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As per the fardbeyan of Ramdeo Yadav recorded on 21.07.2009 in Sadar Hospital, Giridih at 9 O’ Clock, on the said date in the morning at 5 O’ Clock his father Jhari Mahto along with his son Bishu Yadav had gone for transplanting paddy in his field which was objected to by his uncle Giro Mahto. Khoshi Yadav with Farsa, Dulari Devi with Lathi started abusing the informant. When this was objected to, Khoshi Yadav indiscriminately assaulted Giro Mahto by Farsa all over his body.

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On Hulla, when Tuplal Mahto came there, Bishu Yadav inflicted Tangi blow over his leg, Jhari Mahto and Dulari Devi also joined the assailants and started assaulting with Lathi , as a result the informant sustained bleeding injury. The injured were taken for treatment to Sadar Hospital, Giridih.

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Genesis of the offence is dispute over monetary transaction. On the basis of written report, Giridih (Mufassil) P.S. Case No.221/2009 was registered under Sections 341, 323, 324, 307, 506, 448/34 of the IPC against Khoshi Mahto, Dulari Devi and Bishu Yadav. Police, on investigation, found the case true and submitted charge sheet against Jhari Mahto, Bishu Yadav and Khoshi Mahto.

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All the three accused persons were put on trial under Sections 341, 323, 324, 302, 506, 448/34 of the IPC and convicted and sentenced as stated above. 5. Altogether nine witnesses have been examined and Exhibit 1–7 including post-mortem report of deceased Giro Mahto and injury report have been adduced into evidence and marked as Exhibit. After the prosecution evidence, statement of the accused persons was recorded. Defence is of innocence and two defence witnesses have been examined.

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After the prosecution evidence, the statement of the accused persons was recorded under Section 313 of the CrPC, and two witnesses were also examined on behalf of the defence. The certified copy of sale deed executed in favour of Ramdeo Mahto and others by Giro Mahto on 25.06.2003 has been adduced into evidence and marked as Exhibit A and the copy of the FIR in Sadar Mufassil Case No.222/09 lodged by Jhari Mahto against Giro Mahto and others under Sections 341/323/324/307/34 of the IPC has been not as Exhibit B.

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It is submitted by the learned counsel on behalf of appellant-Khoshi Mahto that the injuries alleged to be inflicted, were not on vital part of body which will be evident from post-mortem examination report (Exhibit-1). All the injuries were on the leg and death took place seven days after the incidence which will go to show that there was no intention to cause death. In this view of matter offence under Section 304 Part II IPC is not proved. Furthermore, the matter involves bona-fide land dispute and the assault was not the outcome of the pre-meditation and preconcerted design. Appellants were ploughing their own field and when this was obstructed, they acted in self defence.

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Learned A.P.P. has repelled the argument advanced on behalf of the appellants. It is submitted by learned counsel that there are two fundamental ingredients of Section 304 Part II IPC, first is of causing death with the requisite intention and second is with the knowledge. In the instant case, as per the postmortem report, the death was caused by shock and hemorrhage caused by multiple injuries. It has come in evidence that those injuries were inflicted by Farsa by the appellant-Khosi Mahto and therefore, he can be credited with knowledge that the

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accused indiscriminately injured the deceased by Farsa resulting in his death.

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On the point of sentence, it is submitted that there is no past conviction against the appellant-Khoshi Mahto and the sentence for R.I. for eight years have been imposed. The appellant has already undergone more than four years of imprisonment. It is further argued that there is case and counter case and the appellant had also sustained injury.

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It is submitted by learned counsel on behalf of appellant that appellantBishun @ Bishu Yadav that allegation against him is that he assaulted Tuplal Mahto with axe, but the injury report does not corroborate the infliction of injury by sharp edged weapon. The injury report of Tuplal has been adduced into evidence and marked as Exhibit- 3 wherein the injury no.1 was found to be simple in nature and injury no.2 was found to be grievous. Both the injuries were lacerated which cannot be said to be caused by any sharp edged weapon. On the point of sentence, it is argued that considering the nature of injury and over all facts and circumstance of the case, the appellant should have been enlarged under the provisions of Probation of Offenders Act.

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The incidence takes place on 21.07.2009 at 5 O’clock in the morning, and the FIR is registered on the very same day at 9 A.M. on the basis of the statement of injured Ramdeo Yadav recorded in southern Hospital Giridih. Name of all these appellants appear in the fardbeyan of the informant.

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Death of Giro Mahto was homicidal in nature is proved by the post-mortem examination report (Exihibit-1). Informant and Tuplal Yadav also sustained injury in the assault is proved by the injury reports (Exihibit-2 &3). Promptness in registration of the case and examination of the injured, lends credence to the prosecution case that the incidence took place in which Giro Mahto sustained fatal injuries, and other two also were injured.

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Regarding the manner of the incidence, injured Tuplal Mahto and Ramdeo Yadav have been examined as P.W. 4 and P.W. 7 respectively. Both of them have given a consistent account of the incidence in which it has been stated that accused persons were ploughing the field of Giro Mahto and when this was objected too by him, they started abusing. Giro Mahto was inflicted Farsa blow. Dulari Devi and Jhari Mahto assaulted him with Lathi. When he along with Ramdeo went to his rescue, Ramdeo was Tangi blow over his leg by Bishu Yadav and Tuplal Yadav was also struck with Tangi over his head as a result they got injured. Giro Mahto was referred for treatment from Giridih to Dhanbad, where he died during the course of his treatment after seven days. Both these witnesses have been cross examined at length but there deposition has remained undemolished. It is settled principle of law that testimony of injured witnesses is entitled to a higher degree of credence. It has been held in Abdul Sayeed Vs State of MP , SC 2010(4) East Cr. C 150

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Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable as he is a witness that comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare the actual assailants in order to falsely implicate some one. Convincing evidence is required to discredit an injured witness.

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The testimony of these witnesses is duly corroborated by other eye witnesses namely P.W. 1- Harkhu Yadav, P.W. 2- Bhim Lal Yadav, P.W. 3-Jamuna Yadav, P.W.6- Chando Yadav. The evidence of these witnesses have been discussed at length by the learned trial Court, and I do not see any cogent reason to defer with the findings recorded by the trial Court.

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It is true that the incidence appears to have taken place on the spur of moment, when Giro Mahto objected the ploughing of field by the accused persons. The evidence regarding case and counter case do suggest that the land dispute eventually resulted in a free fight and therefore, the learned trial Court has rightly not applied Section 34 of the IPC in the present case while convicting the accused persons.

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The matter for consideration is whether on these facts the charge under Section 304 Part II of the IPC is proved against appellant-Khosi Mahto. As discussed above, there is consistent evidence that it was Khosi Mahto who had inflicted indiscriminate Farsa blow to Giro Yadav resulting in multiple injuries.

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In order to prove the charge under Section 304 of the IPC, it is incumbent upon prosecution to prove the following ingredients:-

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i. The death of person must have been caused;

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ii. Such death must have been caused by the act of the accused by causing bodily injury;

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iii. There must be an intention on the part of the accused:

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a. To cause death; or

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b. To cause such bodily injury which is likely to cause death.

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iv. There must be knowledge on the part of the accused that the bodily injury is such that it is likely to cause death (Part II).

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Intention or knowledge are mental elements which can only be inferred from the nature of weapon used, part of the body in which such injury is inflicted and the overall facts and circumstance of the particular case. A cumulative reading of the testimony of the witness do suggest that sudden quarrel took place on the issue of ploughing agricultural land claimed by both sides. There is some force in the argument on behalf of the appellant that the intention to cause death was absent in the present case as the injuries were not inflicted on the vital part of the body. Assailant- Khoshi Mahto however can be credited with the knowledge that inflicting of multiple injuries by a sharp edged weapon like Farsa was sufficient to cause death of a person. When a person inflicts indiscriminate critical injury on the person, he

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cannot get away with the plea that he had knowledge that his act will result in death of the person.

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In this view of matter, I do not find any infirmity in the conviction of Khoshi Mahto under Section 304 Part II of the IPC and accordingly, the judgment of conviction is affirmed. On the point of sentence, taking into account the genesis of offence, age and antecedent of the appellant, overall facts and circumstance of the case, substantive sentence of imprisonment is reduced to the period already undergone.

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In view of the direct eye witness account as discussed above, judgment of conviction of appellants Bishun @ Bishu Yadav and Jhari Mahto is affirmed. Jhari Mahto has already been given the benefit of Probation of Offenders Act as far as Bishun @ Bishu Yadav is concerned, the period already undergone by him will meet the ends of justice.

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With this modification of finding of sentence, the appeal stands dismissed.

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(Gautam Kumar Choudhary, J . )

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Jharkhand High Court, Ranchi Dated, 3^rd April, 2024

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AFR/Anit

Khoshi Alias Khosi v. State of Jharkhand

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Khoshi Alias Khosi v. State of Jharkhand

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