High Court
Case Details
Criminal Appeal (D.B.) No. 486 of 2014 [Arising out of judgment of conviction dated 30.05.2014 and order of sentence dated 05.06.2014 passed by learned Additional Sessions Judge-I, Hazaribag in Sessions Trial No.314 of 2003] 1. Narendra Mahto son of Sri Manik Mahto 2. Saheshwar Mahto son of Late Jagan Mahto Both resident of Village Gondalpura, P.O. & P.S. Barkagaon, District Hazaribagh --Versus-- The State of Jharkhand …. …. …. Respondent .... …. Appellants .... Criminal Appeal (D.B.) No. 453 of 2014 With 1. Bhekhlal Mahto son of Late Jagan Mahto 2. Manik Mahto son of Late Jagan Mahto 3. Lutan Mahto son of Manik Mahto All resident of Gondalpura, P.O. & P.S. Barkagaon, District Hazaribagh --Versus-- The State of Jharkhand .... …. Appellants …. …. …. Respondent .... For the Appellant For the State
Legal Reasoning
In this view of matter, we are of the view that appellant – Narendra Mahto, who inflicted fatal blow on the deceased cannot be credited with intention to cause death because he did not use the sharp edged part of the Tangi and also if the reason that such incidence took place on spur of moment in a sudden fight. 14. Judgment of conviction and sentence passed against him under Section 302 of the IPC, is set aside and he is convicted for the offence under Section 304 Part II of the IPC. 15. The second question that falls for consideration is whether the other appellants can be held liable for the offence of causing culpable homicide of Murlidhar Mahto with the aid of Section 149 of the IPC. 16. Law is settled that in case of sudden or free fight, Section 149 of the IPC 3 has no application. [Refer to Munir Khan v. State of U.P., (1970) 3 SCC 191 ;(2010) 6 SCC 519]. In the present case, the suddenness in which the incidence took place, it cannot be said that the appellants were actuated by common object to cause death. It can only be inferred that they joined the principal accused with arms and formed an unlawful assembly to prevent the informant party from fencing their land and in prosecution of the said object, assaulted them. Causing of death was not within the contemplation of the other appellants, and it cannot be said to have been committed in the prosecution of the common object of the said assembly. We are of the view that other appellants cannot be constructively liable for the act of Narendara Mahto who caused death of Murlidhar Mahto with the aid of Section 149 IPC. Resultantly, they are held guilty for the offence under Sections 148 and 324/149 of the IPC for causing simple injury to Shanti Kumar and Budhinath Mahto. 17. On the point of sentence, considering the submission that appellant – Narendra Mahto has already served sentence of imprisonment for more than ten years, a sentence of imprisonment for the period already undergone for the offence under Sections 148 and 304 Part II of the IPC will meet the ends of justice. As far as other appellants are concerned, they are sentenced to undergo the period already undergone under Sections 148, 324/149 of the IPC.
Arguments
: Mr. Binod Kumar Dubey, Advocate Mr. A.K. Sahani, Advocate : Mr. Saket Kumar, A.P.P. ----- PRESENT: SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. ----- JUDGMENT By Court Both these appeals arise out of the common judgment passed in Sessions Trial No.314 of 2003 by which the appellants have been convicted and sentenced under Sections 147, 148, 323, 307/149 and Section 302/149 of Indian Penal Code. 2. Informant of the case is Buddinath Mahto, who lodged the written report on 17.07.2002, that he along with his younger brother Murlidhar Mahto were fencing their land to prevent grazing of the crop by cattle. In the meantime, these appellants along with Ashok Mahto and Birendra Mahto came and objected to the fencing and started abusing them with an intention to kill. Thereafter, they brought lathi, danda and tangi from their house and conjointly assaulted them. Specific overt act was attributed to Saheshwar Mahto, who assaulted with lathi and Narendra Mahto with wooden handle of the Tangi, resulting in head injury of the informant and his brother. When they fell down, appellants and others 1 continued the assault. 3. On the basis of the written report, FIR was initially registered under Sections 147, 148, 149, 323 and 307 of the IPC against altogether seven named accused person. Murlidhar Mahto succumbed to injury and Section 302 of the IPC was added in the FIR. 4. After investigation, charge sheet was submitted and the appellants were put on trial under these Sections. Altogether 10 witnesses were examined on behalf of prosecution and relevant documents including the post-mortem examination report was adduced into evidence and marked as exhibit. 5. The judgment of conviction and sentence has been assailed on the ground that incidence took place on the spur of moment without any premeditation in which the entire family members were roped in the case. There is no overt act attributed against any of the accused persons except Narendra Mahto who is said to have assaulted the deceased with sharp edged weapon. There was no intention to cause death, will be evident from the fact as disclosed in the FIR as well as in the testimony of the witnesses that the sharp edged side of Tangi was not used in the assault, but the wood handle was used in the assault. Had the appellants any intention to cause death, they would have used sharp edged side of the axe. Furthermore, injuries sustained by other two injured Shanti Kumari (Exhibit 2/1) and informant – Buddinath Mahto (Exhibit 2/2), were simple in nature. 6. On the point of sentence, it is argued that the appellants are poor farmers without any past conviction to disclose their criminal antecedent. 7. Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that P.W. 6 – informant of the case has deposed that the appellants had come armed with Tangi and Lathi and informant and his brother were being assaulted by them. 8. In order to prove charge of culpable homicide, it is necessary for the prosecution to establish that the accused persons had requisite intention or knowledge to cause death. Murder is an aggregated form of culpable homicide and the offence is made out if the offenders note that their acts were likely to cause death of the person to whom harm was caused or it was intended to inflict such bodily injury which was sufficient in the ordinary course of nature to cause death or with the knowledge that it was eminently dangerous that it was cause death in all probability without any excuse for the same. 2 9. Intention or knowledge is a mental element which can be derived only by way of inference from nature of injury, part of the body in which the such injury is inflicted, nature of weapon used and the manner in which the said weapon was used. 10. Under Exception 4 of Section 300 of Indian Penal Code, 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 having taken undue advantage or acted in a cruel or unusual manner. 11. In the present case, post-mortem examination report (Exhibit 3) of deceased Murlidhar Mahto establishes that death was homicidal in nature. Autopsy surgeon found following abrasion on the body:- I. 5 c.m. X 2 c.m. over right clapicular region II. 2 c.m. X 1/2 c.m. over right lateral neck. III. On examination, contusion was found on frontal parietal scalp and depressed fracture of frontal bone over an area of 6 c.m. X 2 c.m. and a crack fracture from parietal bone extending to the posterior margin. 12. The above nature of injury gives credence to the defence plea that sharp edged side of the Tangi was not used. It has been specifically stated in the FIR that the handle portion was used in the assault by Narendra. Number of injuries found on the body discounts the possibility of all the accused persons having joined the assault. Although it has come in evidence that four of the accused were armed with Tangi, but absence of any injury by sharp cutting weapon, goes to show that intention was not to cause death. The other two injured sustained simple injuries. 13.
Decision
In the result, Criminal Appeal (D.B.) No. 486 of 2014 and Criminal Appeal (D.B.) No.453 of 2014, is dismissed with modification of finding and sentence. The sureties are discharged from the liability of the bail bond. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment. (Ananda Sen, J.) (Gautam Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, 29th July, 2024 AFR/Anit 4