Khedu Mandal vs State of Bihar (now Jharkhand)

Vikramaditya Prasad, J.—This appeal is directed against the judgment of conviction and sentence passed in ST. No. 33/97, wherein the learned Sessions Judge convicted the appellant for the offence u/s 304, Part I and 307, IPC and sentenced him to undergo R.I. for 7 years on each count with fine of Rs. 500/- for the offence u/s 307 and in default, to undergo R.I. for one month.

The prosecution case shortly stated as per the FIR is that on 25.10.1996 at about 7.00 a.m. while deceased Sarju Mandal was constructing a wall with the help of mud on his land and accused Khedu Mandal and his son Mathura Mandal were scraping grass in order to prepare khalihan on the adjacent land, the youngest son of the informant, due to his illness, had come to discharge stool over the adjacent land belonging to the informant, the accused Khedu Mandal and Mathura Mandal started abusing Sarju Mandal and thereafter, Sarju Mandal was further assaulted by means of spade on his head by the accused persons. The informant, on hulla, reached to the place and was assaulted by accused Khedu Mandal on his left temporal region by means of spade causing injuries. It was also disclosed in the written report that the people working in the nearby field assembled at the place of occurrence in order to save the lives of the informant and his son. A written report was lodged at the police station, whereupon Bagodar (Sariya) PS Case No. 229/96 u/s 341/323/324/307, IPC has been registered against the above accused persons. During the course of treatment, the injured Sarju Mandal succumbed to his injuries and as such, Section 302, IPC had been added.

The occurrence took place on 25.10.1996 at about 7.00 a.m. in the morning and FIR was lodged at 7.30 a.m. in the morning and the police station was at a distance of 2 kms. from the P.O. and thus, there is no delay in lodging the FIR.

The defence version of the case is simply denial of the occurrence and false implication due to enmity. The enmity is admitted, in view of Ext. 8, which is a proceeding u/s 107, Cr PC between the parties in the year 1996.

The learned counsel for the appellant has stated that the FIR, Ext. 2, does not specifically state as to who gave the blow to the son of the informant causing his death and as per the FIR, the appellant Khedu Mandal can be attributed only with causing the injury to the informant, which injury, according to the doctor, PW 4, is simple in nature and therefore, neither Section 304, Part I, nor Section 307, IPC is attracted on the evidence in this case. His argument is that in the FIR, there is no allegation that it was Khedu Mandal, who had given the blow on Sarju Mandal, and he died due to that blow, rather in the protest petition, Ext. B, the appellant had stated that it was Mathura Mandal, who had given the blow on the head of Sarju Mandal by a spade, which ultimately resulted in death of Sarju Mandal and therefore, according to the learned counsel for the appellant, the informant, Prayag Mandal, had not seen the occurrence and so in the FIR, he remained silent on the allegation of giving the spade blow on the head of Sarju Mandal and in protest petition, he gave the name of Mathura Mandal. There is no dispute on the point that the P.O., according to the informant, both Khedu Mandal and Mathura Mandal were present. It is found that the informant is giving two versions - first he does not in the FIR give the specific name of the person who assaulted on the head of Sarju and second in the protest petition, Ext. B, he specifically states the name of Mathura Mandal as the person giving blow to Surju Mandal. The learned counsel for the appellant has further argued that the other witnesses examined are not the eye- witnesses of the occurrence as they had actually assembled at the P.O. after the occurrence. Hence referred to their statements made before the court, which were found contradictory to the statements given by them before the I.O.

PW 1 in his cross-examination said that when he reached the P.O. he saw Sarju Mandal in injured condition and also unconscious, para 9, and all other PWs had arrived at the P.O. along with him. He did not say before I.O. that Khedu Mandal had assaulted Surju with intent to kill and at the time of assault, witness namely Parasadi Mandal (PW 2) Jhalia Devi (not examined) and Mahendra Mandal (PW 3) were there. I.O. (PW 10, para 15). Thus, it appears to me that this witness had arrived after the occurrence had seen Sarju in injured and unconscious state.

PW 2, Parasadi Mandal, in his examination-in-chief said that Khedu had assaulted Sarju and Prayag both. He asserts that he stated so before the I.O. The I.O., PW 10, said that he did not say that Khedu gave a blow by Back Portion of Kodal. He also did not say to I.O. that he had tried to pacify.

PW 3, Mahendra Mandal, is the own brother of the deceased, he says that he saw Khedu giving Kodal assault (by back to Sarju) but he did not say so before the I.O. (PW 10, para 19). His presence is not corroborated by PW 1, rather he said that when he came out of the house he found his brother and father in injured condition (PW 10, para 18). Thus, it is clear that he has developed his evidence.

PW 6, Kedar, admits that he saw the injured in pool of blood and got information of occurrence from Sarju but he did not say even this much to the I.O. that hearing hulla he reached the P.O. (PW 10, para 19). Thus, his arrival in absence of any other corroboration, at the P.O., is doubtful and so his getting information of assault from the injured Sarju is not believable, particularly when PW 1 says that Sarju had become unconscious, PW 7 received information (para 1) from Kedar. If the evidence of Kedar is not accepted as eye-witness of the occurrence or on the declaration of Sarju about the circumstances of injuries, there is no reason to accept the evidence of this witness.

PW 8 is the informant and injured also. His presence at the P.O. cannot be disbelieved. He says that Sarju Mandal was assaulted in his head by Khedu and Mathura had caught his collar. He was also assaulted by Khedu. He admitted his signature (Ext. A/2) on Protest Petition (Ext. B) where he had stated that Mathura Mandal had assaulted Surju Mandal, but he said that he did not state so in the protest petition. The FIR is not clear. The protest petition was his own document where he attributed the assault on Surju to Mathura Mandal. The learned trial Court treated other witnesses as eye-witness and therefore, ignored this discrepancy. But I have noted that other witnesses are not eye-witness. Therefore, this discrepancy has to be accepted as it is. Doubt would be there as to who gave the fatal blow to Sarju whether Mathura or Khedu

The FIR is not the complete story of the episode, particularly when it is lodged soon after the occurrence when the informant himself being injured is not in a position to give the minutest details of the occurrence. When the FIR is lodged after some time of the occurrence, the informant is completely in composed state of mind. Here in this case, the informant himself was injured. Therefore, his presence at the P.O. cannot be denied. But because of his two statements (supra), a doubt is created whether it was Khedu, who gave the fatal blow or whether it was Mathura Mandal. Thus, benefit of doubt is given to Khedu. So far the offence u/s 302, IPC is concerned, he has rightly not been convicted for the offence. The question is whether he can be fastened with a charge u/s 304, Part I, IPC. Both the accused, Khedu and Mathura, were charged together under Sections 341/34 307/34 323/34, IPC, besides Khedu was charged u/s 302, IPC. Thus, Khedu has been convicted u/s 304, IPC for the reasons discussed above. Because of the two varied statements of the informant himself, there appears to be a doubt with regard to the blow given by Khedu on the person of Sarju, so Section 304, Part I will also not be attracted. Thus, the conviction u/s 304, Part I cannot be upheld and consequently, it is set aside and the sentence awarded against the offence under this section is set aside.

The next question is whether the offence u/s 307, IPC is proved against the appellant.

The learned counsel appearing for the appellant, as stated above, has argued that the nature of the injury, which is simple, does not attract this section. PW 9, the doctor, examined the informant and found the following injuries :--

"(i) Lacerated wound in amilunar shape at right temporal region size 2-1/2" x 1/2" x 1/3"."

He has also examined the deceased Sarju Mandal, when he was alive and referred him to R.M.C.H. where he died and autopsy was done over the dead-body. There can be no dispute that the temporal portion of the head is the vital part of the body, the Spade is a heavy weapon and injury caused on this portion of the body by such a heavy iron made weapon can cause death in ordinary course, despite the injury caused to the informant being simple. The appellant chose this part of the body to attack, leaving other parts and this shows his intention of causing the death of the informant, who has survived. Thus, I do not find any substance in his argument.

For the reasons discussed above, while I set aside the conviction u/s 304, Part 1, IPC, the conviction u/s 307, IPC is upheld and is hereby confirmed.

Second question is whether the sentence of 7 years is excessive. The learned counsel for the appellant has argued that enmity is admitted and at the time of occurrence, the appellant was aged about 70 years as the occurrence took place in the year 1997 and the trial concluded in the year 1998, when his age was assessed at 72 years and by this time (the time of hearing appeal), the appellant has attained the age of 77 years and therefore, he cannot sustain this rigorous imprisonment of 7 years It was further argued that the appellant was in jail from the date of his arrest, till the date of his filing of the appeal, for about 2-1/2 years.

Consideration of excessiveness of sentence at the time of awarding conviction and sentence is one thing and its appraisal at the time of hearing of the appeal is another thing. Considering the nature of the injuries, age of the appellant, the sentence of 7 years is reduced by 5 years R.I.

Setting aside the conviction u/s 304, Part I, IPC, the conviction u/s 307, IPC and sentence thereon is confirmed; thus, this appeal is dismissed. The appellant must surrender himself before the court concerned within 15 days to serve out the remaining part of the sentence, lest the court concerned will take steps for his arrest. Send back the lower court record at once.