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CASE NO.:

Appeal (crl.) 348 of 2004

PETITIONER:

Hari Mohan Mandal

RESPONDENT:

State of Jharkhand

DATE OF JUDGMENT: 18/03/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P. (Crl.) No. 3784/2003

ARIJIT PASAYAT,J

Leave granted.

Appellant along with four others faced trial for

alleged commission of offence punishable under Section

302, 302 read with Section 120B, 307, 302 read with

Section 109 of the Indian Penal Code, 1860 (for short

the 'IPC'). The Trial Court found the appellant Hari

Mohan Mandal and two other accused persons Chandra

Mohan and Vijay to be guilty. Two others, namely,

Gajadhar Mandal and Rameswar Mahto were acquitted.

While Chandra Mohan was found guilty of offence

punishable under Section 302 IPC, accused-appellant

Hari Mohan Mandal and Vijay Mandal were found guilty of

the offence punishable under Section 307 IPC. Each was

sentenced to undergo imprisonment for life.

In appeal, a Division Bench of the Jharkhand High

Court dismissed the appeal so far as the accused

Chandra Mohan and present appellant are concerned, but

directed acquittal of the accused Vijay Mandal. The

sentence as imposed by the Trial Court was maintained

so far as the accused appellant is concerned.

Prosecution version as unfolded during trial in a

nutshell is as follows:

At about 6.30 a.m. on the date of occurrence i.e.

12.2.1994, the informant along with his uncles, Narayan

Mandal (hereinafter described as 'the deceased') and

Janardhan Mandal (PW-1) had gone for husking the paddy

in the pounding mill of Sikandar Mahto, situated at

Godda Pirpaiti Pitch Road. After their arrival, the

three accused persons Chandra Mohan Mandal, Hari Mohan

Mandal and Vijay Mandal also went there. They had kept

their paddy bag at the Mill on the previous day. Both

the parties entered into an altercation regarding the

husking of their paddy first. The appellant, Hari Mohan

Mandal forcibly put his paddy into the hauler. When

deceased Narayan Mandal objected, all the accused

persons abused him and the accused Chandra Mohan Mandal

brought out a knife from his waist and gave 3-4 knife

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blows on his abdomen. On being injured deceased Naryana

Mandal fell down. When Janardhan Mandal (PW-1) went to

rescue him, then the accused Hari Mohan Mandal took the

knife from Chandra Mohan Mandal and stabbed on his head

and eye. He also fell down on being injured. Accused

Vijay Mandal assaulted by throwing bricks hitting eye

of Janardhan Mandal (PW-1). The bricks thrown at the

informant Guddu Kumar (PW-5) by accused Vijay Mandal

did not hit him. Thereafter, all the accused person

fled away. Narayan Mandal died at the spot. The

injured, Janardhan Mandal (PW-1) was sent to Sadar

Hospital for treatment on a rickshaw. Rameshwar Mahto,

father of mill owner, Sikandar Mahto and Joginder Mahto

(PW-9) saw the alleged occurrence. On alarm, the

villagers assembled there. The informant (PW-5) put the

dead body of Narayan Mandal on a trolley with the help

of others. Fard beyan (Ext. 4) of the informant Guddu

Kumar Mandal (PW-5) was recorded by S.I., R.K.

Bharamchari (PW-11) Officer-in-charge, Godda P.S. on

12.2.1994 at 9.20 a.m. at the P.O. Village Punasia,

P.S. Godda Town. After investigation charge-sheet under

Sections 302, 307 IPC was submitted. Supplementary

charge-sheet under Sections 302, 307, 109/34 IPC was

submitted against Gajadhar Mandal and Rameshwar Mahto,

who were acquitted by the Trial Court.

In order to bring home the accusations 13

witnesses were examined by the prosecution. The Trial

Court found the evidence of injured A-1 and the

informant Guddu Kumar (PW-5) to be cogent and credible.

Placing reliance on their evidence, the Trial Court

found 3 accused persons guilty but found that the

prosecution has not established its case so far as the

co-accused Gajadhar Mandal and Rameshwar Mahto are

concerned and accordingly directed their acquittal.

During trial and in appeal, the evidence of the

eyewitnesses were questioned on the ground of witnesses

being partisan and the alleged suppression of the

genesis of the dispute. The Trial Court and the High

Court did not accept the stand and found the evidence

to be cogent. Strong reliance was placed on the

evidence of injured witness PW-1 and also other

eyewitness PW-5. The High Court found that the

prosecution has established its case, so far as

accused-appellant is concerned and co-accused Chander

Mohan Mandal is concerned. But found evidence to be

insufficient in respect of accused Vijay Mandal.

In support of the appeal, learned counsel for the

appellant submitted that both the Trial Court and the

High Court have not analysed the evidence in the proper

perspective. The so-called eyewitnesses were not

reliable and their version was not believable.

Furthermore, the occurrence allegedly took place

regarding husking of paddy and without any pre-

mediation the alleged attacks were made. In any event,

the offence under Section 307 is not made out, so far

as the appellant is concerned taking into account the

injuries sustained by PW-1, and the life imprisonment

as awarded is harsh.

In response, learned counsel for the State

supported judgments of the Trial Court and the High

Court and further submitted that in view of the

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analysis made and the nature of the injuries proved to

have been inflicted no interference is called for.

We find no scope for any deficiency in the

evidence of PWs 1 and 5 to warrant rejection. The plea

of the appellant that the same is full of blemishes has

not been substantiated. On the contrary, the same has

a ring of truth.

In the factual scenario noted above, it has to be

seen whether Section 307 IPC has application. Said

provision reads as follows:

"Whoever does any act with such

intention or knowledge, and under such

circumstances that, if he by that act

caused death, he would be guilty of

murder, shall be punished with

imprisonment of either description for

a term which may extend to ten years,

and shall also be liable to fine; and,

if hurt is caused to any person by such

act, the offender shall be liable

either to imprisonment for life, or to

such punishment as is hereinbefore

mentioned."

To justify a conviction under this Section, it is not

essential that bodily injury capable of causing death

should have been inflicted. Although the nature of

injury actually caused may often give considerable

assistance in coming to a finding as to the intention

of the accused, such intention may also be deduced from

other circumstances, and may even, in some cases, be

ascertained without any reference at all to actual

wounds. The Section makes a distinction between an act

of the accused and its result, if any. Such an act may

not be attended by any result so far as the person

assaulted is concerned, but still there may be cases in

which the culprit would be liable under this Section.

It is not necessary that the injury actually caused to

the victim of the assault should be sufficient under

ordinary circumstances to cause the death of the person

assaulted. What the Court has to see is whether the

act, irrespective of its result, was done with the

intention or knowledge and under circumstances

mentioned in the Section. An attempt in order to be

criminal need not be the penultimate act. It is

sufficient in law, if there is present an intent

coupled with some overt act in execution thereof.

It is sufficient to justify a conviction under

Section 307 if there is present an intent coupled with

some overt act in execution thereof. It is not

essential that bodily injury capable of causing death

should have been inflicted. If the injury inflicted has

been with the avowed object or intention to cause

death, the ritual nature, extent or character of the

injury or whether such injury is sufficient to actually

causing death are really factors which are wholly

irrelevant for adjudging the culpability under Section

307 IPC. The Section makes a distinction between the

act of the accused and its result, if any. The Court

has to see whether the act, irrespective of its result,

was done with the intention or knowledge and under

circumstances mentioned in the Section. Therefore, it

is not correct to acquit an accused of the charge under

Section 307 IPC merely because the injuries inflicted

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on the victim were in the nature of a simple hurt.

This position was highlighted in State of

Maharashtra v. Balram Bama Patil and Ors. (1983 (2) SCC

28) and in R. Prakash v. State of Karnataka (2004 (2)

Supreme 78)

In Sarju Prasad v. State of Bihar (AIR 1965 SC

843) it was observed in para 6 that mere fact that the

injury actually inflicted by the accused did not cut

any vital organ of the victim, is not by itself

sufficient to take the act out of the purview of

Section 307.

Whether there was intention to kill or knowledge

that death will be caused is a question of fact and

would depend on the facts of a given case. The

circumstance that the injury inflicted by the accused

was simple or minor will not by itself rule out

application of Section 307 IPC. The determinative

question is intention or knowledge, as the case may be,

and not nature of the injury.

The injuries noticed on PW-1 by the doctor PW-6

are as follows:

(a) One incised wound over left supra orbital area

obliquely placed in oozing condition. Dimension

8 cm x 2 cm x 2.5 cm.

(b) One incised wound over left molar area of the

face 6 cm x 2 cm x 2.5 cm in oozing condition.

(c) One abrasion over the left patellar area 6 cm x

4.5 cm.

(d) One bruise over both eye lids on left side 5 cm x

3 cm and 4.5 cm x 2.5 cm.

(e) Illegible at multiple site.

(f) the whole left eye was reddened due to extensive

conjunctival hemorrhage.

The first injury was said to be grievous and the

opinion so far injury no. 6 is concerned, was kept

reserved.

The first injury was certainly on a vital part and

taking into account the injuries on the various parts

of the body, Section 307 IPC has been rightly invoked.

The accused has been rightly convicted for offences

punishable under Section 307 IPC. However, taking into

account the fact that the altercations took place at

the time of husking paddy and there was no pre-

meditation or planning of the attack, custodial

sentence of five years would meet the ends of justice.

It is to be noted that scope for consideration in the

appeal was limited to the nature of offence and

consequently the sentence.

The appeal stands dismissed so far as conviction

is concerned, but is partly allowed to the extent of

sentence as indicated above.