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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.