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CASE NO.: Appeal (crl.)  411 of 1997

PETITIONER: Chowa Mandal & Anr.                              

RESPONDENT: State of Bihar (Now Jharkhand)                   

DATE OF JUDGMENT: 04/02/2004

BENCH: N Santosh Hegde & B P Singh

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

       Two of the original 6 accused persons who were charged  for offence punishable under section 302 read with 34, 109,  148, 147, 323 IPC before the 1st Additional Sessions Judge,  Giridih are before us in this appeal challenging their conviction  and sentence imposed on them by the said trial court as  confirmed by the High Court of Judicature of Patna, Ranchi  Bench. Brief facts necessary for the disposal of this appeal are  as follows :

       The appellant herein and 4 other accused persons formed  themselves into an unlawful assembly armed with lathis and  Tangi on 23.6.1980 and went to the field of Ugan Mandal PW-4  when said PW-4 and his cousin Shankar Mandal were  ploughing the land situated on the Eastern side of village  Karmatand, P.S. Birni, District Giridih and picked up a fight  with the said 2 persons. Being afraid of attack on themselves  said Ugan Mandal and Shankar Mandal ran away from the said  place. The prosecution further alleges that after the said   persons ran away, the accused returned back to the village. On  the way they met Jhalar Mandal uncle of abovesaid Ugan  Mandal who happened to ask them what the matter was. Being  enraged by such a question from Jhalar Mandal the appellants  herein allegedly hit him on his head with a lathi as a result of  which he received injury on his head and fell down. Prosecution  then alleges that all other accused persons also assaulted said  Jhalar Mandal which was noticed by Ugan Mandal and on his  raising an alarm his son Dhanu Mandal and nephew  Bhuneshwar Mandal also reached the place and they were also  assaulted by the accused. When other villagers came to the  place of occurrence the accused persons went away. Said Ugan  Mandal and other relatives of Jhalar Mandal then took the  injured Jhalar Mandal to Giridih hospital where he died. Based  on a complaint lodged by Ugan Mandal after completion of  investigation 6 persons including the 2 appellants in this appeal  were charged for offences mentioned hereinabove. The  Sessions Court after trial came to the conclusion that the  prosecution has proved the major charge of section 302 read  with 34 IPC against the appellants herein and convicted  and  sentenced them to imprisonment for life, while it found the  other 4 accused persons guilty of offence under section 302  read with section 109 IPC and sentenced them to undergo  imprisonment for life on that count while those accused persons  were also found guilty of offences punishable under sections  323, 147 and 148 IPC but no separate sentences were awarded

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on those counts. In an appeal filed against the said judgment  and conviction before the High Court of Patna at Ranchi Bench,  the High Court came to the conclusion that the prosecution has  failed to establish its charge against other accused, accordingly,  conviction and sentence imposed on them by the trial court was  set aside while it found the two appellants before us guilty of  offence punishable under section 302 read with 34 IPC and  confirmed the sentence of imprisonment for life imposed by the  trial court. It is against the said judgment of the High Court the  two appellants are before us in this appeal.

       We have heard Mr. A. Sharan, learned senior counsel for  the appellants and Mr. Ashok Mathur, learned counsel for the  respondent-State and perused the recods. So far as the incident  in question which led to the death of Jhalar Mandal on  23.6.1980 is concerned, we are in agreement with the findings  of the two courts below. We are also in agreement with the  finding of the High Court that it is the injury caused on the head  of the deceased which led to his death.

       Learned senior counsel appearing for the appellants,  however, contended assuming that the death of the deceased  was caused by the injury suffered by him on his head said act of  the accused persons cannot be construed as an act of  committing murder or even culpable homicide not amounting to  murder, and at the most it could be an act of causing grievous  hurt. In support of this argument of his, he relies on the finding  of the High Court itself that none of the accused persons  including the appellants herein had any motive or enmity  against the deceased and the incident in question had occurred  due to the provocation caused by the deceased while the  accused persons were returning back to the village therefore at  the most the act of the appellants could be one of causing  grievous hurt and nothing more than that. In support of this  contention of his learned counsel relied on the following  observations of the High Court :

       "I have carefully gone through the  submissions of the learned counsel for the  appellants. There is no doubt on the fact that  the occurrence happened and in which Jhalar  Mandal died. The defence has also not  disputed this point specifically. Now the  submission of Mr. Dayal that the accused  persons actually went with common  intention either to assault or to commit  murder of the informant and others, but  when they escaped, on the way back they  assaulted the deceased and caused his death  and, therefore, the elements of common  intention is missing in this occurrence  cannot be discarded. From the evidence of  the doctor (P.W.7), it appears that Jhalar  Mandal had only the injury on his head,  which is said to be the cause of his death."    

       Having perused the entire evidence on record, we are  inclined to accept the argument addressed by learned counsel  for the appellants. From the evidence on record, it is clear that  at the time when the second incident took place which led to the  death of the deceased even according to the prosecution, none  of the accused persons was motivated by any particular desire  to attack Jhalar Mandal. The incident in question occurred on  the spur of the moment without there being any intention of  causing death or of causing such injury as they knew was likely

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to cause death, and was an act arising out of the enmity they  had with the nephew of the deceased and aggravated by the  unwanted questioning by the deceased. From the evidence it is  clear that the act of the appellant cannot be construed as an act  other than causing grievous hurt. In this background, we agree  with the learned counsel for the appellants that in the absence of  any motive, intention or knowledge as to their act which led to  the death of the deceased the appellants can only be held guilty  for an offence punishable under section 326 read with 34 IPC  since there is material to show that these 2 appellants did wield  their lathis out of which at least one blow, if not both, struck the  head of the deceased causing him grievous injury which  ultimately led to his death.

       In view of the above finding of ours we think the High  Court was not justified in convicting the appellants for offence  punishable under section 304 read with 34 IPC while the  appropriate conviction would have been one under section 326  read with 34 IPC. We accordingly modify the conviction and  sentence recorded by the High Court and convert it to one under  section 326 read with 34 IPC and direct the appellants to  undergo 5 years’ RI on that count. Sentence undergone, if any,  shall be given remission. The appellants are on bail. Their bail- bonds are cancelled. They shall surrender and serve out the  remainder of the sentence.          The appeal is allowed partly.