JUDGMENT
R.N. Sahay, J.
1. By judgment and order dated 5th March, 1985 the learned Additional Sessions Judge, Deoghar convicted these five appellants in Sessions Case No. 126/41 of 1982-83 for offence punishable under Section 302 read with Section 34, I.P.C. and Sections 302/149 and Section 147, I.P.C.
2. The appellants have been sentenced to life imprisonment under Section 302/34, I.P.C. but no separate sentence was passed under Sections 302/149 and 147, I.P.C.
3. It may be stated at the outset that the appellants could not be convicted for an offence under Section 302, I.P.C. twice one with aid of Section 34 and the other with the aid of Section 149, I.P.C. and both are distinct offences.
4. Appellant No. 2 Pacho Mahto has died hence his appeal has abated. Now, we have to examine the validity of conviction of remaining four appellants.
5. The appellants were charged, tried and convicted for the murder of Bishu Mahto at village Chamgadha within P.S. Jagdish, District-Deoghar. The prosecution alleges that all the appellants gave lathis blow to Bishu Mahto resulting in his death.
6. The main allegation is against Narayan Mahto who said to have given lathi blow on the head of the deceased. The blow given by this appellant caused the death of the deceased. The other appellants were said to have given lathi blow after he fell down after he was hit by Narayan Mahto. The medical evidence is very clear on this point. The death was caused due to concussion of brain and shock injury caused on the head of the deceased. The other four injuries, which were abrasion, were simple in nature.
7. At 8 a.m. on 5-6-1981 Tripurari Mahto, the grand son of informant Ramcharan Mahto eased near the house of deceased appellant Pocho Mahto which is situated in front of the house of the informant. Appellant No. 5 protested upon which the deceased and Tripurari assured that they will clean and wash the nuisance. In the meantime, informant came and asked them to get the matter aimicably settled with the help of Mukhia and Sarpanch. The informant asked his son to go to the field. At this point of time, it is alleged that all the appellants came out from their house armed with lathis and surrounded Bishu Mahto. Thereafter, appellants assaulted him on head on the other parts of the dead body of the deceased. Bishu Mahto passed away when he was being taken to hospital. The dead body was taken to Deoghar police station and a case was instituted on the report of Ramcharan Mahto.
8.A. Large number of prosecution witnesses were examined to substantiate the case of the prosecution. Four defence witnesses including appellant Gopal gave a different version of the occurrence. Assault on Bishu Mahto had taken place in presence of Bhola Mahto (P.W. 1), Yamuna Mahto (P.W. 2), Sakti Mahto (P.W. 3), Tetar Mahto (P.W. 6) and informant Ramcharan Mahto (P.W. 14).
9. The learned trial Judge having analysed the prosecution evidence found all the appellants guilty of murder of Bishu Mahto.
10. Learned Counsel for the appellants has argued that none of the so called eye-witness is reliable. It was further contended that the name of Bhola Mahto does not find place in the F.I.R. There is grave doubt about presence of this witness at the time of occurrence. In para 6 of the deposition, the son of the informant stated that while he was ploughing his land he heard hulla and went to the place of occurrence. I think that the contention of the learned Counsel for the appellants is well founded. It is quite possible that he was not witness to the actual occurrence as he gone to the place of occurrence on hulla.
11. Learned Counsel for the appellants contended that witness Shakti Mahto is equally unreliable witness. He deposed that he reached the place of occurrence when altercation was going on between the appellants and the deceased while there is no such case in the F.I.R. This contention is partly true. It is not the prosecution case that all the appellants were taking to Bishu Mahto.
12. Learned Counsel for the appellants contended that this witness had not stated to the investigating officer that Narayan Mahto had assaulted the deceased on the head and thereafter, all the accused-persons assaulted him. This, in my opinion, is not very material contradiction. It was argued that Jamuya Mahto is the cousin of the informant and as such his evidence cannot be accepted. This argument cannot be accepted. There is convincing evidence about his presence. There is no reason to discard this evidence only because he is related to the deceased. This witness has not stated before the police that the appellants entered the house and then came out with lathi. This minor omission cannot be taken to be contradiction. It is apparent from the evidence of Shakti Mahto that he reached the place of occurrence after Marpit was over, hence he could not be held to be an eye-witness.
13. Witness Tetar Mahto is concerned, it was argued that he was not at the place of occurrence at the material time since Bhola Mahto has himself stated in para 7 of the his deposition that Tetar Mahto was not there.
14. Learned Counsel for the appellants next submitted that Ramcharan Mahto (P.W. 14, has changed his version in Court which would lead to the inference that the prosecution story was not true. Learned Counsel has invited my attention to a minor omission in the FIR as compared with the evidence of this witness. It is submitted that now he developed a new story in para 12 of his deposition to the effect that he had talked with the appellant and mother of Tripurari, who were also there.
15. Learned Counsel has further submitted that F.I.R. was sent to Court on 16-6-81 but it was received in the Court on 8-6-81. There was no explanation of delay. It is true that I.O. should have given explanation of delay. In my opinion, considering there facts arid circumstances of the case the whole story cannot be disbelieved since the the occurrence taken place on the road nearby the house of the informant and the appellants.
16. The informant’s son Tetar Mahto has stated in para 5 of the deposition that when he reached the police station the police recorded his statement. It is not clear that the statement of this witness was recorded before or after the F.I.R. was lodged.
17. Learned Counsel for the appellants submitted that the appellants have been implicated because of their support to Milwa Devi, grand daughter of Gangu Mahto. It was further submitted that the whole prosecution case becomes doubtful in view of the fact that no independent person has come forward to support the prosecution case although occurrence took place in broad-daylight.
18. With regard to injuries found on the deceased it was submitted that the doctor had found three simple abrasions and only one crack on frontal bone of the scalp. It is admitted that accused Narayan Mahto gave only one lathi blow on his head. The doctor admitted that there was no depression of skull opens of any abrasion or any blood clot. This shows that the blows were not serious.
19. Learned Counsel for the appellants next submitted that Narayan Mahto could not be held guilty under Section 302, I.P.C. So far as other appellants are concerned, the learned trial Judge has wrongly convicted him under Sections 302/149, I.P.C.
20. I find force in the submission of the learned Counsel for the appellants,
21. The evidence is insufficient that all the appellants had assaulted the deceased with common object to murder the deceased.
22. After giving full consideration to the evidence, I have come to the conclusion that Narayan Mahto is not guilty under Section 302, I.P.C. nor the remaining appellants are guilty under Section 302/34, I.P.C.
23. It is the consistent case that Narayan Mahto gave one lathi blow on the head causing fracture. The evidence is not sufficient to hold the injury was caused with the intention to cause the death of Bishu Mahto. Assault was sequel to a trivial dispute. Injury was caused on the spur of the moment.
24. Narayan Mahto is, therefore, liable, in the facts and circumstances of the case, under Part-II of Section 304, I.P.C. and not under Section 302, I.P.C.
25. The question is whether the accused had knowledge that his act was likely to cause the death. This is a question of fact depending upon the circumstances of the case, weapon used on a vital part of the body .
26. In the instant case, there is clear indication in the evidence that Narayan Mahto assaulted the deceased not with the intention of deadly injury to attract Part-I of Section 302, I.P.C. The act was certainly done with the knowledge that the injury was likely to cause death hence he is liable under Part-II of Section 304, I.P.C.
27. The occurrence is of the year 1981. In the facts and circumstances of the case Narayan Mahto is sentenced to four years’ imprisonment. He has remained in custody during the trial. The period spent in prison shall be set off from the sentence imposed by this Court.
28. So far as, other appellants are concerned, the conviction under Sections 302/149, I.P.C. is set aside.
29. It is well settled that every member of unlawful assembly cannot be held for the action of one member of unlawful assembly unless there is positive evidence that all the members stand a common object. The evidence is absolutely sufficient in this case. Appellants Mohan Mahto, Maharaj Mahto and Gopal Mahto have been wrongly found guilty under Section 302, I.P.C. They are found guilty under Section 323, I.P.C. and sentenced to three months, imprisonment. The conviction of these appellants under Sections 302/149, I.P.C. is set aside.
30. The appeal is accordingly disposed of.
P.K. Sarkar, J.
31. I agree.