High Court Jharkhand High Court

Mathai Marandi & Ors. vs State on 23 October, 2008

Jharkhand High Court
Mathai Marandi & Ors. vs State on 23 October, 2008
                   Criminal Appeal No. 336 of 1990 P
                                    With
                   Criminal Appeal No. 494 of 1990 P
     Against the judgment of conviction and order of sentence dated 26th July
     1990 passed by the 2nd Additional Sessions Judge, Santhal Paragana at
     Dumka in Sessions Trial No. 323 of 1984.

     1. Mathai Marandi
     2. Nandlal marandi
     3. Suniram Marandi.....................Appellants                (In Cr. Appl. No. 336/1990 P)

     4. Mangal Marandi................               Appellant   (In Cr. Appl. No. 494 of 1990 P)

                               Versus
     The State of Bihar (now Jharkhand).........Respondent                (In both the appeals)

                                        ......
     For the Appellants             : Mr. Lakhan Chandra Roy, Advocate.
     For the State                  : Mr. A.P.P.
                                       ......
                                  PRESENT
               The Hon'ble Mr. Justice Amareshwar Sahay
               The Hon'ble Mrs. Justice Jaya Roy

                                JUDGMENT
     C.A.V. on 22/09/2008                          Delivered on 23 /10/2008

Jaya Roy, J.        Since both the aforesaid appeals arise out of a common

     judgment, as such they were heard together and are being disposed of

     by this common judgment. These two appeals have been preferred

     against the judgment dated 26th July 1990 passed in S.T. No. 323 of

     1984 by Shri Jugal Kishore Prasad, 2nd Additional Sessions Judge,

     Santhal Paragana at Dumka whereby the sole appellant Mangal

     Marandi in Criminal Appeal No. 494/1990 (P) has been convicted for

     the offence punishable under Section 302 IPC and sentenced to

     undergo imprisonment for life, whereas the other three appellants of

     Criminal Appeal No. 336 of 1990 (P) namely, Mathai Marandi, Nandlal

     Marandi and Suni Ram Marandi have been convicted for the offence

     under Section 302/34 IPC and sentenced them to undergo R.I. for life.

     The trial court has further convicted Suni Ram Marandi and Nandlal

     Marandi under Section 323 IPC and sentenced them to undergo R.I. for
                                               Cr.Appeal No. 336 of 1990 P with 494/1990 P
                                [2]

three months and both the sentences imposed upon them have been

directed to run concurrently.

2.          Since, no one appeared to press these appeals on behalf of

the appellants and, therefore, we appointed Mr. Sagarmoy Banerjee,

Advocate as Amicus Curiae to assist this Court on behalf of the

appellants in both the appeals.

3.          The brief facts, leading to these appeals are that on

28/06/1982

at about 7.00 P.M. all the four appellants named above

were fencing their maize field situated contiguous west to the house of

Lakhan Besra (deceased), whereupon Lakhan Besra and his two sons,

Sandhu Besra and Dhiba Besra protested, which led to altercation

between them. In the meantime, accused Mangal Marandi assaulted

Lakhan Besra with Katari causing bleeding injuries on his head and

other three above named appellants also assaulted him with Lathi.

They also assaulted Sadhu and Dhiba with Lathi. Family members of

Lakhan Besra brought him to his house where he died soon after the

said alleged occurrence.

It is further stated in the Fardbeyan that there exists a

maize field, measuring about ten Kathas situated contiguous west, i.e.

back side of the house of Lakhan besra. This plot was acquired by

Lakhan Besra from the maternal grandfather of accused Mangal

Marandi in exchange of his own land about twelve years before the date

of the occurrence. But there was some court-case pending between

them. Lakhan Besra was in possession of the said lands from before

the alleged occurrence.

4. Chotu Besra, nephew of Lakhan Besra lodged the

Fardbeyan (Ext. 3) at Masanjore out-post on 29/06/1982 at 8.00 A.M.

and on the basis of the said Fardbeyan the formal FIR (Ext. 4) was

drawn up. After investigation, charge-sheet was submitted against all

the four appellants and they were put on trial after framing charge

against them under Section 302/34 IPC for causing the murder of
Cr.Appeal No. 336 of 1990 P with 494/1990 P
[3]

Lakhan Besra and further for the offence under Section 323 IPC for

voluntarily causing hurt to Sadhu Besra and Dhiba Besra.

5. The appellants pleaded false implication and not guilty and

claimed to be tried.

6. The prosecution has examined 12 witnesses amongst them

PW-9 and PW-10 are Chowkidars, who had carried the corpse of Lkhan

Besra to Sadar Hospital, Dumka on 29/06/1982 for Post Mortem. PW-

1 is the informant but he is not an eyewitness of the said occurrence.

PW-2 Chatur Baski is the son-in-law of Lakhan Besra. He claimed to

have rushed to P.O. on hulla and had seen the said occurrence. PW-3

Dhiba Besra is the son of the deceased who had sustained injury by

Lathi given by Suniram and Nandlal but he was declared hostile. PW-4

Maku Tudu is the wife of Sadhu Besra, she claimed to have seen the

said occurrence. PW-5 Sadhu Besra is another son of the deceased who

also sustained injuries. PW-6 Turi Besra is the daughter of the

deceased who has claimed to have seen the said occurrence. PW-7

Ravan Besra also claimed to have gone at P.O. on hulla and saw the

appellant Mangal Marandi armed with sondha (Katari) and the

remaining three appellants armed with lathi, fleeing away from the

place of occurrence. PW-8 is the Doctor, who did the post mortem. PW-

11 is the Doctor, who examined Sadhu Besra and he proved the injury

report (Ext.2). PW-12 is the Investigating Officer of this case.

7. Challenging the conviction and sentence passed by the trial

court against the appellants, Mr. Banerjee, learned Amicus Curiae

appearing on behalf of the appellants submitted that the trial court has

wrongly convicted the appellants on the testimony of the interested

witnesses, who were on inimical terms. He further submitted that there

are vital contradictions in the evidences of the prosecution witnesses

and, therefore, their evidences were liable to be rejected. He further

submitted that there is no evidence to the effect that prior to the alleged

occurrence there was any meeting of minds and, therefore, the
Cr.Appeal No. 336 of 1990 P with 494/1990 P
[4]

appellants could not have been convicted for the offence under Section

34 IPC.

8. We have considered the submissions made on behalf of the

appellants alongwith oral and documentary evidence. PW-8 Dr. Sultan

Ahmad did the post mortem examination on the dead body of Lakhan

Besra and found following ante-mortem injuries:-

(i) One incised wound 4″x3xbone deep over left periatal

region. On dissection of the scalp it was found that brain

and membrane was lacerated and haemotoma was found

present under the fractured area.

(ii) Incised wound 3″x1/2″ x bone deep over the occipital

region.

(iii) Swelling with eccymosis over left side of face 6″x1″ and

over back of the waist 5″x3″.

(iv) Incised wound 1″x ½ x muscle deep over left elbow.

Injury nos. (i), (ii) and (iv) above were caused by some

sharp cutting weapon such as Katari whereas injury no. (iii) was

caused by hard and blunt substances like lathi.

In his opinion, death was due to shock and hemorrhage

caused by injuries nos. (i) and (ii) above which were sufficient enough

in ordinary course of nature to cause death.

Thus, from the evidence of the post mortem report, it is

clear that death of Lakhan Besra was homicidal in nature.

9. On careful scrutiny of the evidence it appears that PW2,

Chatur Baski, has stated in his evidence that he rushed to the place of

occurrence on hulla and saw accused Mangal Marandi assaulting

Lakhan Besra thrice with katari and rest three accused are said to

have assaulted with lathi. P.W.4, Maku Tudu , wife of Sadhu Besra

has also narrated about the prosecution case in detail. She claims to

have seen the accused ,Mangal Marandi assaulting Lakhan Besra by

katari and the rest three accused persons by lathi . She has further
Cr.Appeal No. 336 of 1990 P with 494/1990 P
[5]

stated that she, with the help of Turi Besra, PW6, brought Lakhan

Besra to his house. P.W.6, Turi Besra has also corroborated the same

in her evidence . P.W5, Sadhu Besra who himself is an injured witness ,

has also stated that Mangal Marandi assaulted Lakhan Besra by katari

and the other three accused persons also assaulted him by lathi. The

other three accused persons also assaulted Sadhu and others by lalthi.

Thus from the evidence of the eyewitnesses PWs- 2, 4, 5

and 6 and corroborative evidence of PW-7, who saw the assailants

fleeing away from the P.O. with weapons in their hands, it has been

established that the appellant Mangal Marandi intentionally assaulted

Lakhan Besra (deceased) with a dangerous weapon like ‘Katari’ on his

head, the most vital part of his body, causing injury on his brain

resulting into his almost instantaneous death. From the aforesaid

evidence of the eyewitnesses, it is also established that remaining three

appellants had also actively participated in assaulting Lakhan Besra

having common intention to kill him. It has also come in the evidence

that two appellants namely, Suni Ram Marandi and Nandlal Marandi

voluntarily caused hurt to Sadhu besra and Dibha Besra at the

relevant time. No doubt that there are some contradictions in the

evidence of the prosecution witnesses regarding the number of blows

given by the appellants but at the same time it has to be borne in mind

that when any murderous assault is taking place then at that time it is

not possible for anyone to count the number of blows hurled by each

assailants. Therefore, any such contradiction as pointed out by the

learned counsel does not affect the prosecution case in any manner.

10. Mr. Banerjee further argued that there was a counter case

lodged by the appellants against the informant party.

In this regard we find that PW-12 the Investigating Officer

has stated in his evidence that he did not find any injury on the person

of any of the accused. He further stated that he had submitted final
Cr.Appeal No. 336 of 1990 P with 494/1990 P
[6]

report in the said counter case. In this view of the matter, this point

has also no legs to stand.

11. Lastly, Mr. Banerjee submitted that the appellant namely,

Mathai Marandi and Nandlal Marandi were aged about 12 years only

on the date of the alleged occurrence, i.e. on 28/06/1982 and,

therefore, they are entitled the benefit of the provisions of the Act then

in force, i.e. Juvenile Justice Act, 1986. We find force in the argument

of the learned counsel in this regard. From the records of this case, it

appears that on 14/03/1990 the trial court has recorded the age of

Mathai marandi and Nandlal Marandi to be 20 years in the statement

recorded under Section 313 Cr.P.C. and in the impugned judgment

dated 26/07/1990 as 20 years. Thus, there is no doubt that in the year

1982 they were not more than 12/13 years of age and, therefore, were

Juvenile as defined under the Juvenile Justice Act 1986. Accordingly,

they are held to be entitled to the benefits of the provisions of Juvenile

Justice Act, 1986 the law which was in force at that time, in view of the

law laid down by the Supreme Court. Reference be made to the cases of

“Upendra Kumar- versus -State of Bihar, reported in (2005) 3 SCC 592,

“Bhola Bhagat-versus- State of Bihar, reported in (1997) 8 SCC 720,

“Gopinath Ghosh-versus- State of W.B.., reported in (1984) Supp. SCC

228 and in the case of “Pradeep Kumar- versus- State of U.P., reported in

(1995) Supp. 4 SCC 419.”

12. In view of the decisions and findings above, we are of the

view that the trial court has rightly held that the prosecution witnesses

have proved the charges against the appellants beyond all reasonable

doubts. Consequently, the conviction and sentence passed by the trial

court against the appellant Mangal Marandi in Cr. Appeal No.

494/1990 P, and against appellant, Suniram Marandi, are hereby

affirmed and their appeal is dismissed. Since they are on bail, their

bail bonds are cancelled and they are directed to surrender before the
Cr.Appeal No. 336 of 1990 P with 494/1990 P
[7]

court below to serve out the remaining period of sentence. The trial

court is also directed to take all effective steps to secure the attendance

of these appellants to serve out the remaining part of sentence in

accordance with law. So far as the appellants Mathai Marandi and

Nandlal Marandi are concerned, their conviction as passed by the trial

court is also confirmed but since they have been found to be Juvenile

on the date of alleged occurrence, they are given the benefit of the

provisions of Juvenile Justice Act 1986 which was in force at the

relevant time and consequently, their sentence as awarded by the trial

court are hereby quashed. With the above modification in sentence

their appeals are dismissed. The two appellants namely, Mathai

Marandi and Nandlal Marandi are on bail. They are discharged from

the liability of their bail bonds.

(Jaya Roy, J)

Amareshwar Sahay, J.

(Amareshwar Sahay, J)

Jharkhand High Court, Ranchi
Dated the 23rd October 2008
NAFR/Mukund-BS