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