(1.) CR. Appeal No. 111 of 1993 filed on behalf of appellants Braj kishore Mandal alias Jai Kishore Mandal. and Suresh Mandal alias Turanti Mandal and Cr. Appeal No. 127 of 1993 filed on behalf of appellant Jawahar Mandal have been heard together as these have arisen out of a common judgment and are being disposed of by this judgment.
(2.) BOTH the appeals have been filed against the judgment of conviction and sentence passed by 2nd Additional Sessions judge, munger passed in Sessions Trial No. 566 of 1988 by which the appellants of both the appeals have been convicted and sentenced to undergo rigorous imprisonment for ten years under Section 307/34 of the Indian penal Code. Appellants Braj Kishore mandal alias Jai Kishore Mandal and Suresh mandal alias Turanti Mandal (appellants of cr. Appeal No. 111 of 1993) have further been convicted and sentenced to undergo rigorous imprisonment for three months under section 323 of the Indian Penal Code. Both the sentences of these two appellants were ordered to run concurrently. One of the accused namely, Laxmi Mandal who also faced trial along with these appellants was not found guilty and has been acquitted from the charges.
(3.) THE prosecution case relates to an occurrence of 2-4-1988. On that date at 2. 00 p. m. , P. W. 4 Manoj Kumar Mandal went to the field with a view to irrigate his field
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by taking water from a well. Accused Jawahar mandal, Turnati Mandal alias Suresh mandal, Jai Kishore Mandal alias Braj kishore Mandal and Laxmi Mandal forbade him to fetch water from the well. When informant Manoj Kumar Mandal (P. W. 4)protested, then Turnati Mandal alias Suresh mandal assaulted on his head by means of lathi causing injury to him. Another accused jai Kishore Mandal alias Braj Kishore mandal assaulted on the left shoulder by hard and blunt substance. Matter was pacified. In the evening, the younger brother of the informant, Anoj Kumar Mandal (P. W. 5)came to his house and knew about the occurrence. He went to the house of Jawahar mandal, Turnati Mandal alias Suresh mandal and Jai Kishore Mandal alias Braj kishore Mandal at 8 p. m. with an intention to settle the matter but he was also assaulted at his head by them and received injuries. Accused Turanti Mandal alias Suresh mandal assaulted on his leg by means of rod. Accused Jai Kishore Mandal alias Braj kishore Mandal assaulted also on his left leg. On hearing the alarm, P. W. 1 Naresh kumar Mandal, P. W. 2 Shankar Mandal and p. W. 3 Umesh Pd. Singh alias Mantu came at the place of occurrence. At that time, the occurrence was taken place. Anoj Mandal, p. W. 5 also brought to Munger hospital for treatment where informant Manoj Kumar mandal (P. W. 4) gave his fardbeyan (Ext. 1)which was recorded by S. I. Shyam Narain prasad.
(4.) THE informant Manoj Kumar Mandal (P. W. 4) was examined by Dr. Sudhir Kumar (P. W. 6) whereas injured Anoj Kumar mandal was examined by Dr. Braj Nandan prasad (P. W. 7). Injured Anoj Kumar Mandal was referred to P. M. C. H. for further treatment. On the basis of the fardbeyan of Manoj kumar Mandal (P. W. 4), a case under Sections 341, 323 and 307/34 of the Indian penal Code was registered against all these three appellants and one Laxmi Mandal. The matter was investigated into by P. W. 8 E. Hembrama. After completion of investigation, charge sheet was submitted under the aforesaid sections of the Indian Penal Code. Cognizance was taken and thereafter the case was committed to the Court of sessions. Charges were framed and were explained to the accused persons who pleaded innocence. Their defence is that at 7. 00 p. m. on 2-4-1988 Manoj Kumar Mandal with four or five persons came and they assaulted father of the appellants and when the appellants intervened, they also assaulted them by means of lathis. In this connection, Suresh Mandal gave fardbeyan which resulted in Kotwail P. S. Case No. 116 dated 3-4-1988 under Sections 147, 448, 323 and 324 of the Indian penal Code against Anoj Mandal, Manoj mandal, Tahkur Mandal, Naresh Mandal and Mantu Mandal.
(5.) THE trial Court considered the evidences of the prosecution and defence and came to the conclusion that on the date and time of occurrence, there was assault by three accused persons. The trial Court exonerated one of the accused namely Laxmi mandal.
(6.) IN order to prove the case, the prosecution examined as many as 9 witnesses. They are P. W. 1 Naresh Kumar Mandal, P. W. 2 Shankar Mandal, P. W. 3 Umesh Prasad singh alias Mantu, P. W. 4 Manoj Kumar singh (informant), P. W. 5 Anoj Kumar mandal, the injured, P. W. 6 Dr. Sudhir kumar, P. W. 7 Dr. Braj Nandan Prasad, P. W. 8, E. Hembram (Investigating Officer) and p. W. 9 another doctor namely, Dr. Dhanush dhari Prasad.
(7.) THE defence has also examined two witnesses. They are Nek Lal Yadav (D. W. 1)and Ram Chartira Paswan (D. W. 2).
(8.) P. Ws. 1 and 3 are sons, of P. W. 2 shankar Mandal, P. W. 1 is also cousin brother of the informant. He has been cited as an eye witness of the occurrence. He is also an accused in the counter case which has been instituted on the basis of fardbeyan of appellant Suresh Mandal (alias Turanti mandal). P. Ws. 2 and 3 are also eye witness of the occurrence. Statement of P. W. 4 was recorded at the hospital in which he stated that on 2-4-1988 at 2. 00 p. m. he was. assaulted. He himself stated that his brother anoj Kumar Mandal went to the house of the accused persons where he was brutally assaulted. P. Ws. 1, 2 and 3 have also given the same version that initially there was assault on Manoj Kumar Mandal in the evening on 2-4-1988 but the matter was not reported to any one but in the evening Anoj kumar Mandal went to the house of the accused persons to report about the occurrence where he was assaulted. These witnesses have been examined and cross-examined in detail. They have remained intact in their evidence that on the date of occurrence, there was assault by the appellants.
(9.) P. W. 6 Dr. Sudhir Kumar has proved some slips of medicine and prescriptions in connection with treatment of appellant suresh Mandal, accused Laxmi Mandal and one Ajhola Devi which have been marked as exts. A to A/7. P. W. 8 E. Hembram in his evidence has stated that the injury reports of the above three persons were also received which have been mentioned in the counter case.
(10.) P. W. 6 Dr. Sudhir Kumar examined injured Manoj Kumar in Sadar Hospital, munger and found following injuries :
(i) Bruise on the left side of forehead 21/2" x 1". (ii) Abrasion on the left scapular region 3-3/4" x " x skin deep. (iii) Abrasion on the right hand terminal phalanx of little finger 1/4" x 1 /6" x skin deep on right thumb terminal phalanx near nail 1-" x 1/4" x skin deep. The doctor found the injuries of the informant to be simple in nature caused by hard and blunt substance such as Danta. The time elapsed was within 12 hours at the time of examination.
(11.) IN the evidence it has come that there was a pacca well in joint possession of the informant and the accused persons which was being used for irrigation by both sides. On the date of occurrence the irrigation from the said well was being done which was the reason of assault.
(12.) IN this case, the occurrence is in two parts. In the first part, at about 2. 00 p. m. on 2-4-1988 the informant Manoj Kumar mandal was allegedly assaulted whose injury has been marked as Ext. 2 and in the second part, on the same date at 8. 00 p. m. Anoj Kumar Mandal was allegedly assaulted by the accused persons when he went to persuade them to settle the matter. Anoj kumar Mandal received injury on his head and became unconscious. According to informant, he was assaulted by the appellants. Dr. Braj Nandan Prasad examined injured anoj Kumar Mandal at Sadar Hospital, munger on 2-4-1988 at 8. 30 p. m. and found following injuries on his person : (i) Lacerated wound on left parietal 1 " x " x scalp deep with swelling 2" x 2" (head injury). (ii) Swelling on left below knee joint 2" x 1" with abrasion. (iii) Swelling with abrasion on right knee below 1" x 1". According to doctor, the age of injury was within 24 hours. Injury No. 1 which was on the head was found to be grievous in nature caused by hard and blunt substance. In view of the seriousness of the patient, he was referred to P. M. C. H. because injury No. 1 was on vital organ. Injury report of injured anoj Kumar Mandal has been marked as ext. 2/1.
(13.) P. W. 9 Dr. Danushdhari Prasad at that time was a resident surgeon in the unit of Prof. B. Jha in the P. M. C. H. He has proved the discharge ticket of Anoj Kumar mandal as Ext. 4 which was filled up by him. His evidence is that Dr. B. Jha has treated the head injury of Anoj Kumar Mandal and now Dr. B. Jha is dead.
(14.) OCULAR as well as medical evidences go to show that there was assault on the date and time of the occurrence. However, the defence version is that the prosecution party were aggressors for which a case was lodged and this case has been lodged as counter blast to that case. F. I. R. of that case has been marked as Ext. B on behalf of the defence. According to the F. I. R. of the counter case, it was lodged under Sections 147, 448, 323 and 324 of the Indian penal Code and the injury received by the injured was simple in nature and not grievous.
(15.) LEARNED counsel for the appellants has submitted that the injuries of the injured were not explained and there was no intention and intervening circumstances to do away with the life of the injured. There is case and counter case and other side were aggressors.
(16.) LEARNED A. P. P. assisted by learned counsel appearing for the informant has submitted that on the date and time of occurrence, assault was committed by the appellants and not only oral rather documentary evidence has been brought on the record to prove the same. The examination of three doctors are sufficient to show that there was assault. It has also been pointed out that the grievous injury on the person of injured Anoj Kumar Mandal has made him useless as after assault on the date and time of occurrence, he cannot work. His movement has also been curtailed. It is further submitted that initially he was driver. His demeanour has been quoted by the trial court in his evidence. He was produced by the prosecution as P. W. 5. The trial Court has noted that there was mark of injury on the portion of the head of that witness and that is the reasoning of tendering him before the Court.
(17.) AFTER hearing submissions of the learned counsel for the parties, I am also of the view that on the date and time of occurrence there was assault by the appellants on two persons i. e. P. Ws. 4 and 5. P. W. 5 had received grievous injury on his head and thereafter he was referred to P. M. C. H. where his treatment continued. Doctor has said that his injury was grievous. So in my opinion, the conviction of the appellants is correct one.
(18.) AS there was only one injury on the head of Anoj Kumar Mandal, P. W. 5, no doubt on the vital part of the body i. e. on the head, but there was no repetition of assault nor there was any intervening circumstances to do away with his life, I am of the view that conviction under Section 307 of the Indian Penal Code cannot be sustained. Accordingly, the conviction awarded to the appellants under Section 307/34 of the Indian Penal Code is fit to be converted into under Section 324/34 of the Indian Penal code. The accused persons have voluntarily caused hurt to P. Ws. 4 and 5 by means qf lathi which is a weapon that may cause death. Therefore, the conviction of the appellants under Section 307/34 of the Indian penal Code is altered into under Section 324/34 of the Indian Penal Code. As the appellants have been now convicted under section 324/34 of the Indian Penal Code, no conviction is required to be given under section 323 of the Indian Penal Code. So the conviction of the appellants under section 323 of the Indian Penal Code is of no effect.
(19.) ON the question of sentence, it has been submitted by learned counsel for the appellants that there was no premeditation and the appellants were the first offenders and no previous conviction was brought on the records. 'so the appellants should have been granted the benefit of the Probation of offenders Act or the benefit of Section 360 of the Code of Criminal Procedure.
(20.) IT appears that this is a case in which occurrence took place twice. First part of the occurrence was not reported to the police. Only second part of the occurrence was reported. So, in my view, there was premeditation and the Court below has rightly not granted the benefit of Probation of Offenders act or Section 360 of the Code of Criminal Procedure. However, the appellants have remained in custody for various period of time. Two appellants namely Braj Kishore mandal alias Jai Kishore Mandal and Suresh mandal alias Turanti Mandal have remained in custody for about a month and appellant jawahar Mandal has remained in custody for more than two months. So, in my opinion, the period already undergone by the appellants and a fine of Rs. 3. 000/- each will be sufficient for the ends of justice. So the sentence of the appellants is modified to the period already undergone by them plus a fine of Rs. 3,000/- (three thousand) each and in default of fine, to undergo rigorous imprisonment for three months. The amount of fine, if deposited, shall be given to injured anoj Kumar Mandal or his successor.
(21.) WITH the above modification in conviction and sentence, both the appeals are dismissed. Order accordingly