Criminal Appeal (SJ) No.4 of 1994 With Criminal Appeal(SJ) No.6 of 1994 ----------
Against the judgment and order dated 22.12.1993 passed by Shri Ram Prabodh Singh, 2nd Additional Sessions Judge, Munger in Sessions Trial No. 99 of 1987.
Cr. Appeal No. 4 of 1994 Sashi Mandal alias Shashi Kumar, son of Devendra Mandal, resident of village - Kasha Abhaipur, P.S. - Piri Bazar (Surajgarha), District - Munger ........ Appellant Cr. Appeal No. 6 of 1994
1. Ram Kripal Singh, son of Bhagwat Singh, resident of village - Masudan, Police station - Surajgarha, District Munger
2. Aghori Mandal, son of late Jamuna Mandal,
3. Ashok Mandal,
4. Ashwani Mandal,
5. Basistha Mandal, sons of Gaibi Mandal,
6. Shibendra Mandal @ Shibu @ Sheonandan Mandal, son of late Sipahi Mandal, all residents of village - Abhaipur Kasba, Police station - Surajgarha, District - Munger. .......... Appellants Versus The State of Bihar ........... Respondent (in both the appeals)
For the Appellants : Sarvshri Nirmal Kumar Sinha No.3 Arun Kumar, Rakesh Kumar Sinha (Amicus curiae), Advocates For the Respondent : Shri Ajay Mishra, A.P.P.
PRESENT THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA
Dharnidhar Jha, J. Seven appellants in two appeals were put on trial before the Additional Sessions Judge, Munger in Sessions Trial No. 99 2 of 1987 by framing charges under sections 147, 148, 302/34 as also under sections 447, 448 and 341 of the I.P.C. Some charges were joint, however, some were distinctly framed against some of the appellants. The learned trial judge delivered the judgment on 22nd day of December, 1993 and found all the appellants guilty of committing the offences under sections 304 Part II/34 of the IPC and directed each of the seven appellants to suffer rigorous imprisonment for seven years. Each of them was also convicted under sections 148, 447 and 448 of the IPC and without awarding any sentence for their conviction under section 447 IPC to them, the learned trial judge directed each of the appellant to undergo rigorous imprisonment for one year under section 148 of the IPC as also under section 448 of the Code. The sentences were directed to run concurrently.
2. The written report (Ext. 1) of the deceased Rajendra Prasad Mandal drafted by P.W. 1 Ajay Kumar Singh, is the basis upon which the case was registered and the investigation was carried on by P.W. 14 SI Sheo Narayan Mishra, who was the Officer Incharge of Piri Bazar police station. He prepared the injury report, recorded the statement of the deceased Rajendra Prasad Mandal and also inspected the place of occurrence besides recording the statement of witnesses and thereafter, on completion of investigation, submitted charge sheet and after commitment, the accused persons were put on trial.
3. 14 witnesses were examined during the course of trial, out of whom, P.Ws 2, 7, 8, 12 and 13 were declared hostile and P.W. 9 was tendered for cross-examination. P.W. 1, who was also the scribe of the 3 written report (Ext. 1) stated that on hearing halla, he came and saw the accused persons assaulting the deceased and injured him badly. P.W. 3, the wife of the deceased also supported the prosecution case by stating that all the accused persons armed with lathi, tangi and pistol, came to her house and entered into its inner apartment by breaking open the doors and caught hold of the deceased. The allegation of catching the deceased appears against appellant Aghori Mandal, Shashi Mandal and Bashistha Mandal. As regards other appellants, it was stated by P.W. 3 that Ram Kripal Singh, Aswani Kumar Mandal and Ashok Kumar Mandal started assaulting her husband by lathi, barrel of pistol and at the same time continued abusing the family members. Specific allegation which was made in the written report against the appellant Kripal Singh was of giving a tangi blow, which was not supported either by P.W. 3 and her daughters P.Ws 4 and 5. It is generally stated by the witnesses that the deceased was dragged to his bathan where he was assaulted by other accused persons with bricks and stone pieces. P.W. 6 Sadanand Singh does not appear to be an eye witness and he stated that when he came at the house of the deceased, he found the deceased lying in a highly precarious condition. Similarly, the evidence of P.W. 11 Jawahar Prasad Singh is that he found on reaching the house of the deceased that he was lying in a precarious condition and he along with others brought the deceased to the hospital where he was hospitalized and his statement was scribed by P.W. 1. P.Ws 2, 3 and 4 are eye witnesses and their presence could not be doubted on account of being wife and two daughters of the deceased who could be always present inside the house. 4 It is established by evidence that an occurrence did take place in which the deceased was assaulted badly by the accused persons. The above fact that the deceased was badly assaulted by the accused persons gets further corroboration from the evidence of P.W. 10 Dr. Dharmendra Kumar Sinha, who held postmortem examination on the dead body of the deceased on 1.4.1986 when the deceased died on 31st March, 1986, as may appear from Ext. 3, the postmortem report. P.W. 10 found the following antemortem injuries on the dead body of deceased Rajendra Prasad Mandal -
(i) Old abrasion with scale 4" x 2" on forearm in the middle horizontally situated right side of forearm;
(ii) stitched wound left leg measuring about 1" x 1" near ankle joint. On opening and dissection of the wound, laceration of the muscles and tissues with fracture of lower one third of the tibia was found;
(iii) stitched wound 2" x 2" on right leg near ankle joint.
On dissection of the wound, fracture of the lower one third of the shaft of tibia right leg with laceration of the tissues around it, was found;
(iv) Old abrasion with scale on the right forearm about 2"
x 2". On dissection of the portion, haemotoma inside the tissues with fracture of the lower one third of shaft of ulna and radius was found;
(v) Swelling of the left forearm size about 4" x 4". On dissection of the wound, laceration of the tissues and haematoma with fracture of one third of the lower shaft of the radius was found;
(vi) A wound measuring 2" x 2" with scale around the skull near occipital temporal region on the left side.5
4. P.W. 10 stated that the above injuries were caused by hard and blunt substances. It was further pointed out by P.W. 10 that the patient was admitted in Sadar hospital, Munger on 24th March, 1986 vide B.H.T. No. 1098 for treatment of multiple injuries. Later, the patient developed tetanus due to contamination of wound on 31st March, 1986 and for that he was treated and the patient ultimately died on that day, i.e., 31st March, 1986 at 4.30 PM. In the opinion of the doctor, death was due to the disease tetanus and due to exhaustion because of tetanus.
5. Thus, what appears from the opinion of P.W. 10 is that there was no real cause except the disease tetanus for the death of the deceased. In fact, none of the six injuries or the assault which could have resulted in those injuries were the reasons for causing the death of the deceased.
6. It was contended by the learned counsel for the appellants in the two appeals that there being absence of cause of death, it is very difficult to sustain the conviction of appellants under section 304 Part II of the IPC and that becomes very imminently possible in view of the fact that none of the witnesses has specified any particular assault which could have caused the death of the deceased. The conviction of general nature was not sustainable in the light of the evidence available on record and as such, the learned trial judge was faltering in recording the conviction and passing the order of sentence.
7. Shri Ajay Mishra, the learned APP has submitted that the very number of injuries which were six and the impact of the assault 6 which are indicated by the consistent finding of P.W. 10 that the tetanus spread around the ulna and radius of the upper and lower limbs of the deceased was the result of the assault and as such, the accused persons could be assumed acting to deal the assault with the knowledge that they were so imminently dangerous that they, in all probabilities, may cause death. As such, it was contended that the conviction which was recorded by the learned trial judge under section 304 Part II/34 of the IPC was fit to be sustained.
8. It is true that P.W. 10 Dr. Dharmendra Kumar Sinha has deposed that he found as many as six injuries on the dead body of the deceased out of which injuries no. 2, 3, 4 and 5 indicated that there were fractures of different bones of the upper and lower limbs of the deceased. It has also been stated by PW 10 that the injuries were caused by hard and blunt substance. The specific statement of the deceased, which is contained in Ext. 1, which is now admissible under section 32(1) of the Evidence Act on account of the contents of the same being proved by P.W. 1, is that he was given a blow by appellant Ram Kripal Singh with tangi on his left arms, as a result of which a cut injury was caused and it started bleeding. When that statement is compared with the evidence of P.W. 10, it could be found that in fact there was no injury on the left arm of the deceased. In fact, injuries which were recorded on the arm of the deceased were on his forearm, which do not go hand in hand with the allegation but at any rate, the consistency in the oral evidence is there that all the accused persons jointly came to the house of the deceased and after catching hold of him, assaulted him jointly so much 7 so that he was precariously injured. Thus, it could be safely said that even if there is no direct evidence making out specific allegation against any of the seven appellants, it could be said that they were intending to inflict injuries and the injuries which they wanted to inflict upon the deceased voluntarily were found grievous in nature. The evidence both oral and medical, does not lead to any conclusion that the appellants jointly or individually were intending to cause such bodily injuries, which, in all probabilities, must cause death or had the knowledge that the acts were so serious that they must result into such bodily injuries as was likely to cause death. In absence of the evidence of that class, this court finds difficulty in sustaining the conviction of the appellant under section 304 Part II/34 of the IPC. But, considering the evidence on participation of the appellants and the resultant injuries, which were recorded by P.W. 10, it appears a case where evidence sufficiently indicates that there were voluntarily acts conjointly committed by the appellants causing serious grievous injuries upon the deceased by hard and blunt substance, as a result of which they could safely be convicted under section 325 read with section 34 of the IPC.
9. In the result, the conviction of the appellant under section 304 Part II/34 of the IPC is hereby set aside and it is converted into one under section 325/34 of the IPC. As regards the conviction of the appellants under section 148 IPC, the same can also not be sustainable in the light of the indefinite nature of evidence as to who was armed with which weapon. The very written report appears not clear as regards the accused persons being armed with particular weapons or using it. If 8 Ashwini Kumar Mandal and Ashok Kumar Mandal at one stage was said to be assaulting with a butt of pistol, they are again stated to have dealt blows with brick bats on the deceased. Likewise, Ram Kripal being armed with tangi gets no corroboration from evidence or the same pales into doubt by virtue of the evidence of doctor P.W. 10 as he did not find any injury caused by sharp cutting weapon. In that view of the matter, conviction of the appellants under section 148 of the IPC is hereby set aside and the sentence passed upon the appellants is set aside. As regards conviction of the appellants under section 448 of the IPC, that conviction is upheld as there is consistent evidence that they came to the house of the deceased to assault him. The sentence passed upon each of the appellant under section 448 of the IPC is also maintained.
10. Thus, the two appeals are dismissed with the above modification in the order of conviction and sentence as indicated above. The appellants are on bail. They shall surrender to their bonds and serve out the sentence of three years and one year respectively under sections 325/34 of the IPC and section 448 of the Code. If they had been in custody earlier, that period shall be deducted from the above period of sentence.
11. The learned trial court has noted at paragraph 4 of the judgment that appellant Shashi Mandal was aged 16 years on the date of occurrence. The learned trial judge was taking a view that this appellant had never taken a plea of juvenility and as such, he could not be entitled to the benefit of Juvenile Justice (Care and protection of Children) Act. 9
12. Now, the situation has changed by virtue of section 7A of the Act. The plea of juvenility could be agitated by any person at any stage of proceeding, even in revision and appeal and that plea has to be considered by the higher courts.
13. The learned trial judge has himself noted down that the appellant was above 16 years and few months on the date of occurrence. As per the definition of 'juvenile in conflict with law' as contained in section 2(l) of the Act, a juvenile is a person who is alleged to have committed an offence and has not completed 18 years of age on the date of commission of such offence. Thus, this amendment on the definition of 'juvenile in conflict with law' has made the definition retrospective and the date from which the juvenility has to be reckoned is the date of occurrence. The date of occurrence in the present case was 24.3.1986 and on the date of judgment the learned trial judge had assessed the age of appellant Shashi Mandal as 24 years. The learned trial judge has mentioned in paragraph 4 of his judgment that the appellant had stated his age while being examined under section 313 of the Cr.P.C. as 24 years and in his own view also, he was aged 24 years. Thus, he could be said to be below 15 years of age on 24.3.1986, which is the date of occurrence and as such, he could not be directed to undergo the sentence after being convicted in the light of the settled principle of law. As such, his case shall be separated by the trial judge and shall be sent for passing an appropriate order in the light of section 15 of Juvenile Justice (Care and protection of children) Act, 2000.10
14. Let the first and last pages of the judgment be supplied to Sri Rakesh Kumar Sinha, learned amicus curiae, who shall be entitled to a fee on account arguing Cr. Appeal No. 6 of 1994, which shall be paid by Patna High Court Legal Services Committee.
(Dharnidhar Jha, J.) Patna High Court, The 4th April, 2011, NAFR/Anil