NATHUNI MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 24.6.1987 passed by First Additional Sessions Judge, Motihari in Sessions Trial No. 245/58 of 1982 convicting and sentencing the sole appellant to undergo rigorous imprisonment for life under Section 302, Indian Penal Code.

(2.) BRIEFLY stated, the case of prosecution is that informant Ainul Haque (P.W. 2) with his family members was living in Assam but three months prior to 15.5.1980, which is the date of occurrence, he returned to his native village-Mazurahan, police station--Turkaulia, District--East Champaran and on 15.5.1980 at about 10 a.m., he alongwith his brother Chand Mohammad (since deceased) and father Wahid Mian (not examined) was constructing a hut on a Gair Mazarua land situate adjacent south to the house of one Ganesh Mallah when appellant Nathuni Mahto alongwith co-accused Bhikhari Dewan came there and after abusing the informant retained back. On the same day in the night at about 1 O'clock, the informant alongwith his deceased brother Chand Mohammad and his, father was sleeping outside their incomplete hut when appellant Nathuni Mahto alongwith co-accused Bhikhari Dewan came there and awakened the informant and others by giving kicks. Informant awoke and saw appellant Nathuni Mahto armed with a knife and co-accused Bhikhari Dewan armed with a lathi and they both started assaulting the informant, his father and brother. Co-accused Bhikhari Dewan assaulted the informant by lathi and the appellant threw Chand Mohammad on the ground and gave a dagger blow on his abdomen. In the meantime, one or two other persons also came there and they also started assaulting the informant, his father and brother. At the time of occurrence, Kishori Sah (P.W. 3), Shambhu Singh (not examined) and other villagers came there and rescued the informant, his father and brother. Chand Mohammad became unconscious and he was brought to hospital where fardbayan (Exhibit-2) of informant was recorded by Sub-Inspector Md. Jamiluddin (not examined) on 16.5.1980 at about 7.00 hours. On the basis of fardbayan of informant, formal First Information Report (Exhibit-4) against appellant and Bhikhari Dewan and one and two unknown persons under Section 302/34, Indian Penal Code was drawn. Sub-Inspector Amul Ranjan Sarkar (P.W. 7), who at the time of occurrence, was posted as Officer-in-Charge of Turkolia police station, took up the investigation and visited the place of occurrence, seized blood stained soil and blood stained sack and recorded the statements of witnesses and after completing investigation, submitted charge-sheet against appellant, Bhikhari Dewan, Mokhtar Dewan and Laxmi Mahto. After taking cognizance, the case was committed to the Court of Session where charge under Section 302, Indian Penal Code against appellant and separate charge under Section 302 read with Section 34, Indian Penal Code against appellant, Bhikhari Dewan, Mokhtar Dewan and Laxmi Mahto @ Laxmi Mallah were framed and on denial of charges by appellant and other co-accused persons, they were put on trial. The Court below did not find co-accused persons, namely, Bhikhari Dewan, Mokhtar Dewan and Laxmi Mahto guilty of the charge under Section 302 read with Section 34, Indian Penal Code and, accordingly, acquitted them but it found appellant guilty under Section 302, Indian Penal Code and, accordingly, convicted and sentenced him, as stated above.

(3.) DR. M. P. Singh (P.W. 6), in his evidence, has said that on 16.5.1980 at 4 p.m., he held post-mortem examination on the dead-body of deceased Chand Mohammad and found one incised penetrated wound 2" x 1/2" x abdomen deep in the epigastric region of abdomen. On dissection, he found that spline was cut and there was bleeding in abdominal cavity and diaphragm was cut on the left side and there was blood clot on left side of thoracic cavity and rigor mortis was present. In his opinion, death was due to shock and haemorrhage caused by aforesaid injury which might have been caused by a Chura. He has proved post-mortem examination report which is marked Exhibit-1. From evidence of this witness, it is established that death of deceased was homicidal and he died of injury found on his abdomen which might have been caused by a Chura.