BIHARI MAHTO ALIAS KUBRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole appellant Bihari Mahto @ Kubra stands convicted under Section 302 I.P.C. and sentenced to undergo R. I. for life and fine of Rs.1,000/ in default of payment of fine, R.l. for six months. The appellant has also been convicted under Section 27 of the Arms Act and sentenced to undergo R.l. for 3 years and fine of Rs. 1,000/ -, in default of payment of fine, R.l. for 6 months. However, the sentences are to run concurrently.

(2.) THE prosecution commanded with the fardbeyan (Ext -3) of the informant Surendra Prasad (P.W. 8), the son of deceased Brahmdeo Prasad Yadav. The fardbeyan was recorded by S.I. Sandhyarani Mehta of Noorsarai Police Station on the 7th August 1998 at 9.00 A.M. at the place where the dead body was lying. The informant staled in his fardbeyan that his father (the deceased) was cultivating a 3 Katha plot of land belonging to one Hira Sah of Murarpur, Biharsharif for the last 10 years on THEKA. In the relevant year, he had grown JHALRA crop for use as fodder for the cattle. He further stated that, that day (7.8.1998) at 8.00 A.M. he (the informant) along with his father (deceased) had gone to cut the JHALRA crop and after cutting the crop, they were preparing the bundles of the same, at which time appellant Bihari Mahto @ Kubra came there and he asked them as to why they were not getting that land exchanged with his (appellant's) land. At this, the deceased replied how he could get the land exchanged, when he was not the owner of the same. The informant says that on his father's (deceased's) such reply, the appellant threatened him (the deceased) and saying that he (the informant) would show the consequence immediately, he went to his cabin situated in front of the field and came back with a pistol and taking aim on the deceased, fired from his pistol hitting the deceased below his neck and above chest. At that time, the deceased was carrying bundle of JHALRA crop on his head and receiving the fire -shot, he stumbled and fell down in the adjacent Parti field of Ramanandan Gope (P.W. 5). After shooting the deceased, the appellant fled away towards the village. The informant went to his father (the deceased) immediately and he saw that the deceased had received a fire shot injury below his neck and above chest and he had died. The informant also stated in his fardbeyan that his father had also received a long cut injury on his left palm and he guessed that the injury might have occurred in deceased's attempt to ward off the fire shot hitting below neck and above chest or it might have also occurred from the sickle (Hasua) which the deceased was carrying for cutting the JHALRA crop. The informant named Krishna Gope (P.W. 2), Naresh Prasad (P.W. 3), Ramdeo Gope (P.W. 6) and some others as witnesses to the occurrence. On the basis of the fardbeyan, the formal F.I.R. (Ext -4) was recorded at Noorsarai Police Station, being Noorsarai P. S. Case No. 161 of 1998 and, on completion of investigation, the appellant was tried and convicted by the impugned judgment dated 28th September 2000 of the 4th Additional Sessions Judge, Nalanda at Biharsharif passed in S.T. No. 663 of 1998/32 of 1999.

(3.) FOR appreciating the ocular evidence, it is proper to discuss the doctor's evidence first. The doctor (P.W. 9) deposed that on 7.8.1998 at 10:55 A.M., he had conducted the P.M. Examination on the dead body of the deceased and found the following injuries : (i) Rigor mortis absent in upper limbs. (ii) Rigor mortis present in lower limbs. (iii) One lacerated wound on right side of chest near the sterno clavicular joint 1" x 1/2 '' x cavity deep margin of wound blackened, charred and inverted into the wound of entry. (iv) One lacerated wound of left hand of dorsal size. 1 -1/2" x 1" x 1/4" size. On dissection, brain and brain matter intact, chest and thoracic cavity full of blood, fluids and clots, right side of lung perforated, right subclavical artillery and vein ruptured. Right and left chambers of heart empty. Abdomen .... stomach intact contained 2 -3 ozs of semi digested food materials. Liver, spleen, both kidneys, small and large intestine intact. Bladder half full. In the opinion of the doctor the death had occurred due to shock and haemorrhage, caused by above noted injuries. Time elapsed since death was within 24 hours. The doctor also deposed that a metallic substance resembling bullet was extracted from the wound. At Para -2 of the cross -examination, the doctor stated that two injuries caused on the deceased were caused by two different shots. He also deposed that complete digestion takes place in six hours. He further deposed at Para -5 that rigor mortis appears in the dead body after 3 hours of death. It first appears in the upper limbs and it expands in the whole body within 18 -36 hours and then it starts vanishing/disappearing from upper limbs after 12 hours.