Judgment:
1. Sole appellant Rup Chand Mahto stands convicted for the offence punishable under Sections 302/210 of the Indian Penal Code and sentenced to serve rigorous imprisonment for life under Section 302 of the Indian Penal Code, by the 1st Additional Sessions Judge, Hazaribagh in Sessions Trial No. 163 of 1995, 23 of 1995. However, no separate sentence was awarded for the offence under Section 201 of the Indian Penal Code.
2. Brief facts leading to this appeal are that in the morning of 17.8.1994 informant Kamal Prasad was working in his field when he heard alarms raised by deceased Rameshwar Mahto from his Bart. The informant rushed to the Bari of the deceased to find that the appellant was trying to push the deceased within the earth having caused injuries on his neck and chest. The informant tried to catch hold of the appellant, but he managed to flee away with bloodstained Tangi towards forest. The incident was seen by one Raj Pokhraj Prasad also. According to h'm, this incident took place because- of the dispute between the deceased and the appellant, both own brothers, regarding land.
3. The. matter was reported to Barhi Police, which arrived at the place of occurrence and recorded the statement of P.W. 4, on the basis of which Barhi Police Station Case No. 190 of 1994 under Sections 302 and 201 of the Indian Penal Code was registered against the appellant. Police arrested the appellant, prepared inquest report, and sent the dead body for post-mortem examination. Accordingly, charge-sheet was submitted against him and he was put on trial after framing of charge on 19.9.1995, to which he pleaded not guilty and claimed to be innocent, However, the learned trial Court after examining the witnesses found and held him guilty for the offence under Sections 302 and 201 of the Indian Penal Code and sentenced him as stated above.
4. The present appeal has been preferred mainly on the grounds that the learned trial Court has committed a mistake by relying upon the evidence of interested witnesses. It is also asserted by Mr. B.V. Kumar, learned Counsel appearing on behalf of the appellant, that the learned trial Court has not considered the possibility of false implication due to land dispute. It is further submitted that the evidence of P.W. 1 Raj Pokhraj Prasad does not support the medical evidence and contradicts the evidence of informant. Learned Counsel pointed out that the witnesses have asserted several blows with tangi, however, the doctor has found only two injuries on the dead body. Therefore, the non-examination of independent witnesses creates a reasonable doubt upon the prosecution case. It was also stressed that the evidence of P.W. 2 and P.W. 3 do not support the prosecution case. Therefore, the evidence of P.W. 4, brother-in-law of the deceased should not have been relied to held the appellant guilty. Further criticisms were made against the evidence of P.W. 5, P.W. 6 and the investigating officer. Accordingly, it is submitted that the appellant may be acquitted of the charges.
5. We have anxiously considered the submissions made on behalf of the appellant along with the materials on record. The prosecution has examined altogether eight witnesses in support of its case out of which P.W. 6 M.D, Tiwary is the doctor, who conducted the post-mortem examination on the dead body of Rameshwar Mahto. P.W.7 Arjun Ram is the Officer-in-charge, who has investigated the case. P.W. 8 Chandrama Singh, Judicial Magistrate, 1st Class, has recorded the statements of P.W. 1 and P.W. 2 under Section 164 of the Code of Criminal Procedure. These two witnesses during trial deposed before the trial Court as child witnesses, out of which P.W. 2 has been declared hostile by the prosecution. However, P.W. 1 has supported the prosecution case in details and asserted that the deceased was plucking ladyfingers from his fields when the appellant came there and started ploughing the land. According to him, this led to altercation between both the brothers and after which deceased untied the bullock from the plough. He further asserted that the appellant assaulted the deceased with tangi on his head and pushed the dead body within the earth. This witness has been cross-examined at length. During cross-examination, he has remained Intact on the point of assault made by the appellant on the deceased. This child witness has not been suggested any reason to depose falsely against the appellant. His statement under Section 164 of the Code of Criminal Procedure recorded by P.W. 8 on 28th of August 1994 marked Ext. 7, further goes to prove that this witness is truthful. No reason has been assigned by the defence why this witness not related with the prosecution in any manner has consistently supported the prosecution version.
6. P.W. 3 is the wife of the deceased. She arrives at the place of occurrence and saw the dead body. According to her version, the appellant used to quarrel with the deceased and threaten him with dire consequences. P.W. 4 is the brother-in-law. He arrives at the place of occurrence on hulla raised by the deceased and saw the appellant trying to push the deceased in the earth. The learned trial Court has mentioned that the appellant threatened this witness even in presence of the Court from the dock. This demeanor shows the adamant attitude of the appellant. He has admitted during cross-examination that he has not seen the appellant assaulting the deceased but immediately arrived at the place of occurrence to witness that the appellant was pushing the deceased inside the earth.
7. He further admitted regarding the occurrence he was informed to by P.W. 1 and P.W. 2, P.W. 5 is a witness on the inquest report. P.W. 6 Dr. Tiwary, who conducted the post-mortem on dead body same day and found two incised wounds on neck bone deep caused by Tangi within 10.00 hours. P.W. 7 arrives at the place of occurrence at about 10. a.m. on 17.8.1994 and describes the place of occurrence, a recently ploughed field of two Kattahs and the dead body pushed half inside the earth. He has examined P.W. 1 and P.W. 2 on the spot and got them examined under Section 164 of the Code of Criminal procedure by P.W. 8, the Judicial Magistrate, 1st Class, Hazaribagh.
8. The appellant during his examination under Section 313 of the Code of Criminal Procedure has not taken any specific defence except that he denied the allegation. On consideration of the materials on record and the statements of witnesses, it is apparent that the defence did not take any point regarding enmity between the deceased and the appellant, rather, left it open to the prosecution to prove the charges through eye-witness, P.W. 1 and the first witness arriving at the place of occurrence, P.W. 4 immediately afterwards. They were not suggested even that they were implicating falsely this appellant because of some cogent reason. We do not find any material on record to disbelieve P.W. 1, a child witness as well as the informant though related to have arrived at the place of occurrence just after the occurrence. The learned trial Court has discussed all these facts and circumstances in the impugned judgment vide paragraphs-17, 19 and 20. According to learned trial Court vide para-graph-25, a child witness examined by P.W. 8 earlier under Section 164 of the Code of Criminal Procedure as well as during trial was worth reliance. Having considered the facts and circumstances of the case, we are of the view that the prosecution has been able to prove the charges against the appellant beyond reasonable doubt. We further find no ground to differ with the view taken by the trial Court.
9. At this stage, learned Counsel for the appellant submitted that the appellant, as per evidence on record, has assaulted the deceased without having made preparation in sudden fit of anger. In such circumstances, the appellant having remained in custody for more than thirteen years, may be held guilty under Section 304 Part-1 of the Indian Penal Code and sentenced accordingly. We have already discussed the circumstances in which the appellant assaulted the deceased. We find that the submission of the learned Counsel for the appellant has got merit and the ends of justice would be served adequately if the conviction of the appellant be altered to Section 304 Part-I of the Indian Penal Code and, sentence of the appellant may be modified to rigorous imprisonment for ten years.
10. In the result, the conviction of the appellant under Section 302 of the Indian Penal Code and sentence to serve rigorous imprisonment for life recorded by the learned Court below is hereby altered to one under Section 304 Part-I of the Indian Penal Code and he is sentenced to serve rigorous imprisonment for ten years, i.e. the period already undergone by him in custody. With the modification aforesaid the appeal is hereby dismissed. Let the appellant, who is in jail, be released from custody forthwith, if not wanted, in any other case.