- (1.) EIGHT accused persons including these three appellants were tried together for the charges under Sections 147, 148, 323, 341, 302, 302/149, IPC and Section 24 of the Cattle Trespass Act. Except these three appellants, the rest of the five accused persons were acquitted from all the charges. These three appellants were convicted for the offence under Section 302/34, IPC and were sentenced to undergo RI for life for the said charges. They were further convicted under Sections 341 and 323, IPC and they were sentenced to undergo RI for six months for the offence under Section 323, IPC whereas SI for one month for the offence under Section 341, IPC. So far the charges under Section 24 of the Cattle Trespass Act are concerned, they were acquitted from the said charge.
(2.) IN short, the prosecution case is that on 13.8.1998, Rewali Devi (PW 4) wife of the deceased Chhatradhari Mandal had gone to Dumaria Dhab Tand to see her paddy crops and there she found that in her field, the appellant No. 1 Narayan Mandal was getting paddy crops grazed by his cattle. She protested by Narayan Mandal started abusing her and also began to uproot the paddy crops. His brother Daulat Mandal, who was also there, started abusing and then she came back to her house. When her husband namely Chhatradhari Mandal returned from Giridih in the evening, she narrated the story to him. On 14.8.1998 when her husband had gone for grazing his goat towards Dumaria Dhab Tand and she was in her paddy field, at that time, the accused persons variously armed, started chasing her husband. Her husband started fleeing away and she also ran towards them. It is stated that after chasing for about half a kilometer, the accused persons surrounded her husband in the field of Chito Mahto and then they all started assaulting him by means of 'tangi', 'Rod', 'farst', 'lathi' and 'stones' etc. According to her, Narayan Mandal firstly assaulted her husband by means of rod on the back side of his head and Daulat Mandal assaulted by means of 'tangi', Meghlal Mandal assaulted by "tangi' and Bodhi Mandal assaulted by 'farst' and the wife of Bodhi Mandal and another lady also assaulted him by 'lathi' and 'stones etc. In order to establish the charges, altogether 10 prosecution witnesses were examined, out of them PWs. 1, 3 and 4 are the eye -witnesses to the occurrence, PW 2 is a formal witness, PWs. 5, 6 and 7 have been declared hostile, PW -8 is Dr. K. Kumar, who held autopsy of the dead body, PW -9 is Dr. Binod Kumar Mahajan, who examined the injuries on the informant and PW -10 Ayodhya Rai is the Investigating Officer. According to the doctor, the following injuries were found on the person of the deceased: (i) Incised wounds over medial aspect on the left ankle 3" x 1/4" x bone deep. (ii) Behind left knee lower part 3 -1/2" x 1" x bone deep with transverse clear -cut injury to the major blood vessel and nerves. (iii) Over medial aspect of left knee, left side 2" x 1/2" x soft tissue deep. (iv) Medial aspect of left leg below knee joint 1 -1/2" x 1/2" x bone deep. (v) Lower part of thigh in front of knee joint 2 -1/2" x 1" soft tissue deep. (vi) Lower part of right leg 2" x 1/4" x bone deep (vii) Over lower back in middle at the level of L -5 region 3" x 2" x bone deep. (viii) Occipital region 1 -1/2" x 1/2" x bone deep. On the person of the informant the following injuries were found: (i) Abraision 1" x 1/10" with swelling and tenderness over right forearm 3" above the right wrist joint (posteriarly) black in colour. (ii) Tenderness over left hip, back 3" lateral to midline upper region.
(3.) MR . P.P.N. Roy, learned senior counsel appearing for the appellants after arguing for a while on the merit of the appeal, however confined his argument only with regard to the conviction of the appellants for the offence under Section 302/34, IPC and submitted that in view of the evidence adduced by the prosecution and particularly the injuries found on the persons of the deceased, the conviction of the appellants for the offence under Section 302/34, IPC cannot be sustained. Elaborating his argument he submitted that except the injury No. 8, which was found on the occipital region, all the other 7 injuries were not caused on any vital part of the person of the deceased. Therefore, it can very well be inferred that the intention of the appellants were not to kill the deceased and, therefore, the conviction of the appellants for the offence under Section 302/34, IPC by the trial Court on the basis of the evidence available on the record is bad in law. He submitted that at best the offence committed by the appellants may fall under Section 304 II of the Indian Penal Code.;