Mohsin Gaddi @ Mohsin @ Tipo vs State Of Jharkhand

This Criminal Appeal is preferred on behalf of the appellant being aggrieved by the judgment of conviction and order of sentence dated 22.04.2017, passed by learned Additional Judicial Commissioner-VII, Ranchi, in Sessions Trial No.63 of 2016, whereby and wherein the appellant has been convicted for offence under Section 302 IPC. He was sentenced to undergo imprisonment for life with fine of Rs.20,000/- and in default of payment of fine amount, further to undergo imprisonment for six months.

Learned counsel representing the appellant submits that the case of the prosecution cannot be believed as the F.I.R. is against three persons whereas from the evidence, it would be clear that there is no whisper against the other two accused. He further submits that by no stretch of imagination this case can come within the purview of Section 302 IPC, rather at best it is a case under Section 304 Part-II of the IPC. There is no evidence to suggest that the deceased was in a position to give a dying declaration. The fact of dying declaration has been cooked up by the prosecution. As per the counsel for the appellant, since there is evidence of only one blow, it cannot be said that the case would fall under Section 302 of the IPC. He further submits that there was no intention to commit murder of the deceased and it is evident that there was land dispute. The defence has lastly stated that the Doctor who treated the deceased in injured condition has not been examined, which falsifies the case.

Learned A.P.P. representing the State submits that all the witnesses have clearly stated that this appellant has committed murder of the deceased. P.W.-2, who is the widow of the deceased has stated that when she went to the place of occurrence after hearing that the deceased has been stabbed, the deceased disclosed to her that it is this appellant who stabbed him. P.W.-3 is also an eye witness and his presence at the place of occurrence is corroborated by P.W.-2. Similar is the situation with P.W.-4. The Doctor who conducted the post-mortem has supported the prosecution case.

In this case, the F.I.R. is at the instance of Sant Bahadur Tamang. He stated in the F.I.R. that on 29.09.2015 about 06:30 P.M., the accused-Mohsin, Tipu and Gumla who are resident of Gwala Toli, had stabbed Arun Lama in Doranda Risaldar Nagar, Mazaar Maidan, Doranda. The said injured was immediately taken to Pandey Nursing Home and for better treatment he was referred to RIMS, Ranchi. The F.I.R. was initially registered under Section 324, 307 of the IPC but after the death of the deceased, Section 302 of the IPC was incorporated and the Police submitted the charge sheet under Section 324, 307 and 302 of the I.P.C. against the appellant. The Court took cognizance of the offence and committed the case to the Court of Sessions, where charges were framed and trial proceeded as the accused pleaded not guilty.

In  this  case,  total  08  witnesses  on  behalf  of  the prosecution was examined. The Doctor who conducted the post-mortem is P.W.-7. He stated that he found surgical stich wound (1) 20 cm. long 16 stitches over middle part of front of left abdomen near mid line and repair of small intestine and large intestine and mesentery at three sites is there. There is presence of blood and blood clot in abdominal cavity. All the injuries are ante-mortem in nature. The death was caused because of the injury and complications thereof. The report was marked as Ext.4. From the post-mortem report, it is clear that the deceased died because of the said injury. The injury was 20 cm long and the assault had caused injury to the small and large intestine and mesentery. Be it noted that mesentery attaches the intestine to the wall of the abdomen which keeps the intestine in place. Thus, from the evidence, it is clear that the deceased died a homicidal death.

Now, the next question to be considered is on the point of involvement of this appellant and what are the evidence to that effect.

P.W.-1 namely Sant Bahadur Tamang, is the informant. He stated that on 29.09.2015, this appellant has stabbed the deceased on his stomach and this deceased in the injured condition was taken to the Nursing Home of Dr. Umesh Pandey. He had a talk with the deceased in the dressing room of Pandey Nursing Home where he stated that it is Mohsin who had stabbed him. The deceased was taken to RIMS but he died. He stated that the place of occurrence is in the ground next to the Dargah. There were other persons also present. He stated that he was not known to this appellant.

P.W.-2 is the wife of the deceased. She also stated that she received an information that Arun Lama has been stabbed. She ran to the Maidan where there was commotion and saw the informant, Chandan Thapa, Mahendra Chhetri, Uday Kumar Lama. The deceased was stabled on stomach and was lying in a pool of blood. When she started weeping the injured also started weeping and told her that Mohsin (appellant) had stabbed him. She stated that  there  was  curfew  1  –  2  days  back  when  this  appellant threatened the deceased to leave the place when her husband replied that it is their place, they will not leave. The deceased was taken to Pandey Nursing Home and from there to RIMS. She stated that she had not seen the stabbing but the deceased was lying in a pool of blood and she has given her statement to the police. She stated that she could not narrate the boundary of the place of occurrence but stated that the occurrence has taken in the ground. Further, there is nothing in the evidence to disbelieve her.

P.W.-3 is Uday Kumar Lama. He stated that he was walking in the field near Mazaar. His son who is the injured was sitting 10 feets away from him. This appellant came and told him to flee from there. His son stood up, in the meantime this appellant took out a dagger and stabbed him 3 or 4 times on the stomach. The appellant thereafter fled. Then Sant Bahadur (informant) came and wife of the injured also came and they were questioning the injured who stated that it is this appellant who has stabbed him. He was taken to Nursing Home and then to RIMS. He was cross-examined at length. Nothing important could be extracted nor his testimony was shaken.

P.W.-4 is Chandan Thapa. He was also present in the field and was talking with Mahendra Chhetri. He stated that the injured was also there. He was 10 feets away from them. When Mohsin arrived there, there was some hue and cry and Mohsin took out a dagger and stabbed Arun Lama 2 to 4 times on his stomach. He stated that the length of the dagger was longer than the length of the palm. The appellant thereafter fled. On raising alarm, several persons including the wife of the injured also came. He was also cross-examined at length but his evidence could not be shaken.

P.W.-5 namely Sita Ram Yadav was ASI of Doranda Police Station. He identified the formal F.I.R. and the signature on the F.I.R.

P.W.-6 namely Md. Afjal Ali is also the ASI. He stated that he does not know whether the deceased has given any statement before the Doctor.

P.W.-8 Mahendra Chhetri also deposed in the same way as P.W.-4 did, as he was present there with P.W.-4.

The defence examined D.W.-1 namely Md. Javed, who has stated that on the date of occurrence in the evening, he met this appellant.

D.W.-2 namely Jafar Ali Gaddi stated that he was also present in the field but denied that any such type of occurrence had taken place, rather stated that some persons assembled and as Cricket was being played there, someone got injured who was taken to the hospital and this appellant was not present at the place of occurrence.

From the evidence led by the prosecution, we find that there are eye witnesses to the said occurrence. The informant P.W.-1, P.W.-3, P.W.-4 and P.W.-8 are the direct eye witnesses who had seen this appellant stabbing the deceased. P.W.-2 is the wife of the deceased who immediately reached the place of occurrence when the injured had disclosed the name of this appellant to be his assailant. There is no material to disbelieve them.

So far as the statement of defence witnesses are concerned, the same are absolutely not reliable. D.W.-2 stated that Cricket match was being played and someone got injured, which is absolutely false narrative as the injury which was found on the person of the deceased as evident from the post-mortem report is stab injury. The extent of injury also shows that the same cannot be caused from any Cricket match. The ocular evidence of P.W.-1, P.W.-3, P.W.-4 and P.W.-8 coupled with the evidence of P.W.-3 on the point of injury and involvement of the appellant is substantiated by the post-mortem report.

We are not in agreement with the argument of learned counsel representing the appellant that this case falls within the purview of Section 304 Part-II IPC. In this case, we find that the appellant was armed with a weapon and he stabbed on the vital part of the body and impact of the injury was such that the small intestine and large intestine and mesentery also got damaged. It is an admitted position that the deceased was not armed with any weapon. Further from the evidence, it is quite clear that the incident did not happen in the spur of the moment. Further, we find that the appellant acted in a cruel manner. Thus, Exception-4 of Section 300 IPC cannot be applied in this case.

Based on the evidence led by the prosecution, we find that the prosecution, beyond reasonable doubt has been able to prove the guilt of the appellant. The Trial Court has considered all these facts and law in proper manner and has arrived at the conclusion that the appellant is guilty of commission of murder.

We find no material to interfere with the judgment of conviction and order of sentence dated 22.04.2017, passed by learned Additional Judicial Commissioner-VII, Ranchi, in Sessions Trial No.63 of 2016, and the same is hereby affirmed.

Accordingly, this Criminal Appeal stands dismissed.

Pending I.A., if any, stands disposed of.

Trial Court Record be transmitted to the Court concerned along with a copy of this judgment.