Smt. Shunti Devi Wife Of Mohan Yadav; vs State Of Jharkhand on 17 January, 2020

[Cites 8, Cited by 0]

Jharkhand High Court

Smt. Shunti Devi Wife Of Mohan Yadav; vs State Of Jharkhand on 17 January, 2020

Equivalent citations: AIRONLINE 2020 JHA 13, 2020 (1) AJR 759

2. This appeal is directed against the judgment of conviction and order of sentence dated 13.08.2003, passed by learned Additional Sessions Judge, FTC-I, Chatra in S.T. No. 107/2002 by which learned court-below has been pleased to convict all the appellants under Sections 341, 323, 326 and 307/34 IPC and has sentenced them to undergo RI for one month each under section 341 IPC and further undergo RI for one year each under Section 323 IPC, seven years RI each under Section 326 IPC and further seven years RI each for the charge under Section 307 IPC read with Section 34 IPC. All the sentences were directed to run concurrently.

3. The prosecution case as traced out from the written report of Paran Mahto is that on 01.01.2000 at about 4:00 p.m. the ox of the informant Paran Mahto entered into the Khalihan of accused Mohan Yadav. The informant Paran Yadav went there to bring his ox. Accused Mohan Yadav 2 along with his wife Sunti Devi used filthy language against the informant. In the meantime, accused Mohan Yadav gave tangi blow on the head of the informant Paran Yadav. The blood was oozing out from the head of Paran Yadav. On halla, his son Manu Yadav came there with his wife Munia Devi. Accused Bishun Yadav, father of the accused Mohan Yadav also came there with lathi. It is further alleged that Mohan Yadav gave a tangi blow on the head of Manu Yadav with intention to kill him. The blood was oozing out from his head. Manu Yadav fell down on the earth. Thereafter, Bishun Yadav also assaulted Manu Yadav with lathi. Accused Sunti Devi wife of the accused Mohan Yadav also assaulted to Munia Devi with lathi. On halla, Yogeswar Yadav, Dineshwar Yadav and others came there and saved the informant.

4. On the basis of written report, formal FIR was drawn up. Investigation launched. It concluded in the charge-sheet. Cognizance was taken and the case was ultimately committed to the Court of Sessions on 01.04.2002. The accused persons pleaded not guility to the charges and claimed to be tried.

5. Prosecution has examined altogether eight witnesses. They are, "PW-1 Munia Devi;

     PW-2        Paran Yadav;
     PW-3        Dineshwar Yadav;
     PW-4        Manu Yadav;
     PW-5        Yogeshwar Yadav;
     PW-6        Dr. Satendra Pd. Singh;
     PW-7        Bhuneswar Paswan; and
     PW-8        Saryu Pandit (IO).

Prosecution has filed Ext.1 and Ext.1/1 injury report of injured Manu Yadav and Paran Yadav, Ext.2 true copy of Radiological report.

6. PW-2, Paran Mahto, who is informant and injured, has deposed that the occurrence took place two and half years ago. Time was 4:00 p.m.. His ox entered into the Khalihan of Mohan Yadav when he went there to bring his ox accused Mohan Yadav gave tangi blow on his head. Accused Bishun Yadav and Sunti Devi also assaulted him with lathi. His Patohu (Munia Devi) came there then the accused persons also assaulted her with lathi. When his son Manu Yadav came there then accused Mohan Yadav gave tangi blow on his head. His son fell down.

Thereafter, accused Bishun Yadav and Sunti Devi also assaulted his son with lathi. Accused Mohan Yadav assaulted them with tangi with intention to kill them. They went to Huntergunj Hospital. His statement was recorded. The statement was read over to him and he put his thumb impression on the fardbeyan. His son was referred to Gaya and thereafter, he was referred from Gaya to Patna. His son was admitted at hospital in Patna for up to three months. He was senseless and he regained sense after eight days. This witness has identified the accused Mohan Yadav present in the dock. In his cross-examination, he has also deposed that accused Mohan Yadav assaulted with tangi on his head and accused Bishun Yadav and Sunti Devi also assaulted him with lathi. He has also proved the place of occurrence and manner of occurrence.

7. PW-4 Manu Yadav is the son of the informant. He is an injured eye-witness. He deposed that the occurrence took place on 01.01.2000. Time was 4:00 p.m. His ox entered into the Khalihan of Mohan Yadav. His father went there to bring his ox. Sunti Devi assaulted Paran Yadav with tangi. Bishun Yadav also assaulted his wife Munia Devi with lathi. When he reached there accused Mohan Yadav gave tangi (axe) blow on his head with the intention to kill him. He became senseless. He went to Huntergunj Hospital. Thereafter he was referred to Gaya and ultimately he was referred from Gaya to Patna where he was under treatment for up to three months. He further deposed that Sunti Devi and Bishun also assaulted him with lathi. Accused Mohan Yadav assaulted to his father with tangi. He has also proved the place, time and manner of occurrence.

8. PW-3 Dineshwar Yadav claims to be an eye-witness. He has deposed that the occurrence took place on 01.01.2000. Day was Saturday. He was working in his field near the place of alleged occurrence. He reached at the place of occurrence and saw that the ox of Manu Yadav entered into the Khalihan of Mohan Yadav. Manu Yadav went there to bring his ox. Then Mohan Yadav gave tangi blow on Manu Yadav. Sunti Devi also assaulted Munia Devi with lathi. Bishun Yadav assaulted Paran Mahto with lathi. This witness has also identified accused Mohan Yadav present in the dock. In his cross-examination, he deposed that he was working in his field near the place of occurrence. He saved the informant. He has also deposed that he reached at the 4 place of occurrence and thereafter Sateshwar, Kishan Indra Deo Yadav and Banshi Yadav also reached there. When Manu Yadav fell down then accused persons fled away. He also deposed that Mohan Yadav assaulted Manu Yadav with tangi in his presence.

9. PW-1 is Munia Devi. She is an eye-witness to the occurrence. She has deposed that the occurrence took place before two and half years. Day was Saturday. Time was 4:00 p.m. She was at her house. Her ox entered into the Khalihan of Mohan Yadav and Bishun. Her father-in-law went there to bring the ox. Then Mohan Yadav and Sunti Devi started abusing her father-in-law. Mohan Yadav assaulted Paran Yadav with tangi. On halla, she reached there, thereafter Sunti Devi assaulted her with lathi. Mohan Yadav and Bishun Yadav also assaulted her with lathi. She received injury on her leg, head and back. Mohan Yadav also assaulted to her husband Manu Yadav with tangi on the head. Her husband fell down. Accused Sunti Devi and Bisun Yadav also assaulted her husband with lathi. They went to hospital. Her husband was referred to Gaya and thereafter he was referred to Patna. He was admitted at Patna for up to three months. She has identified the accused present in the dock. In her cross-examination, she has also stated that on halla she reached there and accused persons assaulted her father-in-law and her husband and accused persons also assaulted her.

10. PW-5 Yogeshwar Yadav has deposed that the occurrence took place two years back. The ox of Manu Yadav entered into the Khalihan of Mohan Yadav. Paran Yadav went there to bring his ox. He had gone. Later on, he heard that Mohan Yadav assaulted Manu Yadav and Mohan Yadav also assaulted Paran Yadav. He has also deposed that wife of Mohan Yadav also assaulted Manu Yadav. Mohan Yadav and his wife also assaulted the wife of Manu Yadav. He had seen injury on the head of Manu Yadav. This witness also identified the accused persons present in the dock. In his cross-examination, he has stated that he had not seen the occurrence but he has heard about the occurrence.

11. PW-6 Dr. Satendra Prasad Singh has deposed that on 01.01.2000 while he was posted as a Medical Officer, PHC, Huntergunj, Chatra. At about 6:30 p.m. he examined Manu Yadav, aged about 30 years s/o Paran Yadav of village Kanshi Kewal and found the following injuries on his person:

"i. Incised wound 3" x 1 ½" x bone deep on right frontal area of scalp. The patient was incoherent and was vomiting. There was monoplazia of left hand. These all were the symptoms of neuronal lesion due to celebral contusion (head injury), colour was red. ii. Bruise with swelling 4"x3" on the upper part of left leg. iii. X-ray was advised, nature of injury No.1 dangerous for life in ordinary course of nature. Opinion was reserved till X-ray report. Injury No.i was caused by sharp cutting weapon. Injury No.ii was caused by hard and blunt substance. Age of injury within six hours. Marks of identification scar on forehead. The injury report is in his pen and signature, which is marked Ext.-1."

On the same day at 6:40 p.m. he examined Paran Yadav s/o late Jogi Yadav of village Kanshi Kewal and found following injury on his person:

"i. Lacerated wound 1" x ½" x skin deep on the middle of scalp. Colour was red.

Nature of injury simple. Caused by hard and blunt substance. Age of injury six hours. Injury report is in pen and signature which is marked Ext.1/1."

On the same day at 6:45 p.m. he examined Muni Devi and found no injury on her person.

The Doctor has identified the injured Manu Yadav on the basis of marks of identification. In his cross-examination, he has stated that he has already mentioned colour of injury and injury No.i cannot be caused by fall.

12. PW-7 Bhuneshwar Paswan has proved the writing and signature of Dr. J. Kumar, PMCH, Patna relating to Radiological report which was sent to the Court vide Memo No. 2359 dated 18.03.2003 with respect to Manu Yadav. This witness has proved the said writing and signature relating to Radiological report, which is marked Ext.2. The said report of Dr. J.Kumar of PMCH, Patna shows that the X-ray plate was available and Radiologent recorded the finding on the SOD books which read as follows:

"RADIOLOGICAL REPORT:

Skull AP & lateral (XPN .70) shows extensive fracture of skull bones. Left upper leg shows fracture of upper end of tibea. This report shows that the skull bones were fractured and fracture of upper end of tibea of injured Manu Yadav."

13. PW-8 is Saryu Pandit. He is the Investigating Officer. He has deposed that on 01.01.2000 Paran Yadav, his son Manu Yadav and Patohu came with injured condition at Huntergunj police station. While he was posted as ASI at Huntergunj police station, the written report was 6 submitted. The then SI Sri Bipin Bihari Verma ordered to register the case. Accordingly, Huntergunj P.S. Case No. 03/00 was registered. He has proved the endorsement and signature of Sri Bipin Bihari Verma the then SI Huntergunj police station. Which is marked Ext.4. He has also proved the formal FIR(Ext.5). He has further deposed that the investigation was handed over to him. He visited at the place of occurrence. The place of occurrence is village Kanshi Kewal in the front of house Paran Mahto, which was a wheat field which belongs to accused Bishun Yadav. He has proved the boundary of the place of occurrence in which East- field of Bishun Yadav, West-house of Paran Yadav, North-wheat field of Paran Yadav and South-field of Bishun Yadav thereafter field of Paran Yadav. The second place of occurrence is Khalihan, which is 100 yards away North-East from the first place of occurrence in which the field of Paran Mahto in North, Khalihan of Bishun Yadav in South, Gharni river in East and Arhar field of Bishun Yadav in West. He has further deposed that he recorded the statement of informant and also recorded the statement of witnesses, namely, Yogreshwar Yadav, Dineshwar Yadav, Siteshwar Yadav, Manu Yadav and Munia Devi. He has also received the injury report and also got direction under supervision of the higher authorities. He arrested accused Bishuni Yadav. Injured Manu Yadav was referred to Patna for treatment but the report was not received by him. He has found the case true and submitted the charge-sheet on the basis of the statement of the witnesses, injury report and under the supervision of the higher authorities. He has proved the charge-sheet which is marked Ext.6. Arguments of learned counsel for the appellants:

14. Learned counsel for the appellants has submitted that from the facts and evidences of the case it is easily seen that no offence under Section 307 IPC or 326 IPC can be made out. Learned counsel further says that there is no premeditation on the part of the accused persons or the appellants. This is so because the entire incident happened only when the informant's ox had strayed into the agricultural fields of the appellants' side and on being taken it back by the victim the said altercation took place then and there resulting in such injuries, so it was basically an incident that occurred on the spur of the moment without much thought and planning having gone into it and therefore, there has 7 been no intention to commit any such offence that would come within the purview of either Section 307 IPC or Section 326 IPC and may be it could also be said that when there is no intention, there is no genuine cause of action in the sense that he was trying to protect his agricultural fields from animals or the ox from the informant's side and then some minor altercation took place.

15. Learned counsel for the appellants has referred to the evidence of PW-2 Paran Mahto and pointed out that from his evidence or his deposition it is apparent that the only significant injury is on the body and person of Manu Yadav. Injuries on Paran Mahto and his daughter-in-law (Bahu) can be discarded as of not being of much significance. Therefore if at all any case is sought to be made out it may be based on the injury of Manu Yadav. From the evidence of PW-2 in para-5 it has also been said that Manu Yadav was initially also not there at the place of occurrence so no injury on him could have been inflicted by the appellants. Manu Yadav came there on hearing hulla and was hit by tangi by Mohan Yadav on his head.

16. Learned counsel for the appellants has also submitted that the informant has not come with clean hands because it is said that Mohan Yadav had assaulted him with Tangi (Axe). However, the Doctor who examined the injured has not found injury of any sharp cutting weapon which was inflicted on the informant. Doctor has found only two simple injuries. Informant in his FIR has said that Mohan assaulted on the head of Manu Yadav. However, as per the evidence of PW-2, this is contradicted because it indicates that Manu Yadav was not there at the time of such occurrence rather Manu had gone to thresh the rice grains but Manu came there on hearing of hulla.

17. Learned counsel for the appellants also argues that as per the fardbeyan it is claimed that Munia Devi has also been assaulted. The Doctor has found no injuries on the body and the person of Munia Devi. Therefore, there is significant contradiction in the manner of occurrence as sought to be introduced by the informant and the Doctor's evidence. The Investigating Officer also did not find any blood stained cloths nor seize any blood stained cloths from the place of occurrence.

18. Learned counsel for the appellants has also argued that since there are three accused persons, who are now appellants herein, the 8 injury i.e. considered as being dangerous for life cannot be solely attributed to Mohan Yadav since the allegations in the fardbeyan are against all the three accused or appellants.

19. Learned counsel has also referred to the evidence of PW-3 Dineshwar Yadav, who seems to be an independent witness in the sense that he is not related to the informant's party. Before the appellants tried to demolish the evidence of PW-3 by arguing that no other prosecution witness or any one as such has tried to say that PW-3 Dineshwar Yadav was present at the place of occurrence when the incident or crime took place.

20. Learned counsel for the appellants has also pointed out that PW-3 Dineshwar Yadav has deposed that Bishun Yadav assaulted Paran Yadav with lathi, other prosecution witnesses have deposed that Bishun Yadav assaulted Manu Yadav, Paran Mahato and Munia Devi only with lathi. So he had no vicious intention to inflict any grievous injury.

21. Learned counsel for the appellants has also cited two judgments i.e. (i) State of Haryana versus Balkar Singh and others, reported in (2009) 11 Supreme Court Cases 592 and (ii) Bhirgun Mian & Ors. versus The State of Bihar, reported in 2012 4 EastCrC 533 in support of his arguments and that at least benefit of doubt should be extended to the appellants. Counsel therefore says that for all the aforesaid reasons the conviction of the accused cannot be sustained and upheld. Arguments of counsel for the State:

22. Mr. Gouri Shankar Prasad, learned counsel for the State, on the other hand, has argued that due to the injuries on at least two prosecution witnesses including the informant and the corresponding medical injury report of two persons makes it very unlikely that no occurrence took place, therefore, the occurrence of the incident cannot be denied. Learned counsel also argues that the manner of occurrence has also been described by the other prosecution witnesses into an extent. Learned counsel also argues that in this incident which is just done near the homes of both the parties. It is natural that the family members will be the witnesses and this is quite natural because of the proximity in relation. Therefore, it cannot be said that these prosecution witnesses are interested witnesses or family witnesses.

23. Learned counsel for the State also argues that the status of PW-3 Dineshwar Yadav cannot be denied that he is an independent witness and he was very much present and therefore his evidence or deposition carries significant amount of weight. Learned counsel further submits that it is difficult to accept that the evidence of the injured witnesses are false, fabricated and manufactured. It is well accepted that the evidence of injured witnesses are more reliable than an ordinary eye witnesses. It is well known also and accepted that an injured witness would not go out of his way to make false accusation against persons who did not really commit the offences and the injuries involved. It is the natural action of any person so assaulted to the accused person who had actually committed the deed and therefore, the injured witnesses are very much useful and reliable witnesses. Counsel for the State also argues that the IO had also inspected the place of occurrence and he had recorded statements under Section 161 Cr.P.C. and therefore, after compilation of investigation then the charge sheet was submitted. Therefore, when the IO has made inspection of the place of occurrence, he has fully proved that the place of occurrence exists and it was there where the altercation had taken place.

FINDINGS

24. Having heard both the counsels and having gone through the records of the case and the evidences, this is a case in which convictions have been imposed on all the appellants under Sections 341, 323, 326 and 307/34 IPC and they have been sentenced respectively for separate period under different sections, all sentences to run concurrently. After going through the evidences, it is apparent that the incident occurred only due to the ox of the informant Paran Mahto having entered into the khalihan of the accused Mohan Yadav. It can be said that if the ox had not entered into the khalihan of the accused Mohan Yadav then the incident may not have happened at all and therefore, it is felt that intention that is required under Section 307 IPC does not seem to be made out for the conviction under the said section. However, there are injuries that have been inflicted on two persons after three persons were examined and they cannot be ignored.

25. It is seen that this is a case where three persons had claimed to be injured i.e. the informant Paran Mahto who is PW-2, his son Manu Yadav 10 who is PW-4 and the wife of Manu Yadav who is Munia Devi or PW-1. The Dr. Satendra Pd. Singh, who is PW-6 had examined all the three victims and had found injuries on two of them i.e. on Paran Mahto and Manu Yadav. The Doctor had found on Paran Yadav an incised wound of 3" x 1½", bone deep on right frontal area of scalp, that is apart from other injury. X-ray was advised on this injury which the Doctor has also observed as being dangerous for life in ordinary course of nature. The opinion is reserved till X-ray report was received. Subsequently, when the X-ray report was received it was indicated that there was extensive fracture of skull bones.

26. The injury on Paran Yadav was a lacerated wound 1"x 1/2", and skin deep on the middle of the scalp. We also see that two persons had seen the injuries on his head.

27. As per the prosecution story regarding the manner of occurrence after the ox had entered into the khalian of the accused, Mohan Yadav had assaulted with Tangi on the head of the informant Paran Yadav and blood had oozed out from his head. On alarm, the son of Paran Yadav, Manu Yadav had reached there along with his wife Munia Devi and then Bishun Yadav had arrived there with Lathi. Thereafter, Mohan Yadav had assaulted Manu Yadav with a Tangi blow on his head, and blood has oozed out from the head. He also assaulted Manu Yadav with Lathi, and it is said that Sunti Devi had assaulted Munia Devi with Lathi. When one goes to the evidence of PW-2 Paran Mahto and of PW-4 Manu Yadav the manner of assault regarding who had assaulted with Tangi and who had assaulted with Lathi and on whom the assaults were made are varied from the initial case as made out in the FIR, but it is clear from the evidences available on record in all the depositions and the FIR that Mohan Yadav assaulted Manu Yadav with tangi. Since the injuries are there, it cannot be said that the incident had not taken place. The discrepancies in the manner of assault do not detract from the assault or make out a case that no assault was made by the accused persons. There is however one element that seems to be common throughout and that is even in the FIR Sunti Devi is only said to have assaulted Munia Devi with Lathi and this has also been repeated by PW-3 Dineshwar Yadav who also deposed that Sunti Devi assaulted Munia Devi with Lathi and finally, Munia Devi has also said the same. But she in her deposition 11 said that Mohan and Bishun also assaulted her with lathi. What is to be noted is that PW-3 Dineshwar Yadav who does not seem to be a member of the family has also said this because he came there during the incident. Therefore, when it has already been said that the occurrence only happened due to the ox straying into the khalihan of the accused and if the ox had not done so the incident might not have occurred, therefore, intention under Section 307 IPC is already omitted. As far as Sunti Devi is concerned, she was present on the place of occurrence and though she is said to have participated it is only indicated by at least three witnesses that she had only assaulted Munia Devi with Lathi and therefore, offence only under Section 323 IPC may be attributed to her, moreover, the Doctor also has opined that there was no injury found on the person of Munia Devi. She has anyway served about four months one day in custody already.

28. Regarding the other two appellants, it has been indicated that Bishun Yadav has already passed away as per the report of the officer- in-charge of Hunterganj Police Station, District- Chatra dated 24.08.2018. The reading of the evidences would indicate that Mohan Yadav apparently was the main assailant and given the nature of the injuries that have been indicated he cannot be absolved of Section 326 IPC. Section 323 IPC being minor in nature as compared to Section 326 IPC may not require to be taken into consideration. The other Section under which they have been convicted is Section 341 IPC and this also may not be a very relevant Section given the fact that the confinement was not deliberate but was rather a result of the ox straying into the premises or khalihan of the accused wherein the incident occurred. However, since conviction seems to be pointed towards Section 326 IPC as far as Mohan Yadav is concerned and Section 323 IPC as far as Sunti Devi is concerned, it is not relevant to deal any further on Section 341 IPC.

29. Based on the aforesaid reasonings, I hold that the conviction of appellant No.2 Mohan Yadav will suffice if he is convicted under Section 326 IPC only, while the convictions under other Sections are not upheld. As far as Sunti Devi goes she stands convicted only for the offence under Section 323 IPC. Regarding sentence, it is seen that Mohan Yadav has already spent at least two years thirteen days in custody and 12 therefore, the period already spent by him may be considered as sentence already and sufficiently served and no further period of sentence is required to be undergone by him. Similarly, it is seen that Sunti Devi has already spent four months one day and therefore, the period which she has already spent shall be considered as sentence already and sufficiently served and no other further sentence is imposed upon her. Both are set free from the liabilities of their bail bonds.

30. Accordingly, the appeal of Bishun Yadav stands abated while the appeals of Smt. Sunti Devi and Mohan Yadav are dismissed but with the aforesaid modifications in conviction and sentence.

(Ratnaker Bhengra, J.) S.B.-NAFR

Unlock Advanced Research with PRISMAI

Jharkhand High Court