Jharkhand High Court
Jai Kumar Mahto And Ors. vs State Of Jharkhand on 20 July, 2005
Equivalent citations: [2005(4)JCR112(JHR)], 2006 CRI LJ (NOC) 130, 2006 (1) AIR JHAR R 130 (2005) 4 JCR 112 (JHA), (2005) 4 JCR 112 (JHA)
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
JUDGMENT Amareshwar Sahay, J.
1. This appeal is directed against the judgment dated 5/8/1991 passed by the Additional Sessions Judge-1, Deoghar in Sessions Trial No. 5/88/14/88 whereby all the appellants have been convicted for the offences under Sections 307/149 IPC and have been sentenced to undergo R.I. for a period of 5 years. In addition to this appellant Nos. 1, 3 and 5 have further been found guilty for the offences under Sections 148 and 323 IPC and have been sentenced to undergo RI for a period of 2 years and the rest all nine appellants have further been convicted for the offences under Sections 147/323, IPC and have been sentenced to undergo RI for a period of 1 year each. The sentences were ordered to run concurrently.
2. The prosecution case in brief is that on 25/8/1984 at about 1 p.m. the informant was weeding out grass in his field bearing plot No. 393 situated in village Dudhania PS Mohanpur, District Deoghar. At about 2.30 p.m. accused Jia Mahto and Jai Kumar Mahto went to him and asked him to get out from the field. Informant Jagdish Mahto retorted that land belonged to his forefathers, and the accused persons had no right to ask him to get away from the field. On this both the accused persons started brick-batting the informant. Being afraid the informant fled and reached in front of his house. Accused Jia Mahto ordered the remaining accused persons to assault Jagdish Mahto upon which all the thirteen accused persons reached there variously armed with bhala, sword, bhujali axe and lathi. Accused Jia Mahto gave a bhala blow to the informant on his left side rib. Accused Jagarnath Mahto gave him a blow of axe on his back and accused Ratan Mahto gave him a blow of bhujali on his head. It is said that the remaining accused persons also assaulted the informant by lathies. The informant raised alarm upon which his mother Tetri Devi came there to whom accused Jai Kumar Mahto gave a blow by sword due to which her left hand was chopped off and thrown away. The informant fell there being unconscious. On his alarm many villagers namely, Shekhar Jha, Bhum Rout, Nunulal Mahto, Mahesh-war Rawani and others came there and witnessed the occurrence. The informant and his mother who were injured were brought to Deoghar Hospital for their treatment. It has been stated that as the informant was unconscious till 26/8/1984 his fardbeyan was recorded at Deoghar Hospital by ASI of Mohanpur Police Station on 26/8/1984 at 6 p.m. On the basis of this fardbeyan a formal FIR (Ext. 1) was drawn. Police took up investigation in this case. After completing investigation, police submitted charge-sheet in this case.
3. The defence case is of false implication due to enmity and litigation.
4. Altogether 14 PWs were examined in order to establish the charges against the appellants. Out of whom PW 1 and PW 14 are formal witnesses, PW 10 has been tendered, PW 5 is the informant, PWs 11 and 13 are the doctors, who had examined the injuries of Tetri Devi and Jagdish Mahto. PWs 3, 4, 6, 7, 8, 9 and 12 are the eye-witnesses of the occurrence. Ext. 3 is the injury report of PW 2 and Ext. 4 is the injury report of the informant (PW 5). Three DWs have also been examined in this case, DW 1 is appellant No. 1 and the rest two DWs are formal in nature. Some documents have also been exhibited. Ext. A is the formal FIR of Mohanpur PS. Case No. 81/84, Ext. B is the fardbeyan of accused Jai Kumar Mahto on the basis of which the aforesaid Mohanpur PS Case No. 81/84 was instituted. Ext. C is the carbon copy of the injury report of accused Jai Kumar Mahto. Ext. D is an Adoption Deed and Exts. E & E/l are the photostat copies of the order sheets.
5. I shall firstly deal with the evidence of the informant PW 5. He has stated that on 25/8/1984 at about 2.30 p.m., while he was weeding out grass from his field bearing plot No. 393, all the appellants came there variously armed with bhala, tangi, bhujali and lathi and started brick-batting him. The informant fled away from there. It is said when he reached in front of his house, all the appellants surrounded him and then appellant No. 3 Jia Mahto ordered the other appellant to kill the informant and he himself gave a bhala blow on the left side rib of the informant. Appellant No. 5 Jagarnath Mahto gave him a tangi blow on his back, appellant No. 2 Ratan Mahto gave a bhujali blow on his head. His mother Tetri Devi (PW 2) came to save him but she was also assaulted by appellant No. 1 Jai Kumar Mahto by means of a sword as a result of which her left hand was completely chopped off. It is said that on alarm many villagers namely, Nunlal Mahto, Bal-miki Thakur, Rajkumar Thakur, Bichhu Thakur, Bisheshwar Rout, Bhum Rout, Maheshwar Rawani and Shekhar Jha came there and witnessed the occurrence. Seeing the villagers it is said that the appellants fled away. It is said that thereafter Nunlal Mahto, Balmiki Thakur and Rajkumar Thakur and others brought him and his mother to Deoghar Hospital where they were treated.
6. PW 2 Tetri Devi is the mother of the informant and she has supported the prosecution case very consistently.
7. The learned counsel for the appellants has submitted that there is vital contradiction in the evidence of PW 2 wherein she has stated that her son Jagdish Mahto was sleeping out-side the door. In the meanwhile he cried out and she came out of the house and then saw the occurrence whereas the informant PW 5 has stated that the accused persons chased him from the field and assaulted him in front of his house. This cannot be said to be a vital contradiction. PW 2 and PW 5 both have consistently stated that the assault took place in front of the house. Therefore, the aforesaid contradiction as pointed out by the defence is insignificant and, as such, is of no consequence.
8. PW 3 Nunlal Mahto is the eye-witness to the occurrence. He has stated that while he was going from his village Dud-hania to Deoghar, he saw the occurrence. PW 4 is another eye-witness who has also fully supported the prosecution case. He has specifically stated that when the appellants started assaulting the informant he reached near the place of occurrence and saw several injuries on the person of the informant. PW 6, PW 7, PW 8, PW 9 and PW 12 are the other eye-witnesses, who have consistently stated that they saw the occurrence and assault by the appellants on PW 2 and PW 5. No vital contradiction has been pointed out in their evidences by the learned counsel appearing for the appellants.
9. PW 11 Dr. Giti Bishwash is the doctor, who had examined PW 2 Tetri Devi on 25/8/1984 and found the following injuries :
(1) Left arm chopped off below 3" the elbow. (2) Complaints of pain all over the body.
The age of the injuries was within six hours and injury No. 1 was caused by sharp cutting instrument and was grievous in nature whereas injury No. 2 was simple in nature and caused by the hard and blunt substance.
10. PW 13 Dr. N.M. Sharma is the doctor, who had examined the injuries on the informant PW 5 Jagdish Mahto and found the following injuries on his person ;
(1) Incised wound over scalp 5" x 1/2"x 1/2"
(2) Incised wound over scalp 4-1/2" x 1/2" x 1/2".
(3) Incised wound on the wrist
(i) 2-1/2" x 1/2" x 1/4".
(ii) 2-1/2" x 1/2" x 1/2".
(4) Incised wound over right forearm 2-1/2" x 1/2" x 1/2".
(5) Incised penetrating wound on the back 2" x 2" x 1/2" with pneumotherax lung tissue protruding through the wound.
(6) Incised wound on the back 5" x 1/2" x 1/2".
(7) Incised wound on the back 3" x 1/2" x 1/2".
(8) Bruise on the back of the left shoulder 3" x 3/4".
This witness has stated that the injury Nos. 1, 2, 3, 4, 6 and 7 were caused by sharp cutting weapons may be by bhujali or tangi whereas injury No. 5 was caused by sharp penetrating weapon may be by bhala and injury No. 8 was caused by hard blunt substance may be by lathi According to this witness injury Nos. 1, 2, 3, 4, 6, 7 and 8 were simple in nature whereas injury No. 5 was grievous and dangerous to life. The age of the injuries was within six hours. The injuries found on the persons of the injured PWs 2 and 5 are consistence with evidences of the PWs.
11. The learned counsel for the appellants has submitted that there was delay in lodging the FIR for which no explanation has been given by the prosecution for such an inordinate delay. It is submitted that the occurrence took place on 25/08/1984 at about 2.30 p.m. whereas the fardbeyan was recorded on 26/08/1984 at 6 p.m. and then the FIR was registered. Therefore, it is apparent that there is inordinate delay. It was further submitted that the prosecution could not establish the manner of occurrence and the manner of assault as stated by the informant in his fardbeyan and also in his evidence as PW 5. It is further submitted that the medical evidence does not support the ocular evidence. It was further submitted that due to non-examination of the Investigating Officer the defence was seriously prejudiced as they could not draw his attention towards the contradiction in the evidence of the eye-witnesses. Lastly, it was submitted that the ingredients of Section 307, IPC was not established by the prosecution and the injuries found on the persons of the injured do not make out a case that the appellants had any intention to kill the informant or his mother. All the injuries except injury No. 5, which was on the back of the informant, were simple in nature and, therefore, the conviction of the appellants for the offences under Section 307, IPC was bad in law.
12. So far the delay in lodging the FIR is concerned, it appears that PW 5 has clearly explained the delay by stating that only after he regained his consciousness he lodged the FIR. In the hospital he some times regained senses and some times became unconsciousness. Therefore, in my view, there is no delay in lodging the FIR and even if there was some delay it was properly explained.
13. The submissions of the learned counsel for the appellants that the prosecution could not establish the manner of occurrence or assault cannot be accepted because from careful scrutiny of the evidences of the prosecution witnesses it is apparently clear that the manner of occurrence as well as assault have fully been corroborated by each of the prosecution witness and by the medical evidence also. It is absolutely wrong to submit that the medical evidence does not support the ocular evidence as a matter of fact the evidences of two doctors fully support and corroborate the statement of the eye-witnesses as well as the statement of the injured witnesses. So far as establishing the ingredients of Section 307, IPC is concerned, I may say that it is a settled law that the intention is a state of mind which cannot be precisely proved by direct evidence but it can be inferred from the surrounding facts of which the relevant considerations are as to what type of weapon was used, what was the nature of injury and on which part of the body etc. it was caused.
14. In the present case, as has been found above, PW 2 Tetri Devi, the mother of the informant, her one hand was completely chopped out whereas the informant was severely assaulted by various dangerous weapons by the appellants. Therefore, it is absolutely clear to find out the mind and intention of the appellants from their acts. The informant received altogether eight injuries on various parts on his person including on the head, which clearly goes to show that the intention was to kill the informant and, therefore, the prosecution has been able to prove the charges under Sections 307/149, IPC against the appellants.
15. Non-examination of the Investigating Officer is not always fatal to the prosecution unless it is shown that serious prejudiced has been caused to the defence due to non-examination of the Investigating Officer but as it appears in the present case that nothing fatal has been shown so as to come to the conclusion that the defence was greatly or seriously prejudiced due to non-examination of the Investigating Officer and, therefore, the argument of the learned counsel for the appellants on this score is rejected.
16. From the above discussions and findings, I am of the view that the leaned trial Court has rightly convicted and sentenced the appellants for the charges and there is no infirmity in it.
17. Accordingly, this appeal is dismissed and the conviction and sentence passed by the learned trial Court is hereby affirmed.