Jharkhand High Court
Jobraj Mahto vs The State Of Jharkhand on 17 December, 2021
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 421 of 2010
With
Cr. Appeal (S.J.) No. 425 of 2010
(Against the judgment of conviction and the order of sentence, both dated
16.04.2010, passed by the learned 1st Additional Sessions Judge, Koderma in
Sessions Trial No. 446 of 1998)
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1. Jobraj Mahto, son of Late Dipan Mahto
2. Rajendra Mahto, son of Shri Jobraj Mahto
3. Urmila Devi, wife of Shri Rajendra Mahto
4. Jhalia Devi, wife of Shri Basudeo Mahto
5. Revali Devi, wife of Shri Jobraj Mahto All residents of village Badaki Dhamrai, P.O. & P.S.-Jai Nagar, District Koderma. ...... ..... Appellants [In Cr. A. (S.J.) No. 421 of 2010] Basudeo Mahto, son of Shri Jobraj Mahto, resident of village Badaki Dhamrai, P.O. & P.S.- Jai Nagar, District Koderma.
...... ..... Appellant [In Cr. A. (S.J.) No. 425 of 2010]
-Versus-
The State of Jharkhand ...... ..... Respondent
[In both cases]
Heard through Video Conferencing
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PRESENT
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Pramod Kumar, Advocate
[In both cases]
For the State : Mrs. Vandana Bharti, APP
[In both cases]
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C.A.V. on 09.04.2021 Pronounced on 17/12/2021
Heard Mr. Pramod Kumar, the learned counsel for the
appellants as well as Mrs. Vandana Bharti, the learned APP for the State.
2. Report of Superintendent of Police, Koderma, vide memo no. 51 dated 01-02-2020 has been received stating that the Appellant no.1 Jobraj Mahto has died and letter to this effect of mukhiya of village- Badaki Dhamrai, Block-Chandwara, District-Koderma has been annexed. Hence, [2] appeal of Appellant no.1 Jobraj Mahto, stands abated.
3. Both the criminal appeals are preferred against the judgment of conviction and the order of sentence, both dated 16.04.2010, passed by the learned 1st Additional Sessions Judge, Koderma in Sessions Trial No. 446 of 1998, whereby and whereunder, all the appellants were convicted under Sections 147, 341 and 323 of the Indian Penal Code and the appellant Basudeo Mahto was further convicted under sections 324, 326 and 307 of the Indian Penal Code. All the appellants were sentenced to undergo SI for one month each under Section 341 of the Indian Penal Code; RI for one year each for the offence under Section 323 of the Indian Penal Code and RI for one year each for the offence under Section 147 of the Indian Penal Code. Appellant Basudeo Mahto was further sentenced to undergo RI for two years under Section 324 of the Indian Penal Code; RI for three years for the offence under Section 326 of the Indian Penal Code and RI for five years for the offence under Section 307 of the Indian Penal Code. All the sentences were directed to run concurrently and the period undergone in custody during investigation and trial was directed to be set-off.
4. The case of the prosecution, in brief, as per fardbeyan dated 02.07.1996 of the informant PW-4 Lakho Mahto, recorded at 20:30 hours at Koderma Sub-divisional Hospital is that informant on 02.07.1996 at about 06:00 am in the morning was sowing maize in his land situated in the simana (boundary) at village Belkhara along with his son Kokil Mahto (PW-3) and wife Sahodari Devi. At about 03.00 pm Jobraj Mahto, Rajendra Mahto, Basudeo Mahto, Revali Devi, wife of Basudeo Mahto and wife of Rajendra Mahto armed with sword, farsa and tangi came to his land and asked as to why he had dashed his fencing upon which the informant replied it was fallen from before. In the meantime, Basudeo Mahto assaulted Kokil Mahto with sword on his neck and in order to protect himself Kokil Mahto sustained injury on his finger and Kokil Mahto fell down on the ground. Informant and his wife tried to save his son upon which other accused persons assaulted them with farsa and tangi as a result they were also injured. Informant further stated that incident occurred due to land dispute.
5. On the basis of the fardbeyan of informant formal FIR was registered as Jai Nagar P.S. Case no. 43/1996 dated 03.07.1996 under [3] sections 147, 341, 324 and 307 of IPC against the appellants. After investigation, charge sheet was submitted against the appellants and cognizance of the offences were taken and the case was committed to the Court of Sessions. Charges were framed under sections 147, 341, 323 and 307 of IPC against all the appellants and appellant Basudeo Mahto was further charged under section 324 and 326 IPC. Trial was held and at the conclusion of the trial appellants were convicted and sentenced as aforesaid. Hence, this appeal.
6. Prosecution had examined altogether six witnesses out of whom PW-4 Lakho Mahto is the informant of the case; PW-3 Kokil Mahto is the son of the informant; PW-1 is Yogendra Mahto; PW-2 is Arjun Mahto; PW-5 is Ram Suresh Singh, who is the Investigating officer of the case and PW-6 is a formal witness (advocate clerk) who had proved three injury reports which were marked as Ext.-3 to Ext.-3/2.
7. PW-4 Lakho Mahto is the informant of this case. Informant has stated in his evidence that on the day of occurrence he was at his field situated at Belkhara along with his wife Sahodari Devi and son Kokil Mahto and were sowing maize in the field. In the meantime, Jobraj Mahto, Rajendra Mahto, Basudeo Mahto, Revali Devi and two daughter-in-laws of Jobraj Mahto arrived at the field forming unlawful assembly. Basudeo Mahto was armed with sword, Jobraj Mahto was armed with tangi, Rajendra Mahto was armed with farsa and they asked why he had dashed his fencing to which informant replied fence was fallen from before. In the meantime, Basudeo Mahto assaulted his son Kokil Mohto by sword as a result his son's left hand finger was amputed. Basudeo Mahto again gave sword blow on the neck of Kokil Mahto as a result Kokil Mahto received injury on his neck and blood oozed out. When informant and his wife tried to save his son Kokil Mahto then Jobraj Mahto, Rajendra Mahto and ladies assaulted them. Jobraj Mahto assaulted him by tangi thrice and Rajendra Mahto assaulted his wife by farsa on her head and both informant and his wife were injured. Jogendra Mahto came and saved them. Informant further stated that they went to police station on vehicle and thereafter, they were treated at Koderma Hospital. Informant has proved his signature on the fardbeyan which has been marked as Ext.-1.
[4]8. PW-3 Kokil Mahto is the son of the informant. PW-3 has stated in his evidence that on the day of occurrence on 02.07.1996 at 03.00 pm, he along with his father and mother were sowing maize in his field. The said land is situated near the simana (boundary) of place named Belkhara. In the meantime, Jobraj Mahto, Basudeo Mahto, Rajendra Mahto, Revali Devi, wife of Rajendra Mahto and wife of Basudeo Mahto arrived at the field and said that why they had dashed their fencing and they started assaulting them. Basudeo Mahto assaulted him by sword as a result his index finger was amputed. Basudeo Mahto gave second sword blow on the right side of his neck. PW-3 further stated that Basudeo Mahto assaulted him with intention to kill him. When his father and mother came to save him, then his father was assaulted by the accused persons with tangi and when his father fell down then his father was assaulted by lathi and his mother was assaulted tangi. Jobraj Mahto had assaulted his father and the ladies had assaulted his mother. Jogendra Mahto came on the place of occurrence and he took them to hospital. In his cross-examination, PW-3 stated that a panchayati was also convened with respect to the disputed land and Jobraj Mahto and Lakho Mahto were present. The said land was partitioned 30 years ago. In his cross-examination PW-3 further stated that Basudeo Mahto gave sword blow twice. PW-3 has denied that the land in question belongs to Jobraj Mahto. PW-3 has further stated that Jobraj Mahto had lodged a case against them for the same day of occurrence.
9. PW-1 is Yogendra Mahto and PW-1 has stated in his evidence that occurrence took place on 02.07.1996 at 03:00 pm and at that time he was grazing his cattle in the field. Lakho Mahto, Kokil Mahto and Sahodari Devi were sowing maize in their field. In the meantime accused Jobraj Mahto, Basudeo Mahto, Rajendra Mahto and wives of the aforesaid accused persons came there. Jobraj Mahto was armed with lathi, Basudeo Mahto was armed with sword, Rajendra Mahto was armed with lathi and ladies were armed with lathi and they started abusing. Jobraj Mahto assaulted Lakho Mahto by lathi and Basudeo Mahto assaulted Kokil Mahto with sword.
10. PW-2 is Arjun Mahto and he is the son of the informant. PW-2 has stated in his evidence that on the day of occurrence he was at his field [5] and Kokil Mahto and Lakho Mahto were with him. In the meantime Jobraj Mahto and his wife, Rajendra Mahto and his wife, Basudeo Mahto and his wife came and questioned the informant party, why they had dashed their fencing and on this informant party replied that they had not dashed the fencing. In the meantime, Basudeo Mahto assaulted Kokil Mahto by sword on his neck and in order to protect himself, Kokil Mahto tried to save the assault from his left hand as a result one finger of Kokil's left hand was cut. Basudeo Mahto again gave sword blow upon his brother with intention to kill him as a result his brother sustained injury on the left side of the neck. Accused persons assaulted his father, mother by tangi, sword and farsa.
11. PW-5 is Ram Suresh Singh, who is the Investigating Officer of this case. Investigating Officer has stated in his evidence that on 02.07.1996 he was posted at Jai Nagar police station as A.S.I. Investigating Officer has proved the fardbayan which was marked as Ext.-2. Investigating Officer had visited the place of occurrence and had found blood stained and ploughed land at the place of occurrence.
ARGUMENTS ON BEHALF OF APPELLANTS:-
12. Mr. Pramod Kumar, the learned counsel for the appellants submitted that PW1 Yogendra Mahto is said to be the eye-witness of the case but PW-1 was unable to state how many times the assault was made with sword and lathis. Learned counsel further submitted that PW-1 has stated that the reason for fight was not land dispute but over wood.
13. Referring to the evidence of PW-2 Arjun Mahto, who is the son of the informant, learned counsel submitted that PW-2 had stated in his cross-examination that he can't say how many lathi, tangi or farsa were inflicted in the assault by the accused persons. PW2 was unable to say who else assaulted and to whom and on which parts of the bodies. Learned counsel further submitted that the evidence of PW3 Kokil Mahto reveals that Basudeo Mahto had assaulted Kokil Mahto with sword as a result his left hand index finger was cut and on second assault by Kokil Mahto, he sustained a cut injury on the right side of his neck. However, PW-3 was not able to reveal as to who assaulted his father, nor was he able to reveal about the assaults on his mother and later on prosecution witnesses stated that Jobraj Mahto assaulted his father and three women assaulted his mother [6] which is not believable. Learned counsel further submitted that PW-4 informant, in his evidence, has stated that all the appellants were armed with farsa, tangi and sword which is inconsistent with evidence of PW-1 as PW-1 had deposed that only Basudeo was armed with sword and remaining appellants were armed with lathis.
14. Learned counsel for the appellants further submitted that as per the evidence of PW-5 Ram Suresh Singh, the Investigating Officer, at the place of occurrence there was blood drops but, the same was not sent for forensic examination in laboratory. Investigating Officer has further deposed in paragraph No. 6 of his deposition that he saw bloodstains at the place of occurrence but no recovery of any arms such as sword, farsa or tangi was made. Investigating Officer had further stated that he did not see bloodstains over the victim's cloth. Learned counsel for the appellants has then submitted that there was free fight between the parties and the appellants/accused persons had also lodged FIR on the same day against Lakho Mahto (informant PW-4) and his son Kokil Mahto (PW-3) and both PW-4 and PW-3 were also convicted in G.R. Case No. 476 of 1996 and this fact is also depicted in para-16 of the impugned judgment.
15. Learned counsel further submitted that who assaulted to whom and with which arms is doubtful from the evidence of entire prosecution witnesses. He further submits that the statement of PW-5 Investigating Officer is also contradictory to evidence of prosecution witnesses. Moreover, deposition of informant PW-4 is also inconsistent or contradictory with the FIR. Learned counsel has further submitted that all the prosecution witnesses are interested witnesses and in order to save their skins the instant case was lodged. The place of occurrence is also not at all clear since none of the prosecution witnesses could depose about the description of the land where occurrence took place, hence, no case is made out against the appellants. Learned counsel for the appellants further submitted that the alleged weapon of assault sword, tangi and farsa were not recovered by the police nor the same was produced before the Court. Bloodstained soil was seen by the Investigating Officer at the alleged place of occurrence but the same was not chemically examined or produced before the Court. Learned counsel further submitted that the doctor was not examined and, therefore, due to non-explanation of injuries, prosecution has [7] failed to prove the case beyond reasonable doubt against the appellants. Learned counsel for the appellants lastly submitted that all the appellant were acquitted of the charges under section 307 of the Indian Penal Code, except, Basudeo Mahto. Basudeo Mahto of Cr. Appeal No. 425 of 2010 was convicted on the basis of the injuries report Ext.-3 to 3/2, but, such injuries were never explained by the doctor.
16. Learned counsel for the appellants has relied on following judgments in support of appellants case-
1. State of U.P. v. Munni Ram and Ors reported in [2011 (1) East Cr C 86 (SC)].
2. Jarnail Singh v. State of Punjab reported in AIR 1982 Supreme Court 70.
3.Vishvas Aba Kurane v. State of Maharashtra reported in AIR 1978 Supreme Court
414.
4. Amrik Singh and others v. State of Punjab reported in 1993 CRI.L.J.2587.
5. Ishwar Singh v. State of U.P. reported in (1976) 4 Supreme Court Cases 355.
6. Munir Khan v. State of Uttar Pradesh reported in (1970) 3 Supreme Court Cases
191. Learned counsel for the appellants submitted that in State of UP(Supra), Hon'ble Apex Court has held that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to innocence, the view which is favorable to the accused is normally to be adopted. Learned counsel without admitting the guilt of the appellants relied on case of Amrik Singh(Supra) and Munir Khan(supra) for reduction in sentence.
ARGUMENTS ON BEHALF OF STATE:-
17. Mrs. Vandana Bharti, the learned APP for the State has argued that in the evidence it has come that there was case and counter case between both the parties which means occurrence of assault had taken place.
The appellants are fully guilty, because, the informant side have been injured and injury report is on the record. Non-examination of doctor in the facts here does not destroy the prosecution case. The evidence of injured witnesses and interested witnesses are believable and reliable. PW-3 Kokil Mahto and PW-6 Ram Deo Kumar have also supported prosecution case. Though main assault is by Basudeo Mahto, but, the evidence when read in the light of common intention, assaults made by other appellants also made [8] them liable for charges ascertained. No injuries have been brought on record by the appellants, hence inference is adverse against them. Lastly, learned counsel for the state submitted that the impugned judgment of conviction and order of sentence passed by the learned trial court is based on proper evidence and requires to be sustained and upheld by this appellate court.
FINDINGS
18. Having heard both counsels, gone through the records of the case and the evidences, I find that in both these appeals, all the appellants were convicted under sections 147, 341 and 323 of IPC and appellant Basudeo Mahto was further convicted under sections 324, 326 and 307 of IPC.
19. On going through the evidence, I find that matter pertains to case and counter case between both the parties. I find that defense or appellants herein had filed certified copy of judgment dated 10.07.2010 passed in G.R. No. 476/96 of T.R. No. 139/2000 passed by the learned Judicial Magistrate 1st Class, Koderma, which is on record. On perusal of G.R. No. 476/1996 of T.R. No. 139/2000, I find that for the same date of occurrence, a counter case was registered against the informant parties herein under sections 341, 323 and 324/34 of IPC and the case was tried before the court of Judicial Magistrate 1st Class, Koderma and ultimately Lakho Mahto (PW-4 or informant herein) and Kokil Mahto (PW-3) were convicted under sections 323/34, 324/34, 341/34 and 325/34 of IPC and were sentenced. Since matter relates to case and counter case between the parties so law as laid down in Nathi Lal and others v. State of U.P. and another reported in 1990 (Supp) Supreme Court cases 145 ought to have been followed, which lays down that both the cross cases must be tried by same learned judge one after another and both the judgments must be pronounced by the same learned judge one after the other. But in the case in hand case and counter case were tried in the different court and hence, who was the aggressor party could not be ascertained.
20. First of all, coming to the conviction of the appellant Basudeo Mahto under sections 341, 323, 324, 326 and 307 of IPC, I find that in his evidence PW-3 Kokil Mahto, has deposed that he was assaulted by appellant Basudeo Mahto by sword as a result index finger of his left hand was amputed and he [9] also sustained injury on the right side of his neck. In this case though doctor, who had examined the injured persons, was not examined, but, the injury report of PW-3 Kokil Mahto viz. Ext.-3/1 is on record. On perusal of injury report Ext.-3/1, I find that there are five incised wounds on the person of the injured Kokil Mahto out of which all the injuries are simple in nature except injury no. 1 and 3. Injury no. 1 is incised wound in the right side of neck caused by sharp cutting weapon which was dangerous to life and injury no.3 is amputation of left index finger from proximal end of second phalanx caused by sharp weapon, which was grievous in nature. But, regarding injury no.1 and 3, this court is of the view that due to non-examination of doctor, it would not be safe to assume that injury no.1 and 3 were dangerous to life or grievous in nature respectively. Hence, from the ocular evidence of injured PW-3 Kokil Mahto and his injury report Ext.-3/1, it can be safely inferred that PW-3 Kokil Mahto had sustained simple injury due to assault by sharp cutting weapon i.e. sword. Hence, charges under sections 341, 323 and 324 of IPC against the appellant Basudeo Mahto is proved but, charges under sections 307 and 326 of IPC against the appellant Basudeo Mahto is not proved by the prosecution beyond reasonable doubt.
21. Regarding conviction of the appellant Rajendra Mahto, under sections 341 and 323 IPC, I find that PW-4 informant has deposed that appellant Rajendra Mahto was armed with farsa and had assaulted his wife Sahodari Devi with farsa on her head and hand. Here it is pertinent to note that wife of the informant has died, so, her evidence could not be taken. On perusal of injury report Ext.-3 of Sahodari Devi, I find that she had sustained four injuries on her person out of which three injuries were incised wound caused by sharp cutting weapon and one injury was lacerated wound and all the injuries sustained by Sahodari Devi were simple in nature. So, as injury was inflicted by the appellant Rajendra Mahto by farsa or sharp cutting weapon, conviction of appellant Rajendra Mahto under section 323 of IPC is modified to one under 324 of IPC and his conviction under section 341 of IPC as passed by the learned trial court requires no interference.
22. So, far as the women appellants, namely, appellant no.3 Urmila Devi, appellant no.4 Jhalia Devi and appellant no.5 Revali Devi are concerned, I find that there is no specific evidence against them, regarding the assault on the informant party. Hence, appellant no.3 Urmila Devi, [10] appellant no.4 Jhalia Devi and appellant no.5 Revali Devi are acquitted of the charges under sections 147, 341 and 323 of IPC and they are discharged from the liabilities of their bail bonds.
23. Accordingly, impugned judgment of conviction and order of sentence both dated 16.04.2010, passed by the learned 1st Additional Sessions Judge, Koderma in Sessions Trial No. 446 of 1998, so far as it relates to conviction of the appellant Basudeo Mahto, his conviction under sections 326 and 307 of IPC and its corresponding sentences are set-aside. Appellant Rajendra Mahto and appellant Basudeo Mahto are convicted under section 341/34 and 324/34 of IPC. Conviction of the appellant Basudeo Mahto under section 323 of IPC as passed by the learned trial court requires no interference and is sustained and upheld.
24. So, far as sentence of the appellant Rajendra Mahto and appellant Basudeo Mahto is concerned, I find that occurrence is of year 1996 and till now about 25 years have passed and appellants have faced rigor and vigour of trial and also considering the fact that there was free fight between both the parties, at this stage, I modify the sentence of both the appellants Basudeo Mahto and Rajendra Mahto under Section 324/34 of the Indian Penal Code for six months SI. Sentence of the appellant Basudeo Mahto under section 323 IPC is modified to three months SI. Both the appellants Basudeo Mahto and Rajendra Mahto were sentenced to one month SI under section 341/34 of IPC by the learned trial court and requires no interference. Any period already undergone in custody by the appellants Rajendra Mahto and Basudeo Mahto shall be deducted from the modified sentence passed by this Court and the sentence shall run concurrently. Bail bonds of both the appellants Rajendra Mahto and Basudeo Mahto stands cancelled.
25. Accordingly, both the criminal appeals, that is, Cr. Appeal (SJ) No. 421 of 2010 and Cr. Appeal (SJ) No. 425 of 2010 are partially allowed.
(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi, Dated: 17/12/ 2021, Madhav- NAFR