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2000 DIGILAW 41 (JHR)

Naurangi Mahto And 4 Ors. v. State

2000-12-15

D.N.PRASAD

body2000
JUDGMENT D.N. Fraud, J. 1. This criminal revision application is directed against the judgment, dated 6.10.1997 passed in Cr. Appeal No. 140 of 1987 by the 5th Additional Sessions Judge, Giridih, whereby he affirmed the judgment of conviction and order of sentence, dated 16.9.1987 passed in S.T. No. 40 of 1985 by the 1st Assistant Sessions Judge. Giridih, whereby the petitioner No. 2, namely. Kaushal Mahto was convicted under Section 307 of the Indian Penal Code and sentenced to undergo RI for 5 years while the other rest accused persons including one Sundar Mahto (since dead) were convicted under Sections 307/149 of the Indian Penal Code and sentenced to undergo RI for 5 years. 2. The prosecution case in brief as alleged that on 24.11.1984 at about 4.30 p.m., while the informant Sukhdeo Gope was returning from CCL after performing his duty to his house, he saw the petitioners taking bundle of paddy crops on bullock-cart towards their village Tikodih and at that time accused Kaushal Mahto armed with tangi and the rest accused persons were armed with lathi. The informant inquired from Naurangi Mahto as to why he has assaulted his son to which he denied, resulting an altercation and in the meantime Kaushal Mahto assaulted with tangi on his head and thereafter, the accused Naurangi Mahto gave lathi blow on his ribs. Kaushal Mahto again gave another tangi blow on the neck and thereafter, all the accused persons/petitioners fled away. The villagers also came there on hullah and thereafter, the injured was taken to the CCL Hospital. Baniadih where the informant was treated. The First Information Report was lodged for the offence under Sections 147/148/149/ 323/324/307 of the Indian Penal Code. The police investigated into the case and submitted charge-sheet against all the accused persons/petitioners. 3. All the accused persons/ petitioners appeared in the trial Court and the charges were framed under Section 307 of the IPC against Kaushal Mahto whereas under Section 149/307 of the Indian Penal Code against other accused persons. The witnesses were examined and after hearing both sides, the trial Court convicted the petitioners/accused persons and sentenced them in the manner mentioned above. The petitioners, thereafter, preferred appeal before the Sessions Judge, Giridih. The learned Additional Sessions Judge, Giridih affirmed the Judgment of conviction and order of sentence passed by the trial Court and the appeal was dismissed by an order dated 6.10.1997. 4. The petitioners, thereafter, preferred appeal before the Sessions Judge, Giridih. The learned Additional Sessions Judge, Giridih affirmed the Judgment of conviction and order of sentence passed by the trial Court and the appeal was dismissed by an order dated 6.10.1997. 4. On being aggrieved by the judgment of conviction and order of sentence passed by the trial Court and also the appellate Court, the petitioners preferred this revision application claiming therein that the lower Court committed error in convicting the petitioners and the evidence adduced in the trial Court have not been weighed in the proper way. It is also claimed that there is no allegation for committing overt act as against the petitioner Nos. 3, 4 and 5 but even then the lower Court convicted them without appreciating the evidence on record correctly. It is also argued that the offence under Section 307 or under Section 307/149 of the Indian Penal Code was not made out in the instant case, as there was no intention to commit murder rather the occurrence took place at the spur of moment and there was no unlawful assembly at the relevant time, as none of the members had any preplan for the said occurrence nor there was premeditated plan for committing such occurrence. There was no motive on the part of the accused persons and as such the judgment of conviction and order of sentence passed by the Court below is fit to be set-aside. 5. The learned counsel appearing on behalf of the petitioners, at the very out-set submitted before me fairly that the instant revision application was admitted as back as on 12.1.1998 as regards to petitioner No. 1. Nawrangi Mahto and petitioner No. 2. Kaushal Mahto on the point of sentence only whereas this revision application was admitted in respect of petitioner Nos. 3 to 5 for which it was open rule for deciding the merit as a whole. It is further argued that there is no specific allegation against the petitioner Nos. 3 to 5, namely, Dinoo Mahto. Basudeo Mahto and Thanoo Mahto for committing overt act. 3 to 5 for which it was open rule for deciding the merit as a whole. It is further argued that there is no specific allegation against the petitioner Nos. 3 to 5, namely, Dinoo Mahto. Basudeo Mahto and Thanoo Mahto for committing overt act. It is also submitted that there is no material to show that they formed unlawful assembly at the relevant time as admittedly all the accused persons/petitioners were coming from their field taking paddy on their bullock-cart and usually the persons, coming from their field, are having lathi In their hands as there was no premeditated plan for committing any occurrence as well as there was no motive on the part of the petitioner and, therefore, the order of conviction and sentence passed against the petitioner Nos. 3 to 5 for the offence under Sections 307/149 of the Indian Penal Code is bad in law and it is fit to be set- aside. It is further argued that there is only allegation against the petitioner No. 1 for assaulting with lathi which will also not make out a case under Section 307 of the Indian Penal Code as there was no intention to commit murder and the injury caused by lathi is simple and superficial in nature and at best it will come under Section 323 of the Indian Penal Code. It is further argued that as regards the petitioner No. 2, Kaushal Mahto, there was no motive for committing murder as well as there was no intention to commit murder of the informant by him and as such under Section 307 of the Indian Penal Code is not made out against him. It is further argued that the petitioner Nos. 1 and 2 are old man and there is no criminal antecedent against both the petitioners as well as they are appearing in this case since 1984 and they have already suffered much. 6. On the other hand, the learned APP contended before me that as regards to petitioner Nos. 1 and 2, it is only to be heard on the point of sentence as the Court below has already held in his order, dated 12.1.1998 that no case has been made out for interference with the order of conviction passed against the petitioner Nos. 1 and 2. 7. 1 and 2, it is only to be heard on the point of sentence as the Court below has already held in his order, dated 12.1.1998 that no case has been made out for interference with the order of conviction passed against the petitioner Nos. 1 and 2. 7. It is true that there is no scope to deal with the material as regards to conviction of petitioner Nos. 1 and 2 at this stage, as it has already been held that there is no case made out for interfering with the order of conviction passed against the petitioner Nos. 1 and 2. 8. So far petitioner Nos. 3 to 5 are concerned, it is evident from the First Information Report that there is no specific allegation against them for committing overt act. There is also no material coming forward to indicate that they had made out any plan prior to the occurrence or they had formed unlawful assembly for committing the said occurrence. To prove unlawful assembly, it is essential to establish that the accused was a member of that unlawful assembly and he had intentionally joined or continued in such unlawful assembly as well as the said offence was committed in prosecution of the common object of such assembly or such as the member of the assembly knew likely to be committed any prosecution of the common object, where no overt act was attributed to any of the appellants on the injured, the mere fact that the appellants were armed with lathies would not by itself prove that they share the common object with which the main accused was inspired. In the case at hand, the petitioner Nos. 3 to 5 are simply said to have been holding lathies at the relevant time and admittedly they were coming from field with paddy. So, there was no any intention on their part for committing any occurrence as well as the said occurrence took place at the spur of moment and these petitioners have not used the said lathies in any way. Thus, it is clear that the petitioner Nos. 3 to 5 cannot be said to be the members of unlawful assembly. It is apparent from the evidence collected that none of the witnesses said anything against these petitioners for taking part in the assault. 9. Thus, it is clear that the petitioner Nos. 3 to 5 cannot be said to be the members of unlawful assembly. It is apparent from the evidence collected that none of the witnesses said anything against these petitioners for taking part in the assault. 9. In the result, I find that the prosecution has totally failed to establish the ingredience as regards to members of unlawful assembly against these petitioner (petitioner Nos. 3 to 5). Hence, the petitioner Nos. 3 to 5 are entitled for benefit of doubt. The Court below has committed error in convicting and sentencing the petitioner Nos. 3 to 5 for the offence under Sections 307/149 of the Indian Penal Code which is fit to be set- aside. Thus. I find merit in the petition as against the petitioners Nos. 3 to 5 which is accordingly allowed. The petitioner Nos. 3 to 5, namely, (3) Dinoo Mahto, (4) Basudeo Mahto and (5) Thanoo Mahto are hereby acquitted and set at liberty and they are also discharged from their bail bonds. So faras petitioner Nos. 1 and 2 are concerned, apparently, the petitioner No. 2, Kaushal Mahto assaulted with tangi to the informant whereas the petitioner No. 1, Nawrangi Mahto with lathi and the said injuries were also found corroborated from the medical evidence. Both the petitioner Nos. 1 and 2 said to be old man and there is no criminal antecedent against them. This case is lying since 1984 and as such the petitioners also suffered much. 10. In the above facts and circumstances, in my view, the imposition of fine against them would be suffice instead of sending them to the jail custody in the instant case and that would meet the ends of justice. In the result, the petitioner No. 2, Kaushal Mahto is sentenced to a fine of Rs. 2000/-(Two thousand) and in default he is to undergo Rl for six months for the offence under Section 307, IPC, whereas, the petitioner No. 1, Naurangi Mahto is sentenced to pay a fine of Rs. 1000/- (One thousand) and in default to undergo RI for three months for the offence. 11. With this modification in sentence, this revision application is disposed of as against the petitioner Nos. 1 and 2.