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2005 DIGILAW 341 (JHR)

Kailash Mandal v. State Of Jharkhand

2005-05-04

AMARESHWAR SAHAY

body2005
JUDGMENT Amareshwar Sahay, J. 1. These two appellants along with seven others were tried for the charge under Section 307, IPC by the 2nd Additional Sessions Judge, Dumka at Camp Jamtara and by judgment dated 24th January, 1991 in sessions case No. 434 of 1985, the learned Additional Sessions Judge convicted these two appellants for the offence under Section 307, IPC and sentenced both of them to undergo RI for a period of seven years. Rest of the seven accused, who were tried along with appellants were acquitted from the charges. 2. The prosecution case, in sort, is that on 28.7.1984 at about 8 a.m. while the informant, Dakshin Kumar Mandal (PW 5) was returning to his house from his field situated in Village Dhobone, P.S. Jamtara along with Phanibhushan Mandal (PW 1) and when he reached near the house of Joti Mandal (acquitted), all of a sudden, all the accused persons, on the orders of Joti Mandal started assaulting the informant. It is said that these two appellants assaulted the informant by means of Tangi hitting on his chest and hand and all other remaining accused assaulted him with lathi and thereafter the accused persons fled away. 3. The Investigating Officer after completing the investigation, submitted charge-sheet against the appellants. The case was committed to the Court of Session and the charges were framed under Sections 307/149, IPC against the appellants and these two appellants were also charged for the offence under Section 148, IPC. 4. In order to prove its case, prosecution examined in all, eight witnesses, out of whom PW 4, Krishna Pada Mandal was tendered, PW 7 Dwijapada Gorain was a formal witness, who proved the Bed Head Ticket (Ext. 3), PW 1, Phani Bhushan Mandal is an eye-witness of the occurrence. He has specifically stated in his evidence that these two appellants were having Tangi in their hands. He has further stated that the appellant No. 1, Kailash Mandal gave a Tangi blow on the chest of Dakhin Kumar Mandal and the appellant No. 2, Arun Mandal gave a Tangi blow on the left hand of the Informant Dakhin Mandal and rest accused assaulted him by means of lathi. His evidence is consistent so far as these two appellants are concerned that they assaulted the informant by means of Tangi. 5. His evidence is consistent so far as these two appellants are concerned that they assaulted the informant by means of Tangi. 5. PW 2, Sunil Kumar Mandal and PW 3, Mahadeo Mandal have also stated that these two appellants assaulted the informant, Dakhin Mandal by means of Tangi on his chest and on his hand. 6. PW 5, i.e. informant, Dakhin Mandal has specifically stated that these two appellants, on the order of Joti Mandal assaulted him. He has further stated that the appellant No. 1 Kailash Mandal gave a Tangi blow on his chest whereas the appellant No. 2, Arun Mandal gave a Tangi blow on his left hand due to which he fell down and thereafter all the other accused persons assaulted him with lathi. 7. The statement of the victim (PW 5) has fully been corroborated by the statement of the eye-witnesses i.e. PWs 1, 2 and 3. The evidence of PW 6, the Doctor also corroborates the statement made by the informant (PW 5) and the statement of PWs 1, 2 and 3. But one thing is important in this case that the witnesses PWs 1, 2 and 3 and PW 5 (informant) himself, have stated that the appellant No. 1 and the appellant No. 2 both gave single blow of Tangi on the person of the informant. Appellant No. 1 gave one Tangi blow on the chest whereas the appellant No. 2 gave one Tangi blow on his left hand on the person of the informant. There is nothing on record to show that they repeated the blow of Tangi on the person of the informant. 8. Learned counsel appearing for the appellants has submitted that since there was no repetition of blows by the appellants, even according to the prosecution case and, therefore, it cannot be inferred that the appellants had any intention to kill the informant and, as such, the conviction under Section 307, IPC, cannot be sustained. Learned counsel further submitted that according to the prosecution the injury No. 1 on the chest of the informant was grievous whereas the injury, which was caused by the appellant No. 2 on the left hand of the informant was found to be simple in nature. Learned counsel further submitted that according to the prosecution the injury No. 1 on the chest of the informant was grievous whereas the injury, which was caused by the appellant No. 2 on the left hand of the informant was found to be simple in nature. It was submitted that at best it can be said that appellants had the intention to cause only bodily injury to the informant and therefore the present case may fall under Section 324, IPC, but not under Section 307, IPC. 9. The submission of the learned counsel for the appellants appears to be correct, in view of the nature of evidence adduced by the prosecution. 10. I find that the prosecution has not been able to prove beyond all reasonable doubt that the appellants had any intention to kill the informant. But since evidence on record, clearly establishes that these two appellants assaulted the informant, causing injuries, one of which was grievous in nature and, therefore, I find that the prosecution has been able to prove the offence committed by these two appellants punishable under Section 324, IPC. 11. Accordingly, in view of the discussion and findings above, I hold that the conviction and sentence of the appellant passed by the trial Court against these two appellants under Section 307, IPC, cannot be sustained and as such the conviction and sentence under Section 307, IPC is hereby set aside. However, these two appellants are found guilty for committing the offence under Section 324, IPC, accordingly they are convicted thereunder and are sentenced to undergo the RI for the period already undergone by them and to pay a fine of Rs. 2,500/- each, in default to undergo RI for a period of six months each. If the fine imposed is deposited by the appellant then it shall be paid to the informant. With this alteration in the conviction and sentence, this appeal is hereby dismissed.