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2005 DIGILAW 402 (JHR)

Atwari Mandal v. State Of Jharkhand

2005-06-13

AMARESHWAR SAHAY

body2005
JUDGMENT Amareshwar Sahay, J. 1. The sole appellant, Atwari Mandal was put on trial for commission of the offences under Sections 307 and 326 of the Indian Penal Code. By the impugned judgment dated 30th September, 1991 in Sessions Trial No. 11 of 1991, the 3rd Additional Sessions Judge, Deoghar, held the appellant guilty for committing the offences under Sections 307, 326 and 324 of the Indian Penal Code and was convicted him thereunder. The appellant was sentenced to undergo RI for a period of 10 years for the offence under Section 307 of the Indian Penal Code, and RI for a period of 7 years for the offence under Section 326 of the Indian Penal Code. However, no separate sentence was awarded to the appellant for the offence under Section 324 of the Indian Penal Code. 2. The prosecution story, in short, is that on 22.10.1989 at about 4 p.m. the informant, Chandrakala Devi (PW 7) lodged a First Information Report at Referal Hospital, Madhpur, alleging therein that on that day at about 7 a.m. while she went to see the crops of her paddy field, she saw that the appellant, Atwari Mandal was cutting the paddy crops from the field of his brother, Banshi Mandal. It was said that Dhaneshwar Mandal, Bhado Mandal the sons of Atwari Mandal and his wife Nimia Devi were also there i.e. at the place of occurrence. At about 7.30 a.m. Banshi Mandal also came there and asked Atwari Mandal not to cut his paddy crops, upon which Atwari Mandal became furious and then with an intention to kill, gave him a farsa blow on his head, due to which Banshi Mandal fell down and became unconscious. After that the said two sons of Atwari Mandal caught hold of Banshi Mandal and then Atwari Mandal gave several farsa blows on his hand, leg and head, causing grievous injuries. On hullah, witnesses arrived at the P.O. and saw the occurrence. With the help of the villagers Banshi Mandal was brought to the Referal Hospital, Maldhpur for treatment, where the informant gave her fardbeyan to the police. 3. In order to substantiate the charges, altogether 10 witnesses were examined on behalf of the prosecution. PW 1, Manager Mandal has appeared as an eyewitness and has stated that he saw Banshi Mandal was being assaulted by the appellant, Atwari Mandal. 3. In order to substantiate the charges, altogether 10 witnesses were examined on behalf of the prosecution. PW 1, Manager Mandal has appeared as an eyewitness and has stated that he saw Banshi Mandal was being assaulted by the appellant, Atwari Mandal. PW 2, Hemlal Mandal has also stated that he saw Banshi Mandal fallen on the ground in injured condition and the appellant, Atwari Mandal was assaulting him by means of farsa. PW 3 Surendra Mandal has specifically stated that he saw the appellant, Atwari Mandal giving repeated blows by means of farsa to Banshi Mandal. He further stated that it was Banshi Mandal, who had grown paddy over the portion of land which was forcibly being harvested by Atwari Mandal, due to which the said occurrence took lace. PW 4 Salauddin Khan has stated in his evidence that just prior to the occurrence, he saw Banshi Mandal running towards his land and after an hour he saw Banshi Mandal in injured condition being carried to the Hospital by 3-4 persons. He further stated that the sister of Banshi Mandal told him that it was Atwari Mandal, who assaulted the injured, Banshi Mandal by means of farsa. PW 5, Rasia Devi, the mother of the injured, Banshi Mandal has stated that she was informed by Banshi Mandal and his sister, Chandra Kala Devi that it was the appellant, Atwari Mandal, who assaulted him. PW 6 is injured Banshi Mandal himself and PW 7 is the informant i.e. the sister of the injured Atwari Mandal, Chandra Kala Devi. PW 8, Shanti Kumar Banerjee, who examined the injured, Banshi Mandal on 22.10.1989 at Referal Hospital, Madhupur and he found the following injuries on the person of Banshi Mandal. (i) Sharp cutting incised would radish in colour horizontally situated 2-1/2" x 1/4" x bone deep with fracture of frontal bone of right side of the frontal region of head above the eyebrow. (ii) One sharp cutting incised would obliquely situated 5-3/4" x 1/4" x bone deep with fracture of parietal bone of left side of scalp. Both the fractures No. 1 and 2 were found confirmed by X-ray. (iii) One sharp cutting incised would 3-1/2" x 1/2" x bone deep on the deltoid region of the right arm. (ii) One sharp cutting incised would obliquely situated 5-3/4" x 1/4" x bone deep with fracture of parietal bone of left side of scalp. Both the fractures No. 1 and 2 were found confirmed by X-ray. (iii) One sharp cutting incised would 3-1/2" x 1/2" x bone deep on the deltoid region of the right arm. (iv) One sharp cutting incised would 2-1/2" x 1/2" x bone deep on the upper part of the right lower leg below the knee joint. (v) One sharp cutting incised would 2-3/4" x 1/2" x bone deep on the lower portion of the right thigh above knee joint. (vi) One sharp cutting incised would 3 1/4" x 1/4" bone deep on the upper side of the lift sole. 4. Out of the above 7 injuries, injuries Nos. 1 and 2 were found to be grievous in nature and injuries Nos. 3 to 7 were found to be simple in nature. 5. Mr. Anuj Prakash, learned Counsel appearing for the appellant has mainly argued that from the evidence adduced by the prosecution itself it would appear that the prosecution has not been able to prove the ingredients of Section 307 of the Indian Penal Code against the appellant. Elaborating his argument, he submitted that from the evidence of the prosecution itself, it would appear that the appellant had no intention at all to kill Banshi Mandal. In this regard, he referred the statement of injured, Banshi Mandal himself made in paragraph 14 of his evidence, wherein he has stated that Atwari Mandal, the appellant, had also accompanied him to the hospital. It was further submitted that it is not a case of the prosecution that though several persons were present at the place of occurrence, but none of them did even try to prevent the appellant from assaulting the injured, Banshi Mandal. If the appellant had any intention to kill, he could have killed Banshi Mandal easily then the there. Therefore, from the evidence of the prosecution itself, it is clear that the charge under Section 307 was not establish and therefore the conviction under Section 307, IPC passed by the trial Court is not sustainable in eyes of law. Learned Counsel for the appellant submitted that at best it can be a case of Section 326, IPC and not under Section 307, IPC. 6. Learned Counsel for the appellant submitted that at best it can be a case of Section 326, IPC and not under Section 307, IPC. 6. The appellant has been convicted not only under Section 307, IPC but also under Section 326, IPC and has been sentenced to undergo RI for a period of 7 years for the said offence under Section 326, IPC. 7. From the evidence discussed above and after considering the arguments made on behalf of the appellant, I find that there is force in submission of the learned Counsel for the appellant that the prosecution has failed to prove the charge under Section 307, IPC. But from the evidence on record, I find that the trial Court has rightly found the appellant guilty for the offence under Sections 326 and 324, IPC and thus has rightly convicted him thereunder. 8. Accordingly, this appeal is partly allowed and the conviction and sentence of the appellant under Section 307, IPC is hereby set aside. However, the conviction and sentence against the appellant for the offences Sections 326 and 324, IPC passed by the trial Court is hereby affirmed.