Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 296 (JHR)

Gour Mahato v. State Of Jharkhand

2007-04-11

DHANANJAY PRASAD SINGH

body2007
JUDGMENT D.P. Singh, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 21-8-2002 passed by Additional District and Sessions Judge, FTC IV, Bokaro in Sessions trial No. 269/1990, whereby and whereunder the learned Sessions Judge held the appellants guilty and sentenced them to undergo SI for one month under Section 341, IPC, SI for one year under Section 148, IPC and RI for three years under Section 307, IPC. However, sentences were directed to run concurrently. 2. The brief facts leading to this appeal are that in the evening of 15-3-87 the informant Subhas Kalindi and Kalipado Kalindi were returning after taking tea to their residents situated in Mauja Ghaghri, P.S. Candan Kiyari, when all the appellants surrounded them and started assaulting mercilessly. According to the informant, Kalipado was assaulted with dagger and axe on his head by appellants Gour Mahto and Sudhir Mahto while others also assaulted both of them with lathi. The incident took place near Shiv Mandir. The informant raised alarm, on which witnesses arrived there but the appellants fled away. The injured were brought to hospital for their treatment where the statement of informant, PW 5 was recorded. According to the informant, this incident took place due to previous enmity regarding land between them. 3. The police investigated the case and finally submitted charge sheet against the appellants under various sections including Section 307 IPC. The appellants were charged for the offences, to which they pleaded not guilty and claimed false, prosecution. The learned trial Court after examining witnesses found and held the appellants guilty for the offence under Sections 341, 148 and 307, IPC and sentenced them as aforesaid. 4. The present appeal has been preferred mainly on the ground that the learned trial Court has not considered the improbability of the occurrence. According to the learned Counsel for the appellants, the witnesses having enmity with the appellants have brought this false case against them. The learned Counsel further submitted that the incident has not taken place in the manner as alleged and neither the injuries found on Kalipado and Subhas justified their conviction under Section 307, IPC. According to the learned Counsel for the appellants, the witnesses having enmity with the appellants have brought this false case against them. The learned Counsel further submitted that the incident has not taken place in the manner as alleged and neither the injuries found on Kalipado and Subhas justified their conviction under Section 307, IPC. Learned Counsel further pointed out that even in case the occurrence is supposed to have taken place, the injuries found on PW 6, Kalipado shows that it was simple in nature and the appellants have no intention to cause his death. The learned Counsel further submitted that in absence of IO, defence has been prejudiced, as there are many material contradictions from the evidence of eye witnesses. Therefore, in view of the admitted fact that here was enmity between the parties, the prosecution story should have been discarded by the learned trial Court. 5. I have considered the materials on record. The prosecution has examined altogether seven witnesses in this case. PW 7, Dr. Bharat Prasad has examined PWs 5 and 6 and found one incised wound in the scalp of Kalipado and two sharp cutting wounds on the left portion of his body. According to him, all the injuries were simple in nature. PW 1, Amalya Kalindi, PW 2, Smt. Alka Kalindi, PW. 3 Abhilas Kalindi, all are hearsay witnesses of the occurrence. They arrived at the PO after hearing alarm raised by the informant. They have admitted that there was enmity between the parties for Government land. According to them, the incident took place in front of the disputed land. PW 1 has admitted that he was not examined by the police. PW 2 is the wife of PW 6. She also admitted that she was not examined by the police. PW 3 admitted vide para 3 that when he reached at the PO, he found Kalipado lying injured and all the appellants were assaulting him with lathi. However, this version does not get any support from medical evidence of doctor. PW 4, Anil Chandra Kalindi is said to have accompanied the informant and injured when this incident took place. However, he admitted during cross-examination that there were criminal cases pending between the parties. He further asserted vide para 4 that at the time when the occurrence took place nobody from the village arrived at the PO. PW 4, Anil Chandra Kalindi is said to have accompanied the informant and injured when this incident took place. However, he admitted during cross-examination that there were criminal cases pending between the parties. He further asserted vide para 4 that at the time when the occurrence took place nobody from the village arrived at the PO. He also asserted that Kalipado was assaulted by all the appellants. He has contradicted his earlier statement made before the police. According to him, vide para 9, when he brought Kalipado, none of the villagers have arrived there. This contradicts the statements of PWs 1, 2 and 3. 6. PW 5 is the informant, who has admitted in cross-examination that he was nephew of PW 6. According to him, when this incident took place, except the appellants and these two witnesses PWs 5 and 6, none were present. According to him, appellant Sudhir assaulted Kalipado twice with knife. He further admitted that PW 6 became senseless and he cannot say when he regained senses. PW 6, the injured, has admitted in cross examination that he remained conscious throughout. According to him, he raised alarm but he could not say which of the witnesses arrived there. He has also admitted that there was a dispute regarding land, for which proceedings under Section 144 and 107, Cr. P. C. were initiated. 7. Learned Counsel for the appellants stressed before me that the injuries found on PWs 5 and 6 do not justify the conviction of the appellants under Section 307, IPC. 8. After going through the evidence of PW 7, I also find that the learned trial Court has failed to consider that the nature of injures found on PWs 5 and 6 are not sufficient to convict the appellants under Section 307, IPC. The other appellants having assaulted the witnesses must have left some mark on them. The doctor did not find more than two injuries on PW 5, Subhas Chandra Kalindi. As such the involvement of all the appellants in assaulting PWs 5 and 6 even with lathi could not be proved. 9. In view of the admitted fact that there was enmity between the parties for certain lands, false prosecution cannot be ruled out. This view further found support from the injuries as well as contradictory statements of the witnesses examined by the trial Court. 9. In view of the admitted fact that there was enmity between the parties for certain lands, false prosecution cannot be ruled out. This view further found support from the injuries as well as contradictory statements of the witnesses examined by the trial Court. The incident took place more than 20 years back. Even if any Marpit took place, the appellants have suffered the rigours of trial for the two decades and sufficiently punished. 10. Having considered the above mentioned facts and circumstances, I find that the prosecution in the present case has failed to bring home charges against the appellants. Accordingly, I find and hold that the present appeal has got merit in it and deserves to be allowed. 11. In the result, this appeal is allowed and the judgment of conviction and order of sentence dated 21-8-2002 passed by the learned Court below is set aside. The appellants being on bail, are discharged from the liability of their bail bonds.