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2011 DIGILAW 1114 (JHR)

Mansha Karmakar v. State of Jharkhand

2011-12-16

D.N.UPADHYAY

body2011
JUDGMENT D.N. Upadhyay, J.- This Criminal Appeal has been directed against the judgment of conviction and order of sentence dated 23.12.2002, passed by Additional District and Sessions Judge, F.T.C. No.1, Jamshedpur, East Singhbhum in Sessions Trial No. 758 of 1994 [Mango P.S. Case No. 85/1994 corresponding to G.R. No. 689/1,994], whereby and whereunder, the appellant has been held guilty for the offence punishable under Section 324 of the Indian Penal Code and sentenced to undergo R.I. for three years. 2. The facts revealed from the Fardbayan of the informant Babu Ram Giri is that some altercation took place between the family of the appellant and the informant on the point of fetching water from a hand-pump situated near their houses. It is alleged that the informant reached the place of occurrence after hearing 'hulla' where he was assaulted by means of sharp cutting weapon by the appellant on the instigation of Kalia Karmakar. The informant sustained injuries on his head and fingers of his hand. The Fardbayan of the informant was recorded on 19.4.1994 at 19:30 hrs. at NH-33. 3. On the basis on Fardbayan, Mango P.S. Case No. 85/1994 corresponding to G.R. No. 689/1994 for the offence under Sections 341, 323 and 324 of the Indian Penal Code against Mansa Karmakar and Kalia Karmakar was registered. On the conclusion of investigation, both the accused were charge-sheeted to face trial for the offences under Sections 341, 323, 324, 326 and 307 of the Indian Penal Code. Accordingly, the charges under Sections 341, 326 and 307 of the Indian Penal Code were framed against both the accused persons and since they pleaded not guilty, they were put on trial. 4. The prosecution examined altogether four witnesses to substantiate the charges. On conclusion of the trial, one of the accused Kalia Karmakar was acquitted whereas the appellant Mansa Karmakar @ Mansha Karmakar was held guilty for the offence under Section 324 of the Indian Penal Code and sentenced as aforesaid. 5. The learned counsel appearing for the sole appellant Mansa Karmakar has challenged the impugned judgment on the ground that no independent witness has come forward to support the prosecution case. Putul Bala Giri (P.W. 1) and Manna Giri (P.W. 2) are the daughter and wife of the informant P.W. 3 respectively. The Investigation Officer namely Sidhnath Singh was examined as P.W. 4. 6. Putul Bala Giri (P.W. 1) and Manna Giri (P.W. 2) are the daughter and wife of the informant P.W. 3 respectively. The Investigation Officer namely Sidhnath Singh was examined as P.W. 4. 6. It is submitted that the informant in his evidence has admitted that he was working in the field situated at a distance of half kilometre from the place of occurrence and he was attracted towards the incident after hearing 'Hulla'. It is not expected that the person who is working at a distance of half kilometre away, would be able to hear voice or hulla from such a distance. Even for the argument sake if it is admitted, that hulla must have been heard by the other villagers, but no witness of the vicinity has come forward to support the case. Not only that, the informant had named some persons who had assisted in removing him to the Hospital, but none of them has come forward to support such contention. The informant has further tried to conceal this fact that the people of the locality had witnessed the occurrence and, therefore, this contradiction was referred to the Investigating Officer to which, he had accepted and said that the informant had spoken that the villagers had assembled and witnessed the occurrence. Furthermore, the Investigating Officer did not find blood stain at the pace of occurrence whereas the informant has said that there was trail of blood from the hand-pump up to his house. The learned counsel has also challenged the impugned judgment on the ground that the informant in his Fardbayan has not described the weapon of assault as 'Sword' rather he has stated that the weapon was made of iron like 'Kata'. It is also submitted that non-examination of the Doctor is fatal. 7. The learned Sessions Judge, has held the appellant guilty for the offence punishable under Section 324 of the Indian Penal Code, though no charge was framed. It is true that conviction for lesser offence, if it is found committed, can be held but in the instant case, the informant has come with the allegation that he has lost his three fingers including thumb of right hand and, therefore, examination of the Doctor was very much essential to hold the appellant guilty even for the offence punishable under Section 324 of the Indian Penal Code. The informant during his examination in Court had shown his right hand having two fingers and alleged that he had lost his three fingers including thumb in the, assault, is not sufficient to hold the appellant guilty unless medical report is proved. 8. Learned counsel for the State has opposed the arguments advanced on behalf of the appellant and supported the impugned judgment. He has submitted that non-examination of independent witnesses cannot be considered as the ground to throw out the prosecution case, if it is proved by the witnesses examined. The incident took place on the point of fetching water and, therefore, P.Ws. 1, and 2 might be the relative of the informant but they are the natural witnesses. It is submitted that there is no merit in this appeal and the same is liable to be dismissed. 9. I have gone through the evidences on record and the impugned judgment and I could not understand as to how the learned Sessions Judge has held the appellant guilty for the offence punishable under Section 324 of the Indian Penal Code in absence of any injury report and also in absence of examination of medical officer. The charges were framed under Sections 326, 341 and 307 of the Indian Penal Code. I do agree with the judgment to the extent that no case under Section 307 or 341 of the Indian Penal Code was proved. The appellant has rightly been acquitted for those offences but so far offence punishable under Section 326 or 324 of the Indian Penal Code are concerned, the injury report and examination of the Medical Officer are very much essential. Only because the victim had shown his right hand in which thumb and two fingers were missing, the learned Sessions Judge should not have taken note of that for holding the appellant guilty without being any medical report proved. The submission advanced by the learned counsel for the appellant also find support from the evidence on record that the people of the locality had assembled at the place of occurrence but none of them has been examined. Further point that no mark of blood was detected during investigation, is also important in view of the evidence of the informant in which he has stated that trail of blood was available from the place of occurrence up to his house. Further point that no mark of blood was detected during investigation, is also important in view of the evidence of the informant in which he has stated that trail of blood was available from the place of occurrence up to his house. The Investigating Officer has clearly stated that he did not find blood stain at the place of occurrence. 10. Considering all these aspects, I do not feel inclined to uphold the judgment of conviction and order of sentence dated 23.12.2002, passed by Additional District and Sessions Judge F.T.C. No.1, Jamshedpur, East Singhbhum in Sessions Trial No. 758 of 1994 and therefore, the impugned judgments stands set aside. The appellant is acquitted and further discharged from the liability of bail bond and set at liberty.