Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1264 (CAL)

Mathura Prosad Mahato Si v. STATE OF WEST BENGAL

2011-09-13

KALIDAS MUKHERJEE, SYAMAL KANTI CHAKRABARTI

body2011
JUDGMENT KALIDAS MUKHERJEE, J. 1. THIS appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 4th Fast Track Court, Raghunathpur, Purulia in Sessions Trial No. 15 of 2002 arising out of Sessions Case No. 119 of 2000 sentencing Dharani Mahato and Madhusudan Mahato to pay a fine of Rs.500/- each in default to suffer S.I. for one month under section 324 of the Indian Penal Code. The learned Judge convicted appellant Mathuraprasad Mahato and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- in default to suffer R.I. for two years under section 307 of the Indian Penal Code. Other accused persons were acquitted by the Learned Trial Judge. 2. The prosecution case, in short, is that on 23.3.1996 at about 11 A.M. The informant Bikash Chandra Mahato along with his brothers went to cut a "Jore" tree from their own land at village Ketlapur. At that time the accused persons being armed with deadly weapons, namely, Tangi, sword, axe, iron rod etc. attacked the informant and his brothers. As a result, Swarupananda Mahato, the brother of the informant sustained severe injury and was shifted to Purulia Sadar Hospital. The informant and his brother Sudhanshu were treated at Para hospital. It has been stated that the "Jore" tree was standing on plot No. 1175. After completion of investigation the charge sheet was submitted. The learned Trial Judge framed charges under sections 148, 324/34 of the Indian Penal Code against nine accused persons. The learned Judge also framed a separate charge under section 307 of the Indian Penal Code against accused Mathura Prasad Mahato. The accused persons pleaded not guilty and claimed to be tried. 3. MR. Mukherjee, learned Counsel appearing for the appellants submits that three persons have been convicted and the other accused persons have been acquitted of the charges. It is submitted that the learned Judge acquitted appellants of the charges under sections 148 and 324/34 of the Indian Penal Code. MR. Mukherjee contends that so far as the charge against appellant Mathura Prasad Mahato under section 307 of the Indian Penal Code is concerned, there is no mention of the time of the alleged occurrence. It is submitted that the plot number has also not been mentioned in the charge. MR. MR. Mukherjee contends that so far as the charge against appellant Mathura Prasad Mahato under section 307 of the Indian Penal Code is concerned, there is no mention of the time of the alleged occurrence. It is submitted that the plot number has also not been mentioned in the charge. MR. Mukherjee submits that there was nothing to show that the injured were referred to Purulia Sadar Hospital and were treated there. It is submitted that no document from Purulia Sadar Hospital is forthcoming. MR. Mukherjee contends that the "Jore" tree stands on plot No. 1176 as stated by the B.L.L.R.O. (P.W 3) and the report of the B.L.L.R.O. has been marked exhibit 6'. 4. IT is submitted that none of the injured persons stated the name of the assailant before the doctor. IT is submitted that the incident took place on 23rd March, 1996 and the injured Swarupananda was examined on 16.5.1996. IT is submitted that not a single independent witness has been examined in this case. Mr. Mukherjee has referred to and cited the decision reported in AIR 1924 Calcutta 323 [Mamfru Chowdhury and Ors. v. King - Emperor]. Mr. Siladitya Sanyal appearing on behalf of the State submits that the injured persons have been examined in this case and the injury sustained by Swrupananda Mahato (P.W. 4) was grievous. Mr. Siladitya Sanyal submits that the "Jore" tree stands on the land of Kashinath. It is contended that the complainant and his brothers were not armed with any weapon. Mr. Sanyal puts much stress on the evidence of P.W. 1, P.W. 2, P.W. 4 and P.W. 9 and submits that there is corroboration in the evidence of the injured persons. Mr. Sanyal submits that there is no disparity with the ocular version. It is contended that the injury sustained by P.W. 4 on the head which was inflicted with the help of axe was sufficient to cause death, in as much as, the axe was a dangerous weapon. Mr. Sanyal has referred to and cited the decisions reported in (2010) 2 SCC (Cri) 1238 [Shaukat v. State of Uttaranchal] (Paragraph-27); (2008)3 SCC (Cri) 472 (Paragraph - 12) [DineshKumar v. State of Rqjasthan]; (2009)1 SCC (Cri) 339 [Ashok Kumar Chaudhary and others v. State of Bihar] (Paragraphs - 14, 22); 5. Mr. Sanyal has referred to and cited the decisions reported in (2010) 2 SCC (Cri) 1238 [Shaukat v. State of Uttaranchal] (Paragraph-27); (2008)3 SCC (Cri) 472 (Paragraph - 12) [DineshKumar v. State of Rqjasthan]; (2009)1 SCC (Cri) 339 [Ashok Kumar Chaudhary and others v. State of Bihar] (Paragraphs - 14, 22); 5. AT the very outset it appears that in the complaint the informant has mentioned that the incident took place on 23rd March, 1996 at about 11.00 A.M. at Ketlapur Mouza. The injured witnesses, namely, P.W. 1, P.W. 2, P.W. 4 have also stated about the time and place of the occurrence. So far as the charges under sections 148, 324/34 framed against nine accused persons are concerned, the time and place of the alleged occurrence were mentioned. But in the charge under section 307 of the Indian Penal Code against Mathura Prasad Mahato, the time of the occurrence was not mentioned. Since in the complaint and in the evidence of the PWs the time and place of the occurrence have been categorically mentioned, the non-mentioning of the time of occurrence in the charge would not be fatal to the prosecution case. In the case reported in AIR 1924 Calcutta 323 as referred to and cited by Mr. Mukherjee it would appear that there was divergence as to the time of the occurrence. The observation as made in paragraph 3 of the aforesaid case is quoted hereunder: "...............As the Sub-Divisional Magistrate pointed out in his order of commitment, there is a divergence as to the time of the occurrence. According to the complainant, it is stated to be about 1 or 2 P.M.; the Sub-Inspector of Mangdaw in his case diary shows the hour of occurrence at 7 A.M. in the heading, but in the body there is an erasure so as to make the time 2 P.M................" 6. IN view of such difference in factual aspect, we are of the considered view that the aforesaid case is not attracted in the circumstances of the instant case. P.W. 1 Bikash Chandra Mahato, the informant has stated that the incident took place on 23.3.1996 at about 11.00 A. M.; he and his brothers went to cut a "Jore" tree situated at Ketla Mouza; they were cutting the tree with the help of labourers Madan Mahato and Amar Baidyakar; at that time the accused persons came and attacked them. P.W. 1 Bikash Chandra Mahato, the informant has stated that the incident took place on 23.3.1996 at about 11.00 A. M.; he and his brothers went to cut a "Jore" tree situated at Ketla Mouza; they were cutting the tree with the help of labourers Madan Mahato and Amar Baidyakar; at that time the accused persons came and attacked them. P.W. 1 has categorically stated that he was hit on his left shoulder by Madhusudan Mahato with the help of lathi causing injury on his left shoulder joint, left wrist and right elbow. In the cross-examination he has stated, that he was not holding any cutting instrument for felling the tree; his labourers were holding the cutting instrument such as 'kural'. 7. P.W. 2 Sudhangsu Mahato has stated that he was assaulted by Dharani Mahato on head with the help of Tangi and the accused had bitten him on his cheek. He has stated that Swarupananda Mahato and Bikash Mahato were also assaulted; Swarupananda was treated at Para PHC and thereafter shifted to Purulia Hospital and then to Ranchi Hospital for treatment. 8. P.W. 4 Swarupananda Mahato has stated that Mathura assaulted him on his head by means of axe causing serious injury; he fell on the ground; he was taken to Para hospital and from there to Sadar Hospital and ultimately shifted to Ranchi Hospital, that is, Nagarmal Modi Seva Sadan where he was treated by Dr. H. P. Narayan. P.W. 5 Deb Shankar Mahato has also stated about the infliction of assault upon Swarupananda, Bikash and Sudhanshu. 9. P.W. 6 is Madan Mahato who was engaged for cutting the tree. He has stated that 6/7 years ago at about 10.30 A.M. he was taken by Bikash, Sudhangshu, Swarupananda and Upananda to that place for cutting a tree; he and Amar Baidyakar were cutting the tree and at that time the accused persons attacked Sudhangshu and others. 10. P.W. 9 Dr. Kabita Vijoy has stated that on 23rd March, 1996 she was posted at Para PHC as Medical Officer; on that date she examined Swarupananda Mahato and found severe bleeding injury on the head; the patient was in shock and as per his condition he was referred to Purulia Sadar Hospital for better treatment; she has stated that according to the patient, weapon used was "Kudal". It is in her evidence that the type of injury was serious and age of the injury was recent. P.W. 9 has also examined Sudhangshu Mahato and found injury over the scalp 1" x 1/3" x 1/3"; there was small abrasion over the left angle of the mouth. 11. P.W. 9 has also examined Bikash Mahato and found pain and swelling over the left shoulder joint and there was small injury over the right elbow joint. The injury report has been marked exhibit - 7. In the cross-examination she has stated that since the patient Swarupananda was bleeding profusely and in shock, he described the injury as grievous; there was no infrastructure for scientific treatment and diagnosis in the PHC. 12. MR. Sanyal by referring to the case of Ashok Kumar Chaudhary and others v. State of Bihar (supra) (paragraphs 14 and 22) submits that the evidence of the injured witnesses should not be discarded. Exhibit 7 is the injury report issued by Para PHC and exhibit 6 is the injury report issued by Nagarmal Modi Seba Sadan. P.W. 8 Dr. H.P. Narayan has stated that he was attached to Nagarmal Modi Seva Sadan Hospital, Ranchi. He has proved the medical report in respect of Swarupananda Mahato. He has stated that there was C.T. Scan showing comminuted depressed fracture of the left parietal region and the nature of injury was grievous; there was non-hemorrhage contusions. 13. FROM the evidence of the injured witnesses as discussed above it is clear that accused Mathura Prasad Mahato dealt the blow on the head of Swarupananda Mahato with the help of axe causing severe injury. It is also clear that P.W. 1 Bikash Mahato was assaulted by Madhusudan Mahato by means of lathi and P.W. 2 Sudhangshu Mahato was assaulted by Dharani Mahato with the help of tangi. The ocular version finds corroboration from the medical evidence. So far as the infliction of assault as per the prosecution case is concerned, the evidence of the PWs is worthy of credence. 14. ON the point of evidentiary value of related witnesses, Mr. Sanyal has referred to and cited the case of Shaukat v. State of Uttaranchal (supra). It has been observed in paragraph 27 of the aforesaid decision as follows: "ON reappraisal of the testimony of the three witness, this Court finds that the version presented by them before the court inspires confidence. Sanyal has referred to and cited the case of Shaukat v. State of Uttaranchal (supra). It has been observed in paragraph 27 of the aforesaid decision as follows: "ON reappraisal of the testimony of the three witness, this Court finds that the version presented by them before the court inspires confidence. Though each of them was subjected to searching cross-examination, nothing could be brought on record to impeach credibility of any of them. It is relevant to notice that one of the eyewitnesses was injured Rahmat himself. Therefore, his presence at the place of incident can hardly be doubted. He being the real brother of the deceased and he himself having received injuries, would not allow the real culprit to go scot-free and involve innocent persons falsely." In the instant case, the three brothers were injured and their testimony on the ground of being the near relations cannot be disbelieved. Their evidence is cogent, credible and truthful. 15. MUCH has been argued by Mr. Mukherjee on the point of possession of the land where the "Jore" tree stands. Mr. Mukherjee contends that as per the prosecution case the "Jore" tree stands on plot No. 1175, but, the BLLRO (P.W. 3) has stated that the tree stands on plot No. 1176. Mr. Mukherjee further contends that there was a counter case over the selfsame incident as it would appear from the evidence of the PWs. We are of the considered view that the location of the "Jore" tree in plot No. 1176 as told by the BLLRO would not cast any shadow of doubt on the veracity of the prosecution case so far as the infliction of assault is concerned. The evidence of the PWs examined in this case cannot be discarded merely on the ground that the counter case has been lodged. 16. The learned Trial Judge held that the charges under sections 148 and 34 of the Indian Penal Code were not attracted. It, therefore, remained the individual acts of the each of the accused persons for which the learned Trial Judge recorded the conviction and passed the sentence as stated above. 16. The learned Trial Judge held that the charges under sections 148 and 34 of the Indian Penal Code were not attracted. It, therefore, remained the individual acts of the each of the accused persons for which the learned Trial Judge recorded the conviction and passed the sentence as stated above. Having considered the entire evidence on record and after considering the submissions made by the learned Counsel appearing for the parties we affirm the conviction and sentence passed by the learned Trial Judge so far as the appellant No.2 Dharani Mahato and appellant No.3 Madhusudan Mahato are concerned. Having regard to the circumstances of the case, nature of injury inflicted, we are of the considered view that it would meet the ends of justice if the appellant No. 1 Mathura Prasad Mahato is sentenced to suffer R.I. for five years and to pay a fine of Rs. 1,000/- in default to suffer R.I. for one month. Accordingly, while maintaining conviction we sentence the appellant No.1 Mathura Prasad Mahato to suffer R.I. for five years and to pay a fine of Rs. 1,000/- in default to suffer R.I. for one month under section 307 of the Indian Penal Code. The impugned judgment in respect of the sentence of appellant No. 1 Mathura Prasad Mahato is modified accordingly. The appellant No. 1 Mathura Prosad Mahato is directed to surrender within one month from this date before the Learned Trial Court to serve out the sentence, in default the Learned Trial Court will take necessary steps according to law. 17. The appeal is allowed in part. Let a copy of this judgment along with the Lower Court Records be sent to the learned Court below immediately. Appeal partly allowed.