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2012 DIGILAW 75 (JHR)

Vijay Gorai v. State of Jharkhand

2012-01-13

D.N.UPADHYAY

body2012
JUDGMENT D.N. Upadhyay, J.--This appeal has been preferred against judgment of conviction and sentence dated 20.1.2003 passed by the 1st Additional Sessions Judge. Jamtara, in Sessions Case No. 252 of 1999 /Sessions Case No. 8 of 2001 arising out of Jamtara Brindapathar PS Case No. 99 of 1997 whereby the appellant Manohar Routh has been held guilty for offences punishable under Section 323 of the Indian Penal Code and accordingly sentenced to undergo rigorous imprisonment for one year. whereas appellant No. 1 Vijay Gorai has been held guilty for offences punishable under Sections 326/307 IPC and accordingly sentenced to undergo rigorous imprisonment for four years and also to pay fine of rupees one thousand under Section 326 IPC and in default of payment of fine, to undergo further rigorous imprisonment for six months, rigorous imprisonment for five years and fine of rupees one thousand under Section 307 of the Indian Penal Code, and in default of payment of fine, to undergo further rigorous imprisonment for six months. 2. The prosecution case, as it appears from the written report lodged by Panchanan Mahato PW 3 is that on 12.10.1997 at 9.30 p.m.- 10.00 p.m. the informant along with his cousin brother Madhav Chanda Mahato had been to the pond for the purpose of watching. They had noticed a nylon net put by someone in the pond for fishing. When they we e trying to collect the net from the pond, the appellant Manohar Routh appeared from behind and caused injuries to the informant by means of lathi. Madhav Chandra Mahato flashed torchlight, and they saw that the appellant Vijay Goral was having a barcha in his hand who also caused injuries to them. In course of running from the place of occurrence, the informant and his companion Madhav Chandra Mahato were further assaulted by other four accused who joined the former accused. During hulla, Sukhmoy Mahto and Mantu Rajak assembled and they helped the informant and the injured in bringing them home. On the following morning (13.10.1997), the matter was reported to the Police and case being Jamtara (Binda Pather) PS Case No. 99/1997 under Sections 447/323/324/34 IPC against the appellant Manohar Rout and other five accused named in the FIR was registered. On the following morning (13.10.1997), the matter was reported to the Police and case being Jamtara (Binda Pather) PS Case No. 99/1997 under Sections 447/323/324/34 IPC against the appellant Manohar Rout and other five accused named in the FIR was registered. After completion of the investigation, charge sheet was submitted against all the six accused who were put on trial after framing of charges under Sections 341/147/323/324/326/307 and 379/511/34 of the Indian Penal Code. 3. The prosecution had examined altogether eight witnesses to substantiate the charges. 4. Learned counsel for the appellants has argued that in the written report, the informant had not disclosed that the assault was caused by the appellant Vijay Gorai to Madhav Chandra Mahto by means of barcha rather, he had stated that he was assaulted by Manohar Routh by means of lathi and further assaulted by the appellant Vijay Gorai by means of barcha on his head. The manner of occurrence as disclosed by the informant in the written report does not find support from the evidence on record as well as the medical report. The written report was lodged on the following morning, but even then this fact is missing that Madhav Chandra Mahato had sustained injuries on his head which was caused by means of barcha by the appellant Vijay Gorai. The Investigating Officer has not been examined. No independent witness has supported the prosecution case; rather Mantu Rajak PW 6, Uma Pada Rajak (PW- 7) and Manoj Rajak (PW 8) have turned hostile and they have not supported the prosecution case to any extent. Rest of the witnesses i.e. PW 1 Anandi Mahato and PW 2 Sukhmoy Mahto are relatives of the informant and the injured and they are highly interested witnesses. Learned counsel has further raised a point that barcha appears to be a weapon which may cause piercing wounds, but the injured Madhav Chandra Mahato did not sustain any piercing wound. As per medical report, he was having incised wounds caused by tangi and this fact finds support from the narration of the Doctor Damodar Yadav PW 4. It is also brought to my notice that other four accused who were charged for the same offence have been acquitted by the learned Sessions judge, which indicates that the prosecution has not come with fair hands and they had tried to implicate persons who were not involved in the incident. 5. It is also brought to my notice that other four accused who were charged for the same offence have been acquitted by the learned Sessions judge, which indicates that the prosecution has not come with fair hands and they had tried to implicate persons who were not involved in the incident. 5. On the other hand, learned counsel appearing on behalf of the State has vehemently opposed the arguments and submitted that it is not expected that FIR should contain all details of the incident. FIR is only for the purpose of corroborating and contradicting the maker of it. No contradiction has been taken from any witness during their cross examination and therefore the evidence of Pws Anadi Mahato, PW 2 Sukhmoy Mahato, PW 3 Panchanan Mahato and PW 5 Madhav Mahato stands intact. 6. I have carefully gone through the evidence on record; documents proved and the impugned judgment. I do agree with the arguments advanced by the learned counsel for the State that the FIR is not an encyclopaedia of the incident. It is an earliest information of a cognizable offence which put the law in motion. The informant (PW 3) has supported the prosecution case as made out by him in the FIR. Only because he had not given details of the injuries caused to Madhav Chandra Mahato by the appellants, the version of the informant (PW 3) cannot be disbelieved. The injuries sustained by the informant find support from the medical report and the evidence of PW 4 Dr. Damodar Yadav. Madhav Chandra Mahato (PW 5) is another injured and his presence at the time and the place of occurrence along with informant Panchanan Mahato could not be disbelieved only because the assault caused to him did not find mention in the written report. Madhav Chandra Mahato (PW 5) has clearly stated in his evidence that he was assaulted by means of barcha by the appellant Vijay Gorai. So far as the nature of the weapon known as barcha and injuries likely to be caused by such weapon are concerned, it was not disclosed or discussed in the evidence either by the prosecution or the defence and therefore the argument that any such wound could not be possible by barcha is also not tenable. So far as the nature of the weapon known as barcha and injuries likely to be caused by such weapon are concerned, it was not disclosed or discussed in the evidence either by the prosecution or the defence and therefore the argument that any such wound could not be possible by barcha is also not tenable. Madhav Chandra Mahato had sustained four wounds on his skull which has been proved by the medical report and the evidence of the doctor PW 4. The evidence of Pws 3 and 5 finds support from the evidence of PW 2 Sukhmoy Mahato and PW 1 Anandi Mhato, who were attracted towards the incident after hearing the alarms raised by the injured and the informant. The only point to be considered is whether the conviction and sentence passed under Section 307/IPC against the appellant Vijay Gorai could be upheld? The evidence on record indicates that the appellants had dropped a net in the pond for the purpose of fishing for which they were not authorised. When the informant and Madhav Mahato had taken note of that, the appellants caused assault to the informant and his companion. At the time of occurrence, the appellants had an opportunity to commit murder because there was no intervening circumstance at the place of occurrence, and the injuries appearing on the person of Madhav Chandra Mahato suggest that it was caused hurriedly without having any intention to kill him. In view of the above, I am not inclined to uphold the judgment of conviction and sentence under Section 307 IPC passed against the appellant Vijay Gorai and therefore judgment of conviction and sentence passed under Section 307 IPC stands set aside. Since Madhay Chandra Mahato had sustained grievous injuries caused by sharp cutting weapon, I do not feel that there is any need to interfere with the impugned judgment on this aspect. 7. Manohar Routh appellant has been held guilty under Section 323 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for one year. Since Madhay Chandra Mahato had sustained grievous injuries caused by sharp cutting weapon, I do not feel that there is any need to interfere with the impugned judgment on this aspect. 7. Manohar Routh appellant has been held guilty under Section 323 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for one year. Considering this aspect and the fact that the prosecution has not brought on record his previous conviction or implication, if any, in other case(s), conviction of appellant Manohar under Section 323 IPC is upheld, but with modification in the sentence that he shall be released on his furnishing bond of rupees five thousand with one surety of the like amount to maintain piece for a period of one year under Section 4 of the Probation of Offenders Act. The conviction and sentence passed under Section 326 of the Indian Penal Code against appellant Vijay Gorai stands upheld. 8. With the modification in the sentence, as indicated above, this appeal is dismissed. Appeal dismissed.