Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 1120 (JHR)

Tapan Mahto v. State of Jharkhand

2016-07-22

RATNAKER BHENGRA

body2016
JUDGMENT : This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 5th December, 2002 passed by the 2nd Additional Judicial Commissioner, Khunti in connection with Sessions Trial Case no. 597 of 1992 corresponding to G.R. Case no. 660 of 1991, Sonahatu P.S. Case no. 54 of 1991, whereby the appellant has been held guilty for the offence punishable under sections 323 of the Indian Penal Code and sentenced to undergo R.I. for six months. 2. The case of prosecution, as per written report of PW2 Makhan Lal Mahto, is that on 20.11.1991, at about 7 p.m., when he was at his home suddenly he heard that his father Birbal Mahto raised alarm “run run I am being assaulted” . On hearing the said alarm the informant and his jetha Sobha Mahto reached near peeple tree and saw that Umesh Mahto, Tapan Mahto and Bhakalu Harijan were assaulting father of the informant and Umesh Mahto said to kill his father. When the informant and his jetha tried to save Birbal Mahto they were also assaulted. The father of the informant was assaulted with sticks on his head due to which he sustained head injury. Just then villagers Ram Singh Mahato and Fekna Maahto assembled there and accused persons fled away from there. However, they have seen the incident. 3. On the basis of written report of informant PW2, Sonahatu P.S. Case no. 54 of 1991 under Section 307,323,325 I.P.C. was registered against the appellant and others. After due investigation, charge sheet was submitted and, accordingly, cognizance was taken and case was committed to the Court of Sessions and registered as Sessions Case no. 597 of 1992. 4. The appellant stood charged for the offence punishable under sections 307,325,323 I.P.C. to which he pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether six witnesses and they are as follows: PW1 Birbal Mahto, PW2 Makhan Lal Mahto, PW3 Ram Singh Mahto, PW4 is Fekna Mahto, PW5 Sridhar Mahto and PW6 is Sobha Mahto. 5. The learned Trial Judge placing reliance on the evidence and documents available, held the appellant guilty u/s 323 IPC and inflicted sentences as indicated above. Hence, this appeal. 6. PW1 Birbal Mahto R/o Rahe Nawagaon, Sonahatu P.S. in his deposition he has stated that the incident is of 20.11.1992 about eight years ago. 5. The learned Trial Judge placing reliance on the evidence and documents available, held the appellant guilty u/s 323 IPC and inflicted sentences as indicated above. Hence, this appeal. 6. PW1 Birbal Mahto R/o Rahe Nawagaon, Sonahatu P.S. in his deposition he has stated that the incident is of 20.11.1992 about eight years ago. It was 7:15 in the evening and he was sitting under the peeple tree beside the road alone. Nearby Bhakru Harijan, Umesh Mahto and Tapan Mahto were present. Tapan Mahto came and hit him from the back on his head. He fell down in pain there itself and a lot of blood started flowing. Even after he had fallen down he continued to assault him. His left knee was broken. There is a rod inserted in it. Then he made alarm then Ram Singh Mahto, Degna Mahto and Sridhar Mahto arrived there. On this Tapan and others fled away. Then they took him to his house. Thereafter, his son took him to Rahe O.P. and also informed the police. The police arrived at the home and after seeing him sent him to Sonahatu P.S. Doctor from Sonahatu saw him and then he was taken to Bundu hospital. Thereafter, he was taken to Barnabas Hospital, Ranchi where he has spent twelve days. He was treated there. He has recognized Tapan Mahto in Court. He has further deposed that his son Makhan Lal Mahto informed the police station first. In his cross-examination he has deposed that the illness in his eye is after the incident. Five to six years now there is problem in the eye. Spectacles was there. During the assault he was not wearing it. Road near the peeple tree is four way crossing and peeple tree is in Nawagaon and this village consists of 90100 houses. Peeple tree is in west of his house at about forty yards away. In front of the peeple tree there is houses of his two brothers and also there is houses of Logo Munda, Sridhar Mahto and others. At a distance of 20 yards there are other houses too. He was sitting under the tree and enjoying breeze. While sitting there he did not have anything in his hand. There was towel wrapped on his head. It was cold. At a distance of 20 yards there are other houses too. He was sitting under the tree and enjoying breeze. While sitting there he did not have anything in his hand. There was towel wrapped on his head. It was cold. Due to blood his towel and vest became wet which were seen by the police but they returned the same to him. He did not go to Rahe O.P. but his son had gone there. After reaching home he fell unconscious and he regained consciousness in Sonahatu hospital. However, he again said that he was in conscious state but was unable to walk. He had shouted three or four times. Ram Singh, Fekna, Sridhar are not his relatives. His son has a good relationship with their daughters. He did not go with Fekna. When he was taken to his home then his brother had taken him on a bullock cart. On that night about 20 to 30 persons from the village had come. Right beside his house is the house of Logo Munda and he does not have any enmity with him. The police had questioned him. Whether they had questioned him in his house or not he does not remember, also he does not remember the dates and days. Police had questioned him many days after his return from hospital. Tapan is not related to him and he is from Nawagaon and he does not have any landed dispute with him. The Peeple tree is very large and it was very leafy. There is no sitting place constructed around the peeple tree but only 56 bolders were kept there. There is a health center in Nawagaon but doctor does not stay there. The Tola of Nawagaon is in Patherdih and the nurses stayed in Patherdih. Patherdih and Nawagaon is next to each other. He has further deposed that he does not know that with whom his son went to Rahe O.P. and he does not even know what he has written and given there. Nor does he know how his son went there. After being hit by the stick on the spot where he was sitting he had fallen down on the ground. After he had fallen down repetitive assaults were made on him. Four to five times he was beaten by the stick, he was hit on the back. Nor does he know how his son went there. After being hit by the stick on the spot where he was sitting he had fallen down on the ground. After he had fallen down repetitive assaults were made on him. Four to five times he was beaten by the stick, he was hit on the back. He was hit on the head then on his knee then he shouted and made alarm. He does not have any ancestral dispute with Tapan. Johar Mahto's house is there and at a distance of ten yards away from the peeple tree there is house of Ram Lal Mahto. He has no enmity with these persons. Hariya and Nageshwar Mahto had also their houses there. 7. P.W.2 Makhan Lal Mahto he is the son of Birbal Mahto. He has deposed that the incident is of eight years ago on Wednesday. The time was at 7 in the evening and he was then in his house. Suddenly, he heard the sound of 'help help' being shouted by his father Birbal Mahto. On hearing the alarm some people came out. He saw that his father had fallen on the ground due to assault made by Tapan who had hit him with stick. He ran to his father and on reaching there he saw that blood was oozing from his head and he was injured there. Tapan assaulted him on his head. When attempt was made to lift his feet he noticed that his left feet was not straightening. The knee cap was broken. Tapan had also assaulted them. Sona Mahto and he were assaulted. When many more people started gathering then accused ran away. Then he took his father home and went to inform the police. The police came to his house and then he was taken to the police station from there he was taken to Barnawas hospital because RMCH was on strike. His father stayed in the hospital for twenty days. His father's knee does not turn down. There is a rod inserted in it. He recognized Tapan Mahto in court. He has also stated that he had received simple injury on his right arm. He had given written complaint at the police station and he had identified his written complaint which was in his pen and signature. He has proved it and marked as Ext. 1. There is a rod inserted in it. He recognized Tapan Mahto in court. He has also stated that he had received simple injury on his right arm. He had given written complaint at the police station and he had identified his written complaint which was in his pen and signature. He has proved it and marked as Ext. 1. In the cross-examination he has deposed that during the time of assault it was night but people had not gone to sleep and they had eaten their food at night. He had reached the place of occurrence first of all after which Sona Mahto had come and after which Fekna and other people from the village had come. Only Tapan Mahto had assaulted them and Tapan Mahto had also assaulted his father and him. He has further stated that why the assault took place he is not aware of it. Prior to his occurrence, there was friendship between the accused and at the place of occurrence the blood had splinted. The police had not seized the blood stained soil. He went immediately to the police station. The police station is at a distance about 1.5 k.m. from there. There itself some entries were made and the police reached to the place of occurrence within an hour. At night he had not gone there in the morning he went to Sonahatu P.S. He had taken his father on a bullock cart to Sonahatu P.S.. They had left at 4 O'clock in the morning and Sonahatu P.S. is at a distance of 12 15 k.m. from his house. They had reached the police Station at about 7 to 8 O'clock. They had not written anything and given there. His father was treated in Sonahatu P.S. and they sent to Ranchi and due to strike in RMCH he was treated privately. Birbal Mahto is the name of his father and Sona Mahto is his elder uncle. 8. Learned counsel for the appellant has submitted that in this case some of the vital defects are that there has been no examination of doctor and even no medical report has been produced and in absence of medical report the charge of section 323 is not possible to establish. 8. Learned counsel for the appellant has submitted that in this case some of the vital defects are that there has been no examination of doctor and even no medical report has been produced and in absence of medical report the charge of section 323 is not possible to establish. She has further submitted that there is no examination of I.O. also and in absence of non-examination of I.O. many aspects of the case were not put to him for either being proved or to discard and in the circumstances that he has not been examined the benefit should go to the appellant. She has submitted that from the record it is evident that Birbal was assaulted from behind by the appellant. It is evident from the deposition of PW1 and PW2 that it was not possible for him to see who had assaulted Birbal. She has further stated that it was in the evening and some instances it has been said that it was 7 p.m. and another it has been said that it was 8 p.m. Nevertheless, in November, winter night, it is by then quite dark so it will not be possible for him to see who has assaulted him particularly, when it has come on record that attack was done from behind. Due to the manner of attack there is no way that he could have told with certainty who was responsible for the attack. She has referred again to the lack of examination of the IO she has said that since it is said that he was attacked in the village near the people three and there is reference to bleeding then it was essential that the IO to go to the place of occurrence and to see whether at the alleged place of occurrence any bleeding had taken place which could have been possible by examination of the soil at that place which would have been blood stained and since that has not been done so the place of occurrence is also not established combined with the fact that there is no injury report as such it is doubtful whether the assault actually took place. She has also cast aspersions on the evidence of PW1 and PW2 who are father and son by saying that PW1 has said that incident is of 7 p.m. while PW2 said that the incident is of 8 p.m. so she said that there is no certainty even regarding the time of the incident and in that case it would appear that the allegations are doubtful in nature. She has further stated that PW2 only arrived as it has been submitted on the alarm (hulla). Hence, PW2 is a hearsay witness not eye witness to the assault. She has also pointed out para 19 of the impugned judgment where it is indicated that it was not he who took to the house. So he is not even amongst those persons so his presence during the assault is very doubtful and when he is not present at the assault it would be difficult for him to say who had actually assaulted his father. She has also stated that even one of the witnesses who has given evidence PW6 has also not supported the assault and submitted that he has not seen anything. Since injured witness has not supported the case of prosecution this raised doubt as to who were then the assailants because he was injured and the natural and logical next step was to complain about the assailants which he has not done and since his injury also pertains to the same day of incident and he himself has not mentioned any assailants then it also creates doubt that who had hit him. She has referred to the judgment and submitted that learned Judge has stated that charge has been framed u/s. 323, 325 and 307 IPC but the doctor has not been examined. In the absence of evidence of doctor it is not possible to hold the accused guilty for the offence u/s 307 and 325 IPC. Further learned counsel has stated that in absence of examination of doctor if it is not possible to held the appellant guilty u/s 307 and 325 IPC, the same logic would apply with regard to Section 323 IPC. She has also stated that allegations are general in nature and all the assaults attributed to all of the accused persons but conviction has been specifically brought against the appellant. 9. She has also stated that allegations are general in nature and all the assaults attributed to all of the accused persons but conviction has been specifically brought against the appellant. 9. Learned A.P.P. has read out the written report and said that it is very apparent from the written report that assault was made by three of them and PW1 and PW2 are direct witnesses of which PW1 is an injured witness and other witnesses like PW3, PW4, PW5 and PW6 have also supported the case of prosecution that they have seen PW1 fallen down and injured. Learned A.P.P. has said that there is no doubt that assault took place. PW3, 4, 5 and 6 may not have said who was the assailant but they have not denied that PW1 had fallen down and was injured which has been indicated that something did take place. He has also said that although PW1 and PW2 have supported the case of prosecution but there is also medical discrepancies. Further what they have said in the examination-in-chief they have supported the same in their cross-examination. He has further submitted that the evidence of PW1 is very logical and believable because he was injured victim and he has been consistent in his evidence. Referring to the evidence of PW2 he said that PW2 had gone to respond to the alarm of “help help” made by his father and saw that the appellant had assaulted his father and his father had fallen down and that his knee cap had broken. Further they were also assaulted and it is only when others came the accused ran away. He has further stated that his father is still suffering from the injury, even now. He has also said that in the cross-examination of P.W.2 the name of appellant has come specifically. 10. Having heard counsels and seen the records, I find that the incident is of 1991, but the deposition are made in between 1999 and 2001, so some discrepancies in the evidence may be expected, but the allegation of assault and who PW1 was assaulted by has remained the same. However, the fact, that the prosecution case of the assault as narrated by the PW2, had been supported even after such a long gap would lead credence to the assault having taken place. However, the fact, that the prosecution case of the assault as narrated by the PW2, had been supported even after such a long gap would lead credence to the assault having taken place. The learned A.P.P. has said that even PW3, PW4, PW5, PW6 had seen PW1 fallen down and injured, which would only mean that some thing or an assault had taken place. So even if they have been declared hostile, to the extent they do not deny the incident, and at least they say that they saw PW1 fallen and injured indicates something grave had taken place. In this light, the lack of examination of the I.O. and the doctor to test the credibility of whether an occurrence had taken place or not, would not be necessary. 11. PW1 in his deposition has referred to the illness of his eyes and said it was after the incident. He has not been challenged on this. It is to be noted that PW1 deposes about being hit on the head and hence, in court also he refuses to his injury on the knee being made by the assailants. In court, he had also indicated that there was a rod inserted in his knee, apparently as a result of the assault, and he has not seen challenged and contradicted on this point. 12. PW2, Makhan Lal Mahato, the informant and son of PW1 has also deposed in court regrading the injuries of his father. He had gone there and seen that blood was oozing from the head of his father. He even said that the left feet of his father was not becoming erect, and that now his father's knee does not turn and there is a rod inserted on it. The injuries as claimed by PW2, is also existing many years after the incident, in fact, they seen permanent, and there has no challenged or contradiction made to it when the deposition were made. In fact, it seems in court it was more or less accepted as a testimony to what happened on 20.11.1991. PW2 has proved his written report in court, which has been marked as Ext. 1 which would indicate that the matter was reported to the police and given the injuries indicated, it would not be a false case. 13. In fact, it seems in court it was more or less accepted as a testimony to what happened on 20.11.1991. PW2 has proved his written report in court, which has been marked as Ext. 1 which would indicate that the matter was reported to the police and given the injuries indicated, it would not be a false case. 13. Regarding evidence of PW3, 4, 5 and PW6, though declared hostile, they have stated that they had seen PW1 fallen and in injured state, which would only indicate that an incident had taken place. So in spite of the various arguments advanced by the counsel for the appellant, the main fact of assault and injuries cannot be discarded. 14. Therefore, the conviction of the appellant, Tapan Mahato for the offence under section 323 IPC is upheld. However, this is an old case, dating back to 1991, and it is almost 25 years since then, he must have been to a lot of hardships pertaining to the trial. He has also suffered imprisonment. Hence, his sentence is modified to the period already undergone. He is discharged from the liabilities of his bail bond and set at liberty. 15. Instant appeal is disposed of with modification in sentence.