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2016 DIGILAW 1154 (JHR)

Pawan Mahto v. State of Jharkhand

2016-07-27

RATNAKER BHENGRA

body2016
JUDGMENT : This criminal appeal is preferred against the judgment of conviction and order of sentence dated 16th June, 2003, passed by the learned Court of 1st Additional Sessions Judge, Saraikella in S.T. No. 52/1992, whereby and whereunder, the learned Court of 1st Additional Sessions Judge has been pleased to convict the appellant for the offence under Section 324 of the Indian Penal Code and sentenced the appellant to undergo simple imprisonment of 3/2 years and Rs. 1,000/ - by way of fine for the offence under Section 324 of the Indian Penal Code and he further was sentenced to simple imprisonment for one month in default of payment of fine. 2. Prosecution case, as given in the fardbeyan of Sarad Chandra Mahto, son of Ganesh Mahto of village Baradhouladih, PS Rajnagar, District-Singhbhum, recorded by ASI, R.B. Singh of Rajnagar police station on 26.08.91 at 22:15 hours at PHC Rajnagar, is that the said Sarad Chandra Mahto on Monday at around 10:15 p.m. has given his statement and he has stated that he was going home at around 5:00 p.m. after returning from his agricultural field and when he reached near the house of Dewa Mahto then he saw that Hari Mahto and Mohe Mahto were fighting with each other. Then he went to make peace between them and when he told them to desist from fighting, they got into altercation with him and said because of this cheat, our disputes keep taking place and so kill him. Just then, from the same village Makru Mahto and Pawan Mahto both came, carrying iron rod and stick respectively and started assaulting him. Makru Mahto came with Tawla (sharp cutting weapon) and said that today his life will be taken and assaulted him on his head, due to which, he fell down on the ground. He tried to stop him but even then the weapon struck him and blood started flowing from his head. He was also assaulted by others with sticks. Then other villagers, namely, Dewa Mahto and others came and saved him. Reason for the altercation is that Dukhu Mahto's daughter is having relationship with his son Shankar Mahto. 3. On the basis of the fardbeyan of Sarad Chandra Mahto, Rajnagar P.S. Case No. 60/1991, under Sections 323/324/341/307/34 of the Indian Penal Code was registered against the five accused persons. 4. The police, after due investigation, submitted charge-sheet. Reason for the altercation is that Dukhu Mahto's daughter is having relationship with his son Shankar Mahto. 3. On the basis of the fardbeyan of Sarad Chandra Mahto, Rajnagar P.S. Case No. 60/1991, under Sections 323/324/341/307/34 of the Indian Penal Code was registered against the five accused persons. 4. The police, after due investigation, submitted charge-sheet. Accordingly, cognizance was taken and the case was committed to the Court of Ist Additional Sessions Judge, Saraikella and registered as S.T. No. 52/1992. 5. Charges were framed, to which the accused pleaded not guilty and claimed to be tried. To substantiate the charges, prosecution has examined altogether six witnesses. After conclusion of the trial, learned trial Court held four persons guilty, except Maheshwar Mahato, under Section 324 of the Indian Penal Code. However, on the basis of age and keeping in view that it was their first offence, they were given lenient consideration and the rest three accused, except Pawan Mahato, were directed to be released on probation bond of Rs. 5,000/- each for the period of one year. Pawan Mahto was sentenced to undergo simple imprisonment 3/2 years and Rs. 1,000/- by way of fine under Section 324 of the Indian Penal Code and further sentenced to undergo simple imprisonment of one month in default of payment of fine. Hence, this appeal by the appellant-Pawan Mahto. 6. PW 5 in his deposition has stated that the occurrence is of 8-9 years ago and it was around 5:00 p.m. on Monday in the month of 'bhado' and that when he was returning from his agricultural field, he can across Hari Mahto and Maheshwar Mahto, fighting with each other and he tried to dissuade them from fighting, whereupon the other accused Makru Mahato, Mangal Mahato. Fulchand Mahato and Pawan Mahato also joined in and attacked him with Tawla (sharp cutting weapon), iron rod and stick, to which he sustained injuries on his head. He further deposed that PW 2, PW 3 and PW 4 took him to the hospital. When the police had arrived, he has given the statement regarding the occurrence and fixed his thumb impression. 7. PW 2 has also in his deposition in para I stated that Makru attacked with Tawla, Mangal attacked with iron rod, Thuru and Pawan had arrived with sticks. He has deposed that Makru and Mangal has specifically assaulted and that the rest had assaulted with sticks. 7. PW 2 has also in his deposition in para I stated that Makru attacked with Tawla, Mangal attacked with iron rod, Thuru and Pawan had arrived with sticks. He has deposed that Makru and Mangal has specifically assaulted and that the rest had assaulted with sticks. 8. PW 3 has also in first paragraph of his deposition described the dispute that took place between the initially mentioned two persons and also deposed that Makru assaulted with Tawla and others assaulted with sticks. 9. PW 4 has also described the fight between two persons initially and also deposed that Makru assaulted with Tawla, Mangal attacked with iron rod and that Pawan and Thuru attacked with sticks. 10. Learned counsel for the appellant has submitted that there is an attack against the informant, which is of general, vague and omnibus in nature. There is direct allegation of assault by Tawla by Makru Mahato which resulted in head injury and that Makru Mahato has been let off by furnishing bonds, though he is the person, who is responsible, for injuring the informant. Learned counsel has further argued that appellant was armed with stick and it is not specifically stated what specific assault he had made. Referring to paragraph-16 of the impugned judgment, learned counsel has submitted that PW 2 has admitted that due to one Lalita Devi, enmity was co-existing between the parties and that the said Lalita Devi, being the sister of the accused Maheshwar and Thuru and his own 'bahu', had filed a case under Section 498(A) of the Indian Panel Case and also under Section 125 of the Code of Criminal Procedure against the appellant and his son. Since Lalita Devi is related to the accused, said case has been made against them. Based on the aforesaid reasons, learned counsel has pleaded for similar benefit as has been given to the rest accused. Counsel has further stated that in a case of this nature the non-examination by Doctor and IO prejudices the appellant. Learned counsel has also said that another reason for acquittal would be that he was not initially on the spot. So he had not set out with any deliberation to assault any person but rather arrived on the spot with no premeditation of any assault and might have done so only because he was younger and he might have been pushed into the fighting by elders. So he had not set out with any deliberation to assault any person but rather arrived on the spot with no premeditation of any assault and might have done so only because he was younger and he might have been pushed into the fighting by elders. 11. Learned A.P.P., appearing on behalf of the State, has taken this Court to the depositions of PW 1, PW 3, PW 4 and PW 5 and submitted that assault by Tawla was made by Makru and the assault by iron rod was made by "Mangal". Learned A.P.P. has, however, submitted that in the deposition of PW 4, it has come that Pawan and Thuru attacked with sticks and in the deposition of PW 5, it has also come that Pawan and Thuru attacked with sticks. So, based on the evidences, learned A.P.P. has submitted that assault was made by all the accused including the current appellant and therefore, conviction of the appellant should be upheld. 12. In the fardbeyan Pawan Mahato is shown carrying a stick or lathi, while the sharp cutting weapon or Tawla is said to be held by Makru Mahato and the iron rod by Mangal Mahato. From the fardbeyan of the informant PW 5 it seems that he is the sole witness or sole injured witness, and others came only after the assault. So, PW 2, PW 3 and PW 4 may not be eye-witness to the assault. 13. In his deposition, the informant seems to be consistent with his fardbeyan and the main injury is due to the assault on head by Tawla. So it seems that the assault on head by Tawla, which is a sharp cutting weapon was by one Makru Mahato. The iron rod is carried by Mangal Mahato. The assaults by lathi is attributed to the two persons Pawan and Thuru in the fardbeyan, but no particular assault on any particular part of body by appellant Pawan Mahato is attributed. PW 5 in his deposition has mentioned that Pawan and Thuru were carrying lathi or stick. 14. The non-examination of the Doctor and IO is important, particularly, the Doctor, because the two dangerous weapons used were the Tawla and the iron rod, so with no Doctor's injury report, it may not be wise to sustain any general assault by lathi or stick. 14. The non-examination of the Doctor and IO is important, particularly, the Doctor, because the two dangerous weapons used were the Tawla and the iron rod, so with no Doctor's injury report, it may not be wise to sustain any general assault by lathi or stick. More so when the persons attacking with Tawla and iron rod have been given the benefit of probation bend and released, merely because they were aged 50 and 70 years at the time of judgment, while this appellant it seems was 30 years old then, and was convicted because he was a youth. 15. Definition of Section 324 of the Indian Penal Code reads as under : "324. Voluntarily causing hurt by dangerous weapons or means.-Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 16. Since the appellant is said to have been carrying lathi or stick and to have used that in the assault, it is to be seen whether it is a dangerous weapon or means. At first appearance, it may not appear so; then the question can arise, is it any instrument, which can be used as weapon of offence, likely to cause death. That would, of course, be seen in the facts and circumstances of each and any case because lathi or stick may not be classified as dangerous weapon, particularly, when viewed in the light of two other weapons that were already being used in the incident i.e. Tawla which is considered to be a sharp cutting weapon and also the iron rod, which, because of its substance and weight, may be much more dangerous than a lathi. So I think it would depend on lot and how any weapon or means is used and in the context it is used in, would define whether it is a dangerous weapon or means or not? It surely cannot be denied that if a lathi is used viciously and repeatedly then it might become a dangerous weapon or means. In this case it does not appear to be so that it was used viciously and repeatedly and in that way, it can be said that it was not used as dangerous weapon or means. Moreover, as has been argued by the learned counsel for the appellant that there were two persons, who assaulted with lathi, so it cannot be said with certainty as to who assaulted with lathi or stick and in what manner and on which part of the body. Learned counsel has also said that initially in the case there were five accused and two accused, who used Tawla and iron rod were given the benefit of probation and other one also assaulted to have used lathi was also given the benefit of probation. It seems that only because the appellant was at that time aged about 30 years, he has penalized for being a youth. It would be mishandling of justice, if the conviction and sentence is sustained. 17. In view of the discussions made above and evidences available on record, I do not feel inclined to uphold the judgment and order recorded by the Trial Court. 18. In the result, this appeal stands allowed and the judgment of conviction and order of sentence dated 16th June, 2003, passed by learned Court on 1st Additional Sessions Judge, Saraikella, in S.T. No. 52/1992, is, hereby, set aside. Appellant is discharged from the liability of his bail bonds.