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2017 DIGILAW 1168 (JHR)

Jai Ram Mahto v. State Of Jharkhand

2017-07-17

RONGON MUKHOPADHYAY

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JUDGMENT Rongon Mukhopadhyay, J. - Heard Mr. Ashish Kumar, learned counsel appearing for the petitioners and Mr. Ashok Kumar, learned A.P.P., for the State. 2. This application is directed against the judgment dated 26.06.2002 passed by the learned 3rd Additional Sessions Judge, Deoghar in Criminal Appeal No. 49 of 1989 whereby and where under the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 1st Class, Deoghar in G. R. Case No. 459 of 1984 by which the petitioners have been convicted for the offences punishable under Sections 147, 426, 342, 323 of the Indian Penal Code and directed to furnish probation bond of Rs. 2,000/- with two sureties for one year has been affirmed. 3. The prosecution story in brief is that when the informant was going towards her agricultural field with seeds in her basket and when she reached near the bandh accused persons came and threw the basket and also assaulted her. The son of the informant Ramu Mahto was ploughing the field and on alarm being raised by the informant her husband, nephew and son came to the place of occurrence but all were assaulted by the accused persons. It is alleged that the Sarpanch of the village was instigating the accused persons. The cause of the incident is said to be the efforts being made by the petitioners in trying to capture the land of the informant for which a case had also been instituted. 4. Investigation resulted in submission of charge-sheet and after cognizance was taken charge was framed for the offences punishable under Sections 147,426,342 and 323 of the Indian Penal Code and trial proceeded. 5. The learned trial court vide judgment dated 21.07.1989 had convicted the petitioners for the offences under Sections 147, 426, 342 and 323 of the Indian Penal Code and they were directed to furnish probation bond of Rs. 2,000/- with two sureties for a period of one year. The petitioner preferred an appeal being Criminal Appeal No. 49 of 1989 which however was dismissed by the learned 3rd Additional Sessions Judge, Deoghar on 26.06.2002. 6. Learned counsel for the petitioners has stated that the witnesses who have been examined on behalf of the prosecution and who claimed to be the eye-witnesses are all in fact interested witnesses. The petitioner preferred an appeal being Criminal Appeal No. 49 of 1989 which however was dismissed by the learned 3rd Additional Sessions Judge, Deoghar on 26.06.2002. 6. Learned counsel for the petitioners has stated that the witnesses who have been examined on behalf of the prosecution and who claimed to be the eye-witnesses are all in fact interested witnesses. It has been stated that two charge-sheet witnesses have not been examined by the prosecution which is fatal to the prosecution case. Learned counsel submits that the petitioners have falsely been implicated in the present case on account of previous enmity as admittedly litigation''s are pending between both sides with respect to a piece of land. Learned counsel further submits that neither the doctor has been examined nor the injury report has been brought on record and, therefore, the alleged injury upon P.W. - 1 could not be proved. Learned counsel thus submits since there are several discrepancies in the judgment of conviction the same may be set aside and the petitioners be acquitted from criminal prosecution. 7. Learned A.P.P., on the other hand, has opposed the prayer made by the petitioners. 8. In order to bring home the charge the prosecution had examined as many as five witnesses. P.W.-1, Shivani Mahtowain, is the informant who has stated that she was carrying paddy seeds on the date of occurrence when the accused persons without any provocation had started assaulting her with fists and slaps. She has further stated that the petitioner no. 1 assaulted her with Lathi. It has also been stated that her husband, son and nephew took her home. She has further deposed that some properties of her father are joint and some are separate. P.W.-2, Kistu Mahto, has stated that on hearing the cry of alarm he had come to the field along with husband of the informant and she was saved. He has further stated that the informant was taken her to house and then to the Police Station from where she was referred to the hospital. P.W.-3, Ramu Mahto, is the son of the informant who has stated that her mother was assaulted by the accused persons and in trying to save her his father as well as this witness were also assaulted. P.W.-4, Laloo Mahto, has stated that on hearing alarm he had rushed to the place of occurrence. P.W.-3, Ramu Mahto, is the son of the informant who has stated that her mother was assaulted by the accused persons and in trying to save her his father as well as this witness were also assaulted. P.W.-4, Laloo Mahto, has stated that on hearing alarm he had rushed to the place of occurrence. He is also one of the sons of the informant and is a hearsay witness. P.W.-5, Doman Rajak, is the Investigating Officer of the case and the informant had recorded her statement in his presence. He had recorded the statements of the other witnesses and thereafter submitted charge-sheet. This witness had sent the informant to the hospital. 9. The evidence of the witnesses clearly reveals that P.W.-1 without any provocation was assaulted by the accused persons and when her son, nephew and husband came to rescue her they were also assaulted. The evidence of P.W.-1, P.W.-2 and P.W.-3 clearly reveals that they were the eye-witnesses to the occurrence and merely because they are related to each other the same by itself would not dilute the prosecution case as their evidence seems to be quite natural and untainted. There is no exaggeration in their deposition before the court and, therefore, merely because they are related to each other the same cannot lead to brushing aside their evidence. It is true that the doctor has not been examined but the fact that the informant had suffered injuries has sufficiently been established in view of the injury memos which were marked as Exhibit-2 which would show that the informant was taken to the hospital for treatment. As regards the previous enmity is concerned, it is common knowledge that enmity is a double edged sword which cuts both ways. The grounds of previous enmity in absence of any concrete and cogent evidence on record is not of much significance. 10. The learned court below, therefore, on proper appreciation of the materials available on record has convicted the petitioners for the offences punishable under Sections 147, 426, 342 and 323 of the Indian Penal Code and sentenced them accordingly. The learned appellate court had also properly considered the materials before dismissing the appeal. 11. There being no reason to conclude otherwise this application fails and the same is accordingly dismissed.