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2017 DIGILAW 1764 (JHR)

Raju Kumhar v. State of Jharkhand

2017-10-10

RATNAKER BHENGRA

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JUDGMENT : RATNAKER BHENGRA, J. 1. When the matter is called out, counsel for the appellant is absent. However, counsel for the State is present. 2. It appears that on the last two dates, no one appears on behalf of the appellant. Therefore, Mr. Rajesh Kr. Mahatha, who is on the panel of JHALSA, is being appointed as Amicus Curiae to assist the Court. 3. Heard Mr. Rajesh Kr. Mahatha, learned Amicus Curaie as well as Mr. Ravi Prakash, learned APP. 4. Present criminal appeal is directed against the judgment of conviction and order of sentence dated 12.4.2001 and 13.4.2001 respectively, passed by learned IIIrd Additional Judicial Commissioner, Ranchi in Sessions Trial No. 330/1998 in connection with G.R. Case No. 1677/1997, whereby and whereunder, appellant was convicted under Sections 324 and 325/34 of the Indian Penal Code and was sentenced to undergo RI for three years and to pay a fine of Rs. 1,000/- and in default of payment of fine, the appellant was further sentenced to undergo RI for three months. 5. The case of the prosecution in brief as per the fardbeyan of Teju Lal Mahto PW-6 is that on 16.7.1997 Nanhu Mahto and his brother Kanhu Mahto were cultivating their land. At about 8.00 a.m. accused Jyoti Lal Kumhar and Raju Kumhar came near the said land. Accused Jyoti Lal Kumhar was armed with tangi and accused Raju Kumhar was armed with lathi in their hands. Some altercation took place between the accused persons and Nanhu Mahto and his brother. In the meantime, the accused persons started assaulting Nanhu and Kanhu. On seeing the occurrence, the informant rushed towards the place of the occurrence but the accused persons fled away. It is further alleged that when the informant reached near the place of occurrence, he saw that Nanhu Mahto was badly assaulted by tangi and he sustained severe injuries and Kanhu Mahto was also assaulted by tangi and he also sustained injury. The injured were taken to the Silli Hospital on a cot for treatment. 6. On the basis of the aforesaid fardbeyan of the informant, Silli PS Case No. 39/1997 was registered. After investigation, charge-sheet was submitted against the accused persons. Cognizance of the offence was taken and the case was committed to the Court of Sessions. The injured were taken to the Silli Hospital on a cot for treatment. 6. On the basis of the aforesaid fardbeyan of the informant, Silli PS Case No. 39/1997 was registered. After investigation, charge-sheet was submitted against the accused persons. Cognizance of the offence was taken and the case was committed to the Court of Sessions. Charge against the accused was framed under Sections 324/34 of the Indian Penal Code and 307/34 of the Indian Penal Code to which the accused denied and claimed to be tried. 7. Prosecution examined altogether seven witnesses in support of its case. After the conclusion of the trial, learned Court below convicted the accused under Sections 324 and 325/34 of the Indian Penal Code and sentenced aforesaid. Hence, this appeal. 8. PW-6 is Teju Lal Mahto who is the informant of this case. In his evidence, he has said that Raju was carrying lathi and Jyoti was carrying tangi in their hand respectively. When he came out of his house he saw that accused were assaulting Kanhu and Nanhu Mahto. When he reached to the place of occurrence the accused fled away. Nanhu Mahto was severely injured and he sustained injury on his head. He was taken to Silli Hospital on a cot. He further deposed that Kanhu was also injured. In para-7 of his cross-examination, he said that the occurrence took place in the field of Nanhu and Kanhu. In para-13, he has said that he had seen the fighting. He proved his signature on the fardbeyan, which was marked as Ext.1. 9. PW-1, Kanhu Mahto is the injured. He said that on the date of occurrence he and his brother Nanhu Mahto were cultivating their land and in the meantime, the accused persons came there and started making argument and said them not to plough the land as the land belong to them. He further said that accused persons assaulted him and he became unconscious. He has also said that his brother was also assaulted with intent to kill him. He said he cannot see. He recognized the accused by their voice. 10. PW-5, Nanhu Mahto, is the injured eye-witness. He said that on the date of occurrence, he and his brother were cultivating the land. He has also said that his brother was also assaulted with intent to kill him. He said he cannot see. He recognized the accused by their voice. 10. PW-5, Nanhu Mahto, is the injured eye-witness. He said that on the date of occurrence, he and his brother were cultivating the land. In the meantime, accused Jyoti Lal Kumhar carrying tangi and accused Raju Kumhar carrying lathi came on the place of occurrence and said that the land belonged to them and thereafter, both the accused persons assaulted them. In para-2 of his evidence, this witness has said that Jyoti Lal Kumhar assaulted him by tangi on his head and face and Raju Kumhar assaulted him by lathi. He has further said that when alarm was raised, accused fled away. Village people took them to the Silli Hospital. He further said that from the Silli hospital they were referred to RMCH for treatment. In cross-examination, he has said that the father of the accused persons did not purchase the land in question and the land where the occurrence took place belong to them. He has further said that a portion of Plot No. 323 was sold by the elder brother of his father and the occurrence did not take place in the land of the accused persons. In para-21, he said that in course of hot exchange, none of the villagers came there. 11. PW-7 is Dr. Veena Kumari, who examined the injured persons. So far the injuries caused to Kanhu Mahto is concerned, she has said that the nature of injury was simply and proved the injury report, which was marked as Ext.3. She further said that she examined the injured Nanhu Mahto and she found incised injuries on the left side of the face and scalp, caused by the sharp cutting weapon but comment regarding the nature of the injuries was reserved because the injured was referred to RMCH. She proved the injury report of Nanhu Mahto, which was marked as Ext.2. Arguments of the learned Amicus Curiae: 12. Learned Amicus Curiae has submitted that there is no allegation regarding any severe or grievous injuries, which can be attributed to this appellant. It has come on record that injuries were incised in nature and as far as this appellant is concerned, he was only alleged to have been carrying lathi. Arguments of the learned Amicus Curiae: 12. Learned Amicus Curiae has submitted that there is no allegation regarding any severe or grievous injuries, which can be attributed to this appellant. It has come on record that injuries were incised in nature and as far as this appellant is concerned, he was only alleged to have been carrying lathi. If he had made any assault, for the sake of argument, it is said that the assault was made by lathi. On the other hand, it has come on the evidence that co-accused Jyoti Lal Kumhar was carrying tangi. It is only through tangi the incised wound can be caused. Injury report (Exts.2 and 3) mentions incised wound, which was caused by tangi, which was carried by the accused Jyoti Lal Kumhar. Learned Amicus Curiae has further submitted that PW-1 has not said which specific assault was made by which specific person. From the evidence of PW-5, it is clear that weapon used by this appellant was lathi. Learned Amicus Curiae has further submitted that other witnesses are not independent and they are hearsay witnesses, therefore, their evidences cannot be relied upon. PW-6 is the informant and he is the witness, but in the light of the argument, regarding the weapon of assault and the grievous injuries, no allegation can be attributed to this appellant. Learned Amicus Curiae has further submitted that it has come in the evidence of PW-5 that the land was belonging to the appellant and they were cultivating the land. Learned Amicus Curiae has submitted that informant side were the aggressor. Learned Amicus Curiae has further submitted that I.O. has not been examined, which greatly prejudiced the appellant's case. Learned Amicus Curiae has further submitted that main accused is Jyoti Lal Kumhar, who has served out the full sentence. Charges under Section 307 of the Indian Penal Code was also not proved. Lastly learned Amicus Curiae submitted that appellant was in custody from 25.8.1997 till 9.1.1998, i.e. about four and half months and considering that it is a case of the year 1997 when the occurrence had taken place and he has faced rigors of trial and also considering that there was a land dispute, case of the appellant may be considered. Arguments of the learned APP: 13. Arguments of the learned APP: 13. Learned APP has submitted that PW-6 is the informant and he is a witness to the assault that was committed by both the accused including this appellant. Moreover, he has submitted that PW-1 and PW-5 are injured witnesses and therefore, they are fully reliable and trustworthy. PW-5 has clearly said regarding the assault by lathi. Learned APP has further submitted that injury report Ext.2 an Ext.3 fully supports the prosecution case. Learned APP further submitted, regarding the land in question, that it is not possible that informant was aggressor but the informant also had a share in the land in question. Lastly learned APP submitted that impugned order of conviction passed by the learned Court below is proper and therefore, appellant does not deserve to be acquitted. FINDINGS 14. Having heard both counsels, gone through the records of the case and in the facts and circumstances following is concluded: (i) Counsel for the appellant had referred to the prior dispute between the parties over the concerned land. The land dispute is also mentioned in the impugned judgment and it seems admitted. Hence, this land dispute must be borne in mind while deciding the case. (ii) It is seen that in the fardbeyan of the informant PW-6 and evidences of injured eye-witness PW-5 that the tangi or axe was carried by the accused Jyoti Lal Kumhar and the injuries on Nanhu Mahto and Kanhu Mahto, as per the deposition of Doctor PW-7 and injury report Ext.2 and Ext.3, assault was made by the sharp cutting weapon and wound was incised but it has come in evidence that both the accused, including this appellant also assaulted, though with lathi or stick. In the evidence of an injured eye-witness PW-5, it has come that this appellant was present with the other accused Jyoti Lal Kumhar and this appellant was armed with lathi and other accused Jyoti with axe at the place of occurrence. Soon before the assault on PW-1 and PW-5 these two accused had not discussion regarding cultivation of the land. So, the intention to assault was clear and both accused intentionally and jointly injured PW-1 and PW-5 resulting in cumulative effect of commission of criminal act in furtherance of common intention. Soon before the assault on PW-1 and PW-5 these two accused had not discussion regarding cultivation of the land. So, the intention to assault was clear and both accused intentionally and jointly injured PW-1 and PW-5 resulting in cumulative effect of commission of criminal act in furtherance of common intention. (iii) Counsel for the appellant has sought to mitigate the assault by the appellant by pointing out that assault was made by Jyoti Lal Kumhar with tangi, leading to incised wounds. Counsel for the appellant also stressed that Jyoti Lal Kumhar has already served out his full sentence and since he was the main assailant, to continue sentence of this appellant is not justified. Counsel further says that this appellant has also spent about four and a half month in custody. 15. Having gone through the arguments of both sides and based on my finding, I conclude that learned Court below has rightly convicted this appellant under Sections 324 and 325/34 of the Indian Penal Code. Since the main assailant has already served out his sentence and this appellant was only holding a lathi and he has also undergone the rigors of trial and also spent about four and a half month in custody. Moreover, he was just 19 years at the time of occurrence. 16. Therefore, the appellants conviction under Sections 324 and 325/34 of the Indian Penal Code as held by the learned IIIrd Additional Judicial Commissioner, Ranchi stands, however, for the aforesaid mitigating circumstances, his sentence is confined to the period already undergone. 17. Accordingly, this appeal is partly allowed, with the aforesaid modification in sentence. He is discharge from the liability of bail bonds. Appeal allowed.