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2017 DIGILAW 1868 (JHR)

Khedan Mahto v. State of Jharkhand

2017-11-06

RONGON MUKHOPADHYAY

body2017
ORDER : Heard Mr. P.K. Jha, learned counsel appearing for the petitioners and Mr. P.K. Appu, learned A.P.P., for the State. 2. This application is directed against the judgment dated 16.2.2005 passed in Criminal Appeal Nos. 64 of 1999/11 of 2004 by the learned VIIth Additional Sessions Judge, (FTC. No.4), Godda whereby and where under the judgment and order of conviction passed by the learned, 1st Assistant Sessions Judge, Godda in Session Case Nos. 100 of 1997/34 of 1997 convicting the petitioner no. 1 for the offences under Sections 326, 341 of the Indian Penal Code has been affirmed and so far as the rest petitioners are concerned, their conviction under Sections 323 and 341 of the Indian Penal Code has been affirmed whereas the conviction under Section 307/34 of the Indian Penal Code against all the accused persons and Section 326 of the Indian Penal Code against the petitioner nos. 2, 3 and 4 have been set aside. 3. The allegation in the First Information Report reveals that on 14.6.1996 at about 3:00 P.M. when the informant had gone to plough his• field with oxen along with his younger brother Gurupado Mandai, the accused persons had come variously armed. It is alleged that the petitioner no. 1 was armed with a Tangi whereas the remaining accused were armed with Lathi. The accused persons had asked the informant as to why he was ploughing the field to which he replied that the land was his ancestral land. It is alleged that the petitioner no. 1 had got infuriated and gave a Tangi blow on the head of the informant. Further allegation has been levelled that the other accused persons had assaulted him with Lathi and on alarm when the villagers assembled the accused persons fled away. 4. Based on the aforesaid allegation Godda (T) P.S. Case No. 135 of 1996 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken the case was committed to the court of sessions wherein charges were framed for the offences under Sections 307, 326, 325, 447 and 341 read with Section 34 of the Indian Penal Code and trial proceeded. 5. The prosecution had examined eight witnesses in support of its case. 6. P. W. 1-Haldhar Mandai, is the brother of the informant who was present at the time of occurrence along with PW.2-Gurupado MandaI. 5. The prosecution had examined eight witnesses in support of its case. 6. P. W. 1-Haldhar Mandai, is the brother of the informant who was present at the time of occurrence along with PW.2-Gurupado MandaI. He has stated that the informant was ploughing the land when the accused persons variously armed had come to the place of occurrence. He has further stated that the informant continued to plough in spite of the order of the accused to stop ploughing at which• the petitioner no. 1 assaulted with Tangi on the head of the informant and others assaulted with Lathi. This witness had further stated in cross-examination that there was no repetition of Tangi blow. 7. PW. 2-Gurupado Mandai is another brother of the informant who has stated as has been stated by PW. 1. 8. PW. 3-Devendra Nath Mandai, has stated about the incident and in cross-examination he has stated that when he reached the place of occurrence the informant was lying on the ground. This witness had admitted to be on litigating terms with the accused. 9. P.W. 4-Naresh Mandai, has deposed that when on alarm he reached the place of occurrence he saw the informant lying on the ground and he had bleeding injury on his head. He had further stated that three of the accused persons were present on the place of occurrence. 10. P.W.5-Bhutka Mandai, has stated on similar terms to what has been stated by P.W. 4. He has also deposed that his statement was not recorded by the Police. 11. P.W. 6-Ganga Dhar Mandai, is the informant who had fully supported the prosecution case. He has stated that the petitioner no. 1 had ordered for assault at which he started to flee but the petitioner no. 1 gave a Tangi blow on the back of his head and he fell down. He has also stated that others had assaulted him. He has also stated that the others had assaulted him with Lathi. He has further deposed that he raised alarm and thereafter his brothers and others persons came and took him to the hospital where Fardbeyan was recorded. This witness had proved his signature in the Fardbeyan which was marked as Exhibit-1. He has further stated that after receiving Tangi blow he became senseless. 12. P.W. 7-Dr. He has further deposed that he raised alarm and thereafter his brothers and others persons came and took him to the hospital where Fardbeyan was recorded. This witness had proved his signature in the Fardbeyan which was marked as Exhibit-1. He has further stated that after receiving Tangi blow he became senseless. 12. P.W. 7-Dr. Kula Nand Chaudhary, had examined the informant and had found following injuries:- (i) One incised wound over the scalp near right parietal eminence oozing. Dimension of the wound was 14 cm x 4 cm x 2 cm perostenum of skull, bone cut away. (ii) Multiple abrasion and bruise of different size and shape over back and left upper limp. (iii) Tenderness over multiple areas of back and chest. This witness had opined the' injury no. 1 to be grievous caused by a sharp weapon. 13. P.W. 8-Janardan Singh, is the Investigating Officer of the case who had recorded the statement of the informant at his village. This witness had proved the place of occurrence and had stated that the informant was assaulted in the plot of Balu Soren. He did not find any bloodstain on the place of occurrence neither any Tangi nor any Lathi was recovered by this witness. 14. The defence had proved certain documents to show that both the parties were on litigating terms which has been marked as Exhibits-A and B. 15. On consideration of the oral and documentary evidence, the learned trial court had convicted the petitioners for the offences under Sections 307/34, 326/34, 323/34, 447/34 and 341/34 of the Indian Penal Code and, sentenced them to various terms. The learned appellate court vide judgment dated 16.2.2005 had set aside the conviction of the petitioners under Section 307/34 of the Indian Penal Code and under Section 326/34 of the Indian Penal Code so far as the petitioner nos. 2, 3 and 4 are concerned. The conviction of the petitioner no. 1 under Section 326/341 was affirmed whereas the conviction under Sections 323/341 of the Indian Penal Code was affirmed with respect to the petitioner nos. 2, 3 and 4. 16. It has been stated by the learned counsel for the petitioners that the petitioners have been implicated on account of land dispute. It has also been stated that there are vital contradiction in the evidence of the witnesses. 2, 3 and 4. 16. It has been stated by the learned counsel for the petitioners that the petitioners have been implicated on account of land dispute. It has also been stated that there are vital contradiction in the evidence of the witnesses. He has submitted that P.W. 6 had taken the name of other accused persons of assaulting him with Lathi but he had also stated that after the Farsa blow was given upon him by the petitioner no. 1 he became unconscious which contradicts the claim of the petitioners about the involvement of the petitioner nos. 2, 3 and 4 for assaulting him. It has further been stated that all the witnesses are related to each other and their evidence cannot 'be said to be trustworthy. Learned counsel further submits that no independent witnesses have been examined by the prosecution and no X-ray report was submitted. It has also been stated that the place of occurrence itself is disputed. It has thus been submitted that the judgment of conviction and order of sentence be set aside. 17. Learned A.P.P. has opposed the prayer made by the petitioners. 18. The petitioners were acquitted for the offence under Section 307/34 of the Indian Penal Code on the ground that there was no repetition of blows. It appears from the evidence of the witnesses that the informant and his brother were present in the field when the incident of the petitioner no. 1 assaulting the informant with Farsa on his head and others by Lathi had occurred. The informant who has been examined as P.W. 6 specifically revealed that while he was trying to flee away the petitioner no. 1 had assaulted him with Farsa. P.W. 1 and P.W. 2 who were present at the place of occurrence had also disclosed about the assault committed by the petitioner no. 1 and the subsequent part played by the petitioner nos. 2, 3 and 4 by committing assault upon the informant with Lathi. 19. The injury report discloses about the injuries suffered by the informant on his head apart from a portion of his body which corroborates the allegation made against the petitioners. 1 and the subsequent part played by the petitioner nos. 2, 3 and 4 by committing assault upon the informant with Lathi. 19. The injury report discloses about the injuries suffered by the informant on his head apart from a portion of his body which corroborates the allegation made against the petitioners. Although it has been stated that there was a land dispute which' resulted in the false implication of the petitioners but the defence had failed to substantiate such contention more so in view of the overwhelming evidence of the prosecution regarding the act of the petitioners in assaulting the informant in active concert with. each other. Although P.W. 1 and P.W. 2 are related to P.W.6 but P.W. 4 and P.W. 5 are independent witnesses who have substantiated the allegation against the petitioners although they had reached the place of occurrence when the informant was lying on the ground with a bleeding injury. 20. The chain of circumstances being complete the petitioners were rightly convicted for the offences under Sections 326, 323 and 341. of the Indian Penal Code. There being no reasons to conclude other wise the judgment passed by the learned appellate court dated 16.2.2005 is, hereby, affirmed. However, with respect to the sentence which has been imposed upon the petitioners, it appears that they are facing the rigors of the prosecution case since the year 1999. The petitioners also seem to have remained in custody for a period of six months. 21. Regard being had to the incarceration already suffered by the petitioners and long pendency of the case the period of sentence imposed upon the petitioners is modified to the period already undergone. 22. This applications stands dismissed with the aforesaid modification in sentence.