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2017 DIGILAW 990 (JHR)

Dasrath Mahto v. State of Jharkhand

2017-06-22

H.C.MISHRA, RATNAKER BHENGRA

body2017
ORDER : Heard learned counsel for the appellant and learned counsel for the State. 2. This appeal has been filed by the informant-appellant against the Judgment of acquittal dated 2.6.2016, passed by the learned Sessions Judge, Dhanbad, in S.T. No. 119 of 2015, acquitting respondent No.2 from the charge under Section 302 of the Indian Penal Code. The respondent No.2, however, has been convicted for the offence under Section 323 of the Indian Penal Code and has been sentenced to the period already under gone by him in custody during trial, i.e., one year and two months. 3. According to the prosecution case as disclosed in the impugned Judgment, there was an altercation between the informant-appellant and the respondent No.2 Nimai Mahto, who was accompanied with other persons, in which, the informant was also allegedly assaulted. His mother came to his rescue and it is alleged that the respondent No.2 Nimai Mahto slapped her, on which, she fell down and it also alleged that thereafter, the accused persons assaulted her by fists and slaps and kicked her, causing her death. 4. After investigation, the police submitted the charge-sheet for the offence under Section 302 of the Indian Penal Code. Upon commitment the case to the Court of Session, the respondent No.2 was charged for the offence under Section 302 of the Indian Penal Code, which he pleaded not guilty and claimed to be tried. 5. In course of trial, nine witnesses were examined on behalf of the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination upon the deceased. Some of the witnesses, including the informant, have supported the case and have stated that when the mother came to the rescue of her son, she was slapped by Nimai Mahto, upon which, she fell down, thereafter, all the accused persons assaulted her by slaps and by kicking her. She was taken to Doctor, where, she was declared dead. The evidence of these witnesses could not be corroborated by the medical evidence of PW–4 Dr. Sawpan Kumar Sarak, who had performed the post-mortem examination on the dead body, as no external or internal injury was found on the deceased and no opinion about the cause of death, could be given by the Doctor. The evidence of these witnesses could not be corroborated by the medical evidence of PW–4 Dr. Sawpan Kumar Sarak, who had performed the post-mortem examination on the dead body, as no external or internal injury was found on the deceased and no opinion about the cause of death, could be given by the Doctor. The viscera was sent for clinical examination, but nothing incriminating was found in the viscera also, as per the viscera report, which was proved as Exhibit – 4. The I.O. of the case, PW–9 Chandrakant Oraon had specifically stated that all the witness had stated before him that Nimai Mahto had slapped the deceased, but none of the witness had stated that even thereafter the accused persons had slapped and kicked her. 6. Thus, it is apparent that the witnesses, who had deposed in the Court that when the deceased she fell down upon being slapped by the respondent Nimai Mahto, she was again assaulted by slaps and kicks by the accused persons, were only making improvement over their statements given before the police. In view of the fact that the witnesses had deposed that respondent No.2 Nimai Mahto had slapped the mother of the informant, the Court below only found him guilty and convicted him for the offence under Section 323 of the Indian Penal Code, acquitting the respondent No.2 of the charge under Section 302 of the Indian Penal Code. 7. Learned counsel for the appellant has submitted that the impugned Judgment passed by the Trial Court below is absolutely illegal and cannot be sustained in the eyes of law. He has submitted that the appellant's mother was assaulted by respondent No.2 with the intention to cause her death, and when she fell down after being slapped by the respondent No.2 Nimai Mahto, she was again assaulted by slaps and kicks, as deposed by the witnesses. As such, the impugned Judgment acquitting the respondent No.2 of the charge under Section 302 of the Indian Penal Code cannot be sustained in the eyes of law. 8. Learned counsel for the State has opposed the prayer. 9. Having heard learned counsels for both the sides and upon going through the impugned Judgment, we find that the evidence on record, particularly, the medical evidence of PW–4 Dr. Swapan Kumar Sarak completely belied the prosecution story. 8. Learned counsel for the State has opposed the prayer. 9. Having heard learned counsels for both the sides and upon going through the impugned Judgment, we find that the evidence on record, particularly, the medical evidence of PW–4 Dr. Swapan Kumar Sarak completely belied the prosecution story. No external or internal injury was found on the dead body of the deceased and her viscera was preserved. The clinical examination of the viscera was also done and viscera report was proved as Exhibit–4, which showed that nothing incriminating was found in the viscera also. Though, there is allegation against the respondent No.2 to have also assaulted the informant during altercation, but there is no medical evidence or any injury report of the informant. The only allegation against the respondent No.2, that could be proved during the trial, is that he had slapped the deceased, who had come to the rescue of her son. By no stretch of imagination it can be held that while giving one slap to the deceased, the Respondent No.2 was either having the intention to kill the deceased, or he was in the knowledge of the fact that his slap shall cause the death of the deceased, or shall cause such bodily injury as was likely to cause her death. In our considered view, no offence under Section 302 of the Indian Penal Code is made out against the respondent No.2 on the basis of evidence on record and he has been rightly acquitted of the said charge by the Trial Court below. 10. In view of the aforementioned discussions, we find that no case is made out for granting leave to file appeal against the impugned Judgment of acquittal dated 2.6.2016, passed by the learned Sessions Judge, Dhanbad, in S.T. No. 119 of 2015. 11. Accordingly, the aforesaid interlocutory application, seeking leave for filing the appeal against the Judgment of acquittal, is hereby, dismissed. Consequently, this criminal appeal also stands dismissed, being devoid of any merit.