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2018 DIGILAW 116 (JHR)

Gollu Mian @ Gullu Mian v. State of Jharkhand

2018-01-15

KAILASH PRASAD DEO

body2018
JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The instant criminal appeal is directed against the judgment of conviction and order of sentence dated 18.12.2003 in S.T. No. 301 of 2001 passed by the then Addl. Sessions Judge-cum-Fast Track Court No. VIII, Hazaribagh, whereby the sole appellant, Gollu Mian @ Gullu Mian has been convicted for the offence under Sections 341 and 323 of the Indian Penal Code, but the trial Court acquitted the appellant for the offence under Section 307 of the Indian Penal Code. The trial Court has sentenced the appellant to under RI for a period of six months for the offence committed under Section 323 of the Indian Penal Code and for a period of 15 days for the offence committed under Section 341 of the Indian Penal Code and both the sentences are directed to run concurrently. 3. The prosecution case as it appears from the written report of the informant. Lilo Mahto (PW 3) before the officer-in-charge Sadar Police Station Hazaribagh. 13.3.2000. stating therein that his grandson (maternal). Hirendra Prasad. S/o Sukhdeo Mahto. aged about 10 years had gone for grazing the cattle in the forest area where Gollu Mian had collected some woods and tied the same with rope in the jungle. It is further stated that the rope was unfastened by grandson of the informant. Some other boys were also present who were looking after their cattle. It is alleged that on demand by Gollu Mian. his grandson. Hirendra Prasad gave rope to accused. Gollu Mian and thereafter. Golu Mian caught-hold of his grandson. Hirendra Prasad and assaulted him from the wooden portion of the tangi and also by fist and slap as well as by leg causing injuries and threw him inside the river with an intention to kill him. The informant has alleged that his grandson. Hirendra Prasad sustained serious injuries and the occurrence took place on 12.3.2000 (Sunday) at 12.00 noon. On the basis of the aforesaid written report of the informant the Police instituted First Information Report being Sadar P.S. Case No. 86 of 2000 (dated 13.3.2000) corresponding C.R. No. 437 of 2000 under Sections 341, 323, 307 of the Indian Penal Code against the sole accused-appellant. Gollu Mian. 4. On the basis of the aforesaid written report of the informant the Police instituted First Information Report being Sadar P.S. Case No. 86 of 2000 (dated 13.3.2000) corresponding C.R. No. 437 of 2000 under Sections 341, 323, 307 of the Indian Penal Code against the sole accused-appellant. Gollu Mian. 4. During investigation the police recorded the statements of the witnesses and after investigation submitted charge-sheet under Sections 341, 323 and 307 of the Indian Penal Code against the sole accuse. Gollu Mian vide Charge-Sheet No. 26 of 2000 dated 31.3.2000 arid the cognizance of the offence was taken and the case has been committed to the Court of Sessions. vide notification No. 66 of 2001 for its trial. 5. The learned trial Court framed the' charge on 24th April. 2003 against the sole accused/appellant Gollu Mian under Sections 341. 323 and 307 of the Indian Penal Code to which accused/appellant pleaded not guilty and claimed to be tried he was put to trial. 6. The prosecution has altogether examined altogether 8 witnesses in support of the case PW 1, Sunil Kumar aged about 12 years and a student of Class-VII in Madhya Vidyalaya, Harli The learned trial Court after being satisfied allowed examination of the witness in this case. This witness has stated that while grazing cattle. Gollu Mian accused/appellant assaulted Hirendra from the wooden portion of the tangi and identified the accused/appellant. Gollu Mian. This witness has stated that Hirendra (PW 8) has unfastened the rope of the wooden bundle. During cross-examination this witness has stated that the wooden rope was kept at a distance of one Kilometre from the river but has claimed to be an eye-witness of the occurrence. 7. Rabindra Prasad younger brother of the victim Hirendra Prasad has been examined as PW 2. This witness is also aged about 12 years and a student of Class-VII at Madhya Vidyalaya Harlia The learned Trial Court. after being satisfied allowed examination of the witness in this case. This witness has stated that the occurrence took place in the noon hour of Sunday two and half years ago while he was going towards the river This witness has stated that while Gollu Mian was bringing wooden bundle tied in a rope which was unfastened but who has untied the said wooden bundle this witness has no knowledge This witness has stated that Gollu Mian assaulted his brother. Hirendra by wooden portion of the tangi During cross-examination. At Para 2, this witness has stated that due to fear, he ran and hid himself. This witness has stated that he has not gone to the river for taking bath rather he came subsequently, while they were returning, Sunil (PW 1) disclosed about the occurrence. 8. Lilo Mahto, informant of the case and grandfather of the victim has been examined as PW 3. This witness is a hearsay witness who has said that he got an information that wooden bundle was untied by Hirendra, PW. 8 and the occurrence took place in which Gollu Mian assaulted Hirendra. This witness has said that after hearing the occurrence, he went to the police Station and gave a written report to that effect. He proved his written report along with his signature and marked as Exhibit-1. This witness has further stated that because of the panchayati in the village, he has compromised the case with the accused, Gollu Mian and compromise petition has been filed and proved his signature and marked the same as Exhibit-2 (wrongly mentioned as Exhibit-1 by the Trial Court). This witness has further stated that he does not want to contest the case, but during cross-examination, this witness has stated that under pressure he has put his signature on the compromise petition. 9. Bhudan Mahto, Beni Mahto, and Bablu Prasad and have been examined as PWs 4, 5 and 7 respectively and have been declared hostile by the prosecution. 10. Dr. Chandra Bhushan Chowdhary, PW 6 is Medical Officer, who examined the Hirendra Prasad on 13.3.2000. This witness has found three injuries on the person of the victim. He "found : (a) parallel bruise 4" xl" and 3" x 1" two in number on left thigh, (b) complaining of pain on back, and (c) complain of pain on left cheek, but no external injury was found on (b) and (c). The Doctor has found injuries to be simple in nature caused by hard and blunt substance and proved written report signed by him as marked Exhibit-3. 11. Hirendra Prasad, victim of. the case has been examined as PW 8. The witness being minor was examined by trial Court and after being satisfied then after witness was examined by the prosecution. The Doctor has found injuries to be simple in nature caused by hard and blunt substance and proved written report signed by him as marked Exhibit-3. 11. Hirendra Prasad, victim of. the case has been examined as PW 8. The witness being minor was examined by trial Court and after being satisfied then after witness was examined by the prosecution. This witness has stated that while he was taking cattle for bath in the river, Gollu Mian was coming With a wooden bundle, who was stopped by the villagers and thereafter he and his brothers, Ravindra and Sunil have untied the wooden bundle of Gollu Mian and went to take bath in the river. This witness has stated that accused, Gollu Mian came and asked for his rope, upon which, he gave rope and thereafter Gollu Mian assaulted him with the wooden portion of the tangi 3-4 times and pushed him into the river. This witness has stated that he has sustained injuries on the hip and the thigh. This witness has further stated that Ravindra and Sunil saw the occurrence after fleeing under fear and they brought him to the village, from where he was brought to the Sadar Hospital for treatment. During cross-examination, this witness has stated that the occurrence took place at about 4 p.m. while Gollu Mian was coming with a wooden bundle tied with rope which was untied by him, but nothing happened there, rather the occurrence took place near the river when Gollu Mian asked him for the rope. This witness had given the rope and thereafter Gollu Mian assaulted him. This Witness is not aware about the compromise petition which was filed by his grandfather and marked as Exhibit-2, as he was not present in the said 'Panchayati. This witness has further stated that he has not said anything to his grant father about the assault made by the wooden portion of the tangi. No bleeding injury was caused, but some swelling was there. 12. After recording the statements under Section 313 of the Criminal Procedure Code of the appellant, the defence has examined one witness as DW 1, Arjun Prasad. This 'witness has proved the said panchayati held in between the parties which has been proved and marked as Exhibit-2. 13. Mr. No bleeding injury was caused, but some swelling was there. 12. After recording the statements under Section 313 of the Criminal Procedure Code of the appellant, the defence has examined one witness as DW 1, Arjun Prasad. This 'witness has proved the said panchayati held in between the parties which has been proved and marked as Exhibit-2. 13. Mr. Deepak Kumar, learned counsel for the appellant has submitted that the Investigating Officer of this case has not been examined and (Rabindra Prasad). PW 2, the brother of the victim has not supported the entire case of the prosecution to the effect. that he has himself admitted in cross-examination that he is a hearsay witness. He has heard the occurrence from PW 1 (Sunil Kumar). Learned counsel has further submitted that Ravindra Prasad, PW 2 has never said that victim was pushed by the accused, Gollu Mian inside the river. Learned counsel has submitted that testimony of PW 2 cannot be relied upon as eye-witness as his testimony is doubtful. 14. Learned counsel has further submitted that Lilo Mahato himself is a hearsay witness, and has entered into the compromise and filed compromise petition which has been proved and marked as Exhibit-2, but the learned trial Court has not accepted the compromise petition on the ground that same was not voluntarily made. Apart from this, requirement under Section 320(4), Cr PC in compromising a case, the victim must be party to that. It is true that the victim is a minor, but no one has appeared on behalf of the victim to enter into compromise nor the victim has given his authority and as such, learned trial Court has not accepted the compromise even though that has been exhibited. He has further submitted that PW 6, Dr. Chandra Prakash Choudhary has found all the injuries are simple in nature caused over the thigh and as such, there was no intention on the part of the appellant to cause any serious injury even if the prosecution story is accepted as Gollu Mian has assaulted .the victim by wooden portion of the tangi and not with the sharp edge portion of the tangi. 15. 15. Learned counsel has further argued that Hirendra Prasad, PW 8 came to his house and disclosed about the occurrence As per the statement of PW 8 both PWs 1 and 2 fled away from the place of occurrence and as such, the entire prosecution case is based upon the only testimony of PW 8, Hirendra Prasad. Sunil Kumar has been examined in this case as PW 1 and he has admitted during cross-examination that wooden rope was untied at a distance one Kilometre from the river and claimed to have seen the occurrence. This witness at Paragraph 4, of the cross-examination, has stated that the statement was recorded by the Police at his house where he has said that Hirendra was also assaulted by fist and slap. Thus, the trial Court has committed an error while convicted the appellant on the evidence of sole child witness whose evidence has not been corroborated by his brother PW 2, Rabindra Prasad. Learned counsel has submitted that in this case I.O. has not been examined nor the evidence of PW 1 Sunil Kumar can be relied upon, who has not supported the prosecution case with respect of throwing of Hirendra Prasad (PW 8) inside the river and assault by fist and slap. PW 2 Rabindra Prasad has admitted that he is a hearsay witness and stated that while they were returning, Sunil Kumar (PW 1) has disclosed about the occurrence. PW 3, Lilo Mahto, informant of the case is himself a hearsay witness. PWs 4, 5 and 7 are hostile witnesses and as such, conviction on the basis of the sole testimony of' PW 8 (Hirendra Prasad) cannot be relied upon and in as much as non-examination of the I.O. has caused prejudice to the appellant, as he could not examined the I.O. about the place of occurrence and manner of occurrence as alleged by the prosecution and as such, the impugned judgment of conviction and order of sentence may be set aside and cannot sustain in the eyes of law. 16. Mr. Asif Khan, learned APP has submitted that PW 1 Sunil Kumar is a child witness, aged about 12 years and PW 8 Hirendra Prasad is a victim a minor boy They have supported the prosecution case. 16. Mr. Asif Khan, learned APP has submitted that PW 1 Sunil Kumar is a child witness, aged about 12 years and PW 8 Hirendra Prasad is a victim a minor boy They have supported the prosecution case. The evidence of their witnesses are consistent and corroborative as such, relying upon the evidence of two child witnesses, the learned trial Court has rightly convicted the appellant under Sections 341 and 323 of the Indian Penal Code. Learned APP has further submitted that learned trial Court has not found sufficient material so far offence under Section 307 of the Indian Penal Code is concerned, but so far as material under Sections 341 and 323 of the Indian Penal Code is concerned, i.e., corroborated by the evidence-of PW 6, Dr. Chandra Prakash Chowdhary, who has proved the injury report of PW 8 Hirendra Prasad as Exhibit-3. 17. Having heard the learned counsel for the appellant and learned APP appearing for the State and on perusal of the entire records, it appears that the evidence of PWs 1 and 8 are consistent and corroborative to each other. The testimonies of these two child witnesses amply -proves that because of unfastening of wooden bundle of accused, Gollu Mian, by victim-Hirendra Prasad, Gollu Mian has assaulted Hirendra Prasad by wooden portion of the tangi causing injuries over the thigh which has been proved by the Doctor. Non-examination of the I.O. has not caused any prejudice to the appellant as nothing has been suggested to the witness, i.e.,-PW 1, Sunil Kumar or PW 8 Hirendra Prasad by the defence to discard the testimony so far as place of occurrence and the manner of occurrence are concerned. The defence has not brought anything on record to suggest that prosecution has been launched with a malicious reason or there was some enmity prevailing between the parties. Apart from this defence has examined DW 1, Arjun Prasad, who proved that some altercation took place for which a panchayati has been convened and a written paper has been prepared which has already been proved and marked as Exhibit-2. 18. Apart from this defence has examined DW 1, Arjun Prasad, who proved that some altercation took place for which a panchayati has been convened and a written paper has been prepared which has already been proved and marked as Exhibit-2. 18. Thus, the defence of the appellant himself proves about the commission of an offence and the learned trial Court was justified in not accepting the compromise petition (Ext.-2) which was not voluntarily made by the Lilo Mahto PW 3 or authorized by the victim and considering all the aspects of the matter, the conviction of the appellant, Gollu Mian under Sections 341 and 323 of the Indian Penal Code is affirmed, but considering the period of custody undergone by the appellant, the sentence awarded by the learned trial Court for rigorous imprisonment for six months under Section 323 and 15 days under Section 341 of the Indian Penal Code is modified to the period already undergone by the appellant. 19. Accordingly, the instant appeal stands dismissed with aforesaid modification. 20. Let LCR be sent to the Court concerned along with a copy of this judgment. Appeal dismissed.