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2018 DIGILAW 1472 (JHR)

Madan Mahto v. State of Jharkhand

2018-07-09

KAILASH PRASAD DEO

body2018
JUDGMENT : Heard, Mr. A. K. Sahani assisted by his junior counsel, Mr. Pankaj Verma appearing for the appellants and Mr. Krishna Shankar, learned Addl. Public Prosecutor appearing for the State. 2. Both the aforesaid Criminal Appeals are arising out of G.R. No.51 of 1988 and they have common set of evidence, but the appellant, Sadai Mahto [in Cr. Appeal (S.J.) No.1665 of 2003] absconded after his statement was recorded under Section 313 Cr.P.C. and thus, his case was separated from S.T. Case No.115 of 1993 to S.T. Case No.115 (A) of 1993. It is relevant to state here that the judgment of conviction has been passed on 06.05.2003 and order of sentence on 08.05.2003, passed by the learned Addl. Sessions Judge, Fast Track Court-3rd, Bokaro in S.T. Case No.115 of 1993 so far appellants, Madan Mahto and Vinod Mahto are concerned and judgment of conviction and order of sentence, both dated 29.10.2003, passed by the learned Addl. Sessions Judge, Fast Track Court-3rd, Bokaro, in S.T. Case No.115 (A) of 1993, so far the appellant, Sadai Mahto is concerned, as such, both the appeals, though being the separate judgment, but arising out of same G.R., having common evidence decided by the same Presiding Officer, are being heard together and disposed of by this common judgment. By the impugned judgment of conviction in their respective cases, both the appellants in Crl. Appeal (SJ) No.842 of 2003 have been convicted for commission of offence under Sections 324/34, 323/34 and 341/34 of the Indian Penal Code and awarded rigorous imprisonment for two years for conviction of offence under Section 324/34 I.P.C. They have further been awarded sentence of for six months each under Sections 341/34 and 323/34 I.P.C. Further, the appellant in Crl. Appeal (SJ) No. 1665 of 2003 has been convicted for commission of offence under Sections 324 and 323 I.P.C. and awarded rigorous imprisonment for two years under Section 324 read with 34 I.P.C. and rigorous imprisonment for six months under Section 323/34 I.P.C. All the sentences are directed to run concurrently. Being aggrieved by the impugned judgment of conviction and order of sentence, the present Criminal appeals have been preferred by the appellants, Madan Mahto and Vinod Mahto in Cr. Appeal (SJ) No. 842 of 2003 and appellant, Sadai Mahto in Cr. Appeal (SJ) No.1665 of 2003. 3. Being aggrieved by the impugned judgment of conviction and order of sentence, the present Criminal appeals have been preferred by the appellants, Madan Mahto and Vinod Mahto in Cr. Appeal (SJ) No. 842 of 2003 and appellant, Sadai Mahto in Cr. Appeal (SJ) No.1665 of 2003. 3. The prosecution case, is based upon the basis of 'fardbeyan' of Jagarnath Mahto, recorded by the Police officer of Chandankyari Police Station on 19.01.1988 at 10.00 Hrs., wherein the informant has alleged that on 19.01.1988 at around 7.00 a.m., while he was going to leave his buffaloes in the field after untieding them, the accused persons, namely, Madan Mahto, Vinod Mahto along with Sadai Mahto armed with 'Garasa' and lathi, surrounded the informant and Vinod Mahto said that today he will not leave the informant and after killing him, his dead-body will be thrown. Thereafter, Madan Mahto having 'Garasa' in his hand assaulted the informant, on his head, due to which the informant fell down on the ground and thereafter, the other accused persons, Sadai Mahto and Vinod Mahto indiscriminately assaulted the informant by means of lathi. In the meantime, co-villagers, Arjun Mahto, Ramchandra Mahto and others came running over the place and asked the accused, not to commit such offence and thereafter the accused persons considering the informant to be dead, fled away. The informant regained his consciousness, when he was being carried out by his wife, Chabi Mahtain by bullock-cart and she (wife of the informant) was crying. The informant has sustained injuries on the head, hand, leg, back, mouth and lips. The informant has alleged that, accused persons are trying to grab his bari land which was objected by the informant. The accused persons with common intention brutally assaulted the informant with 'Garasa' and 'Lathi'. On the basis of the aforesaid 'fardbeyan' of informant, Jagarnath Mahto the Police instituted First Information Report being Chandankiyari P.S. Case No. 8 of 1988 dated 19.01.1988, corresponding to G.R. No.51 of 1988 under Sections 324, 323, 341,307/34 of the Indian Penal Code. 4. After investigation, the Police submitted charge-sheet against all the three accused persons, named in the First Information Report vide Charge-sheet No.11 dated 29.02.1988 under Sections 341, 323, 324, 307, 34 of the Indian Penal Code. 5. 4. After investigation, the Police submitted charge-sheet against all the three accused persons, named in the First Information Report vide Charge-sheet No.11 dated 29.02.1988 under Sections 341, 323, 324, 307, 34 of the Indian Penal Code. 5. The cognizance of the offence has been taken vide order dated 04.05.1988 and the case has been committed to the Court of Sessions vide order dated 12.02.1993. The charge has been framed against all the accused persons under Sections 323, 324, 341 and 307 on 28.06.1993, to which the appellants/accused pleaded their innocence and thus, they were put under trial. 6. The prosecution, in order to prove its case, has examined altogether six witnesses. Ramchandra Mahto has been examined as P.W.1, Arjun Mahto has been examined as P.W.2, Chabi Mahtain (wife of the informant-Jagarnath Mahto) has been examined as P.W.3, Jagarnath Mahto (informant and injured of the case) has been examined as P.W.4, Dr. Bharath Prasad has been examined as P.W.5 and Kailashpati Mahato (an Advocate Clerk) has been examined as P.W.6 and also exhibited a number of documents such as, signature of Jagarnath Mahto (informant), on the fardbeyan as Exhibit-1, injury report of injured-Jagarnath Mahto, as Exhibit-2 and the formal First Information Report as Exhibit-3. After recording the statements of the appellants under Section 313 Cr.P.C. on 20th July, 1995. The defence has also examined one witness, namely, Raju Mahto as D.W.1. The learned trial court after hearing the parties has passed the impugned judgment of conviction and order of sentence, which has been assailed before this Hon'ble Court by the appellants. 7. Mr. A. K. Sahani assisted by his junior counsel, Mr. Pankaj Verma, learned counsel for the appellants (in both the criminal appeals) has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel appearing for the appellants has submitted that Investigating officer has not been examined in this case and the learned trial court has acquitted the accused/appellants under Section 307/34 of the Indian Penal Code, but wrongly convicted under Sections 341/34, 323/34 and 324/34 of the Indian Penal Code and awarded sentence of six months, six months each and rigorous imprisonment for two years respectively under the aforesaid Sections of the Indian Penal Code. Learned counsel appearing for the appellants has submitted, that from perusal of the injury report, which has been proved and marked as Exhibit-2, the Doctor has not found any grievous injury, rather the Doctor has opined that all the five injuries found on the person of the victim (Jagarnath Mahto) are simple in nature, as such, learned counsel for the appellants has submitted that considering this aspect of the matter, the appellants who are in litigating terms with the informant's side since the year 1988, have faced the rigour of trial for approximately 30 years. Learned counsel for the appellants has further submitted, that there are vital contradictions in the evidence of the prosecution witnesses. P.W.1, P.W.2 and P.W.3 have claimed to be eye-witness to the occurrence, but their deposition suggests that they are not the eye-witnesses to the occurrence. He has further submitted, that P.W.4 (Jagarnath Mahto) has reiterated his version as made out in the 'fardbeyan'. Learned counsel for the appellants under the aforesaid backgrounds, has submitted that the appellants may be acquitted of the charge and judgment of conviction and order of sentence and if the appellants are convicted, the order of sentence may be modified. 8. Mr. Krishna Shankar, learned Addl. Public Prosecutor, while supporting the impugned judgment of conviction and order of sentence, has submitted that P.W.1 (Ramchandra Mahato) and P.W.2 (Arjun Mahato) are eye-witnesses to the occurrence and nothing have been elucidated by the defence during cross-examination to disbelieve their evidence. Chabi Mahtain (P.W.3) is admittedly a hearsay witness and after hearing the brawl, she met her husband but she has narrated the entire occurrence, as stated by the injured, her husband (P.W.4-Jagarnath Mahto). P.W.4 (Jagarnath Mahato) is injured-cum-informant of this case and he has reiterated his 'fardbeyan' in his deposition. He has categorically stated that on the order of Vinod Mahto, Madan Mahto has assaulted the informant by means of 'Farsa', causing bleeding injury due to which, he fell down. Thereafter, Sadai Mahto and Vinod Mahto indiscriminately assaulted the informant by means of lathi. Learned counsel for the State, Mr. Krishna Shankar, Addl. Public Prosecutor has further submitted, that the informant has proved his signature on the 'fardbeyan' as Exhibit-1. Learned counsel for the appellants has submitted that Dr. Bharath Prasad has been examined as P.W.5 and he has proved the injury report of the injured-Jagarnath Mahto as Exhibit-2. Learned counsel for the State, Mr. Krishna Shankar, Addl. Public Prosecutor has further submitted, that the informant has proved his signature on the 'fardbeyan' as Exhibit-1. Learned counsel for the appellants has submitted that Dr. Bharath Prasad has been examined as P.W.5 and he has proved the injury report of the injured-Jagarnath Mahto as Exhibit-2. Learned counsel for the appellants has further submitted, that from perusal of the injury report, it appears that all these injuries found by the Doctor (P.W.5) are simple in nature. Learned counsel for the appellants has further submitted that Kailash Pati Mahatha, an Advocate Clerk has proved the formal First Information Report and signature of Officer-in-Charge as Exhibit-3 and after closure of the prosecution evidence, the appellants have been examined under Section 313 Cr.P.C., to which, they have pleaded that there is no evidence against the appellants and they have also examined one Raju Mahato as D.W.1. 9. Having heard, Mr. A. K. Sahani assisted by his junior counsel, Mr. Pankaj Verma, learned counsel appearing for the appellants and Mr. Krishna Shankar, learned Addl. Public Prosecutor appearing for the State and on perusal of the records, such as, First Information Report, charge, evidence of six prosecution witnesses, on behalf of the prosecution, their exhibits and the statements made under Section 313 Cr.P.C. of the appellants and the deposition of D.W.1, it appears that P.W.1 and P.W.2 have seen the occurrence being the eye-witness to the occurrence. P.W.3 is admittedly wife of the informant (Jagarnath Mahto), who came after hearing brawl and has supported the prosecution version, as made out by the victim (Jagarnath Mahto) of the case. The victim (Jagarnath Mahto) has categorically stated, that he has been assaulted by Madan Mahto, but in the First Information Report, he has said, that assault made by ‘Garasa’ and during his examination-in-chief, he has stated that he was assaulted by means of ‘Farsa’, but both are sharp-cut weapons caused injury No.1, on the vital part of the body i.e. on the head of victim (Jagarnath Mahto), which has been marked as Exhibit-2 on behalf of the prosecution. Dr. Bharath Prasad (P.W.5) is the Doctor, who has supported the case of the prosecution by stating that all the five injuries are simple in nature. Kailash Pati Mahatha has been examined, as P.W.6. Dr. Bharath Prasad (P.W.5) is the Doctor, who has supported the case of the prosecution by stating that all the five injuries are simple in nature. Kailash Pati Mahatha has been examined, as P.W.6. He being formal witness has proved the First Information Report of the Officer-In-charge and the same has been marked as Exhibit-3. The defence has examined Raju Mahto as D.W.1, who has tried to suggest that the occurrence took place, as the cattle of the informant grazed the crop standing over the plot of the accused persons and for that, occurrence of assault has been made. 10. Be that as it may, even if a cattle has grazed the crop of the accused persons, a citizen cannot take law in his hands by assaulting another citizen by deadly weapon i.e. 'Garasa' or 'Farsa'. There is consistent evidence, so far as assault made by lathi is concerned, as the informant has sustained altogether five injuries. Injury No.(i) has been caused by sharp-cutting weapon, injury Nos.(ii) to (v) have been caused by hard and blunt substance, as such, the prosecution case is in corroborative and consistent with the medical evidence (injury report i.e. Exhibit-2). 11. Thus, this Court affirms the Judgment of conviction dated 06.05.2003 and order of sentence dated 08.05.2003 and also Judgment of conviction and order of sentence both, dated 29.10.2003, passed by the learned Addl. Sessions Judge, Fast Track Court-rd, Bokaro S.T. Case No.115 of 1993 and S.T. Case No.115(A) of 1993 respectively. 12. Learned counsel for the appellants has submitted that the appellants have suffered rigour of trial of the case for about 30 years and there is admitted land dispute in between the parties as both parties are agnates, as such, sentence may be modified. 13. Considering such submission, reformatory view is being taken by this Court, as these persons are not criminals, who have committed such heinous crime, rather because of some land dispute, altercation took place. These accused persons have taken law in their hands and are aged persons. Thus, by sending them in jail again, no fruitful result will come. Instead of sending them into jail, this Court is of the opinion that some fine amount be imposed upon the appellants. 14. These accused persons have taken law in their hands and are aged persons. Thus, by sending them in jail again, no fruitful result will come. Instead of sending them into jail, this Court is of the opinion that some fine amount be imposed upon the appellants. 14. Thus, the appellants, Madan Mahto, Vinod Mahto and Sadai Mahto are directed to deposit total amount of Rs.30,000/- (Ten Thousand by each appellant) before the learned trial court to be given to the victim-cum-informant (Jagarnath Mahto or his legal successor), within eight week from the date of receipt of a copy of this judgment. 15. If the appellants do not deposit the said amount of fine, the sentence imposed by the learned trial court is confirmed. 16. With the modification in the sentence, as aforesaid, both the aforesaid Criminal Appeals stand dismissed. 17. The appellants who are on bail, their bail bond is cancelled to deposit the aforesaid amount of Rs.30,000/- (Ten Thousand by each appellant) before the learned trial court. If the amount of Rs.30,000/- is not deposited, as already stated, the order of sentence imposed by the learned trial court is confirmed and the learned trial court will take all coercive measures for securing attendance of the appellants to serve out the sentence.