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2018 DIGILAW 168 (JHR)

Sadanand Mahato v. State Of Jharkhand

2018-01-18

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT Anubha Rawat Choudhary, J. – Heard learned counsel for the appellants and learned counsel for the state. 2. This Criminal Appeal arises out of the judgment of conviction and order of sentence dated 29th July, 2004 passed in Sessions Trial No. 82 of 1999 by the learned 12th Additional Sessions Judge, Dhanbad whereby the appellants have been convicted for the offences under Sections 148, 324 read with Section 149 of the Indian Penal Code and the learned Court below has been pleased to sentence them to undergo simple imprisonment for six months under Section 148 of the Indian Penal Code, and six months under Section 324 of the Indian Penal Code , both the sentences to run concurrently. Further the appellant Sital Mahato has also been fined for a sum of Rs.25,000/- (Rupees Twenty Five Thousand) and in default of payment of fine, the convict Sital Mahato has been directed to undergo further simple imprisonment of three months. 3. The prosecution case in brief has been mentioned in the written report submitted by Tribhuwan Bedia on 15.02.1998. It has been stated that his brother Alka Bedia had received order for construction of road from Pahargora to Bedia Tola. He was involved in the works since last two months which was already completed. On the same day, Nepal Mahato, Sital Mahato, Sadanand Mahato, Sudhir Mahato, Sonaram Mahato, Krishna Mahato, Dhiren Mahato, Ram Nath Mahato, Binod Mahato and Kashi Nath Mahato and 25-30 persons came armed with bomb, pistol and other weapons and started excavating the road and on their protest they said that the land belonged to them and became turbulent. They started damaging the tiles and abusing the lady members of the village. upon this when the aunt of the informant Mira Devi went to the place of occurrence, Sital Mahato and Krishna Mahato assaulted her with farsa as a result she became badly injured and unconscious. Mira Devi was taken to Baliapur Hospital and treated. On the basis of the written report Baliapur P.S Case No. 17 of 1998 under Sections 147, 148, 149, 323, 324, 307 and 427 of the Indian Penal Code was registered against the accused persons. 4. The police after investigation found the case true and submitted charge-sheet against the accused persons. Mira Devi was taken to Baliapur Hospital and treated. On the basis of the written report Baliapur P.S Case No. 17 of 1998 under Sections 147, 148, 149, 323, 324, 307 and 427 of the Indian Penal Code was registered against the accused persons. 4. The police after investigation found the case true and submitted charge-sheet against the accused persons. After the cognizance was taken and the case was committed to the court of Sessions, charges were framed and the accused persons were put on trial. Aforesaid accused persons were charged under Sections 147, 148, 323, 307 read with Section 149 of the Indian Penal Code being the member of unlawful assembly armed with deadly weapon with common object to damage the road and assaulting one Mira Devi and attempted to cause her death. 5. From the record this court finds that altogether seven witnesses were examined in the case who are as follows:- a. P.W-1 is the victim Mira Devi. b. P.W-2 is Panchanand Bedia claims to be eye witness. c. P.W-3 is Kaira Bedia claims to be eye witness. d. P.W-4 is Jitendra Bedia claims to be eye witness. e. P.W-5 is Alka Bedia claims to be eye witness. f. P.W-6 is Dr. Ajit Kumar who had treated the victim in the hospital. g. P.W-7 is the informant Tribhuwan Bedia. 6. P.W-1 the victim Mira Devi who deposed that on 15.02.1998 at about 11-12 o''clock in the day time when she came out of her house, she saw that Sital Mahato, Krishna Mahato and Dadanand Mahato and 25 to 30 other persons who were collected there and were damaging the road. When she went there and protested, Sital Mahato gave a farsa blow on her nose resulting in cut injury. This led to profuse bleeding and she became unconscious. Thereafter Krishna Mahato assaulted her with lathi and said that she will be killed. Thereafter, she was taken to Baliapur and from there to Dhanbad Central Hospital. In her cross examination, she has deposed that no one was present at her home at the time of incidence and on hulla she came out from her house and on the east of her house there are member of house of the Bedias and it was a government road. In her cross examination, she has deposed that no one was present at her home at the time of incidence and on hulla she came out from her house and on the east of her house there are member of house of the Bedias and it was a government road. In her cross-examination, she has deposed that blood was sprinkled on her eyes and as a result she could not properly see, she had not gone to the Police-Station but she identified the accused persons. 7. P.W-7 is the informant of the case who has deposed that on 15.02.1998 at about 11.30 to 12 O''clock he came out from his house upon hulla and when he went near the road and saw that the accused persons had gathered there armed with bomb, pistol, spear etc. and were damaging the road when he protested from not damaging the road he was abused and the accused came forward to assault him. They started throwing bricks on their house. In the meantime, the victim Mira Devi came there and she also asked them not to damage the road. At this Sital Mahato assaulted her with a lathi and Krishna Mahato gave her a farsa blow as a result she fell unconscious. In his crossexamination, he has deposed that there was no firing or explosion of bomb and the farsa blow resulted in injury over the victim''s nose which was stitched at Dhanbad Hospital. 8. P.W-2 and P.W. 3 have corroborated the testimony of the victim and have claimed to be eye witness. They have narrated the incident and has also deposed that Sital Mahato had given a tangi blow in the nose of the victim and Krishna Mahato had assaulted the victim with lathi . P.W-3 has further deposed that Sital Mahato has instituted a case and proceeding under Section 107 was drawn between them. However, there is no such exhibit to that effect. 9. P.W -4 and P.W -5 have also narrated the incident which is almost the same as that of the victim . However although they have mentioned about the presence of Sital Mahato but has not specifically named him to have given farsa blow to the victim. Both of them have deposed that the victim was assaulted with farsa in her nose . They have also deposed that Krishna Mahato had assaulted the victim with lathi. 10. However although they have mentioned about the presence of Sital Mahato but has not specifically named him to have given farsa blow to the victim. Both of them have deposed that the victim was assaulted with farsa in her nose . They have also deposed that Krishna Mahato had assaulted the victim with lathi. 10. P.W-6 is a Doctor who has deposed that he was posted at Central Hospital, Saraidhela on 15.02.1998 as Senior Specialist in E.N.T Department. On 16.02.1998 he examined Mira Devi and the X-ray of nasal bone was done and simple injury was found. The injury report has been exhibited wherein simple injury of cut on the nose has been mentioned. 11. The counsel for the appellants submits that:- (i) There are material contradictions in the evidence of the victims and other witnesses and the place of occurrence, time of occurrence and the manner of occurrence have not been proved beyond all reasonable doubts. (ii) It has been pointed out that according to the victim Sital Mahato had given a farsa blow on her nose and Krishna Mahato had assaulted her with lathi, but this statement is in direct conflict with the statement of P.W-7 who is the informant of the case. According to him Sital Mahato had assaulted with lathi and Krishna Mahato had given farsa blow. (iii) The victim has stated that immediately after the farsa blow given by Sital Mahato, she became unconscious and on this, the counsel for the appellants submits that if the victim had became unconscious then how she could have stated Krishna Mahato had assaulted her with lathi. The counsel for the appellants also submitted that although there are specific allegations against Sital Mahato and Kishun Mahato @ Krishna Mahato, so far as other persons are concerned, admittedly they had no role to play so far the incident of assault to victim is concerned. The persons had allegedly gathered for the purpose of damaging the road and there was no common intention or any common object to hurt or assault the victim. (iv) In view of such circumstance, offences under Sections 148,324 IPC could not have been found to be true against other persons except Sital Mahato and Krishna Mahato. For this, the counsel for the appellants has relied upon the judgment passed by the Hon''ble Supreme Court reported in (2017) 4 SCC 377 has referred to paragraph nos. (iv) In view of such circumstance, offences under Sections 148,324 IPC could not have been found to be true against other persons except Sital Mahato and Krishna Mahato. For this, the counsel for the appellants has relied upon the judgment passed by the Hon''ble Supreme Court reported in (2017) 4 SCC 377 has referred to paragraph nos. 15,16 and 17 which are quoted hereunder:- 15.Section 149 IPC reads as under: 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. 16. As is clear from the plain language, in order to attract the provision of Section 149, following ingredients are to be essentially established: (i) There must be an unlawful assembly. (ii) Commission of an offence by any member of an unlawful assembly. (iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed. If these three elements are satisfied, then only a conviction under Section 149 IPC, may be substantiated, and not otherwise. None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the common object of the unlawful assembly. 17. In the facts of the present case, we find that common object of the assembly, even if it is presumed that there was an unlawful assembly, has not been proved. The expression in prosecution of the common object occurring in this section postulates that the act must be one which has been done with a view to accomplish the common object attributed to the members of the unlawful assembly. This expression is to be strictly construed as equivalent to in order to attain common object. It must be immediately connected with a common object by virtue of nature of object. This expression is to be strictly construed as equivalent to in order to attain common object. It must be immediately connected with a common object by virtue of nature of object. In the instant case, even the evidence is not laid on this aspect. As pointed out above, the courts below were influenced by the fact that one of the injuries on the person of Ashok was on his head which became the cause of death and from this, common object is inferred. 12. Counsel for the respondent on the other hand submits that although there are minor contradictions in the evidence of the witnesses, but still the prosecution has been able to prove the case against the accused beyond all reasonable doubts. So far as manner of occurrence, place of occurrence and time of occurrence is concerned, there is no discrepancy. So far as contradiction of the statement between the victim (P.W -1) and informant (P.W. 7) is concerned regarding the action of Sital Mahato and Krishna Mahato as to who hit with farsa and who with lathi that makes no difference, as there is direct allegation of assault on both of them. Moreover, versions of the victim is supported by all other eye witnesses and this slight contradiction between these two P.Ws is not fatal to the case of the prosecution. 13. After hearing counsel for the parties and going through the records of the case, and considering the aforesaid judgment reported in (2017) 4 SCC 377 as cited by the counsel for the appellants , this court finds that there was unlawful assembly for the purpose of damaging the road and there was no forming of common intention or common object to hurt the victim. In such circumstances and in view of the law laid down by the Hon''ble Supreme Court in the case reported in (2017) 4 SCC 377 , this court does not find that other persons ( appellant no 1, 3 to 8) of the unlawful assembly except Sital Mahato and Krishna Mahato can be held guilty of the offence as alleged against them particularly non of the witnesses have alleged any act of assault against such other persons ( appellant no 1, 3 to 8 ) . 14. 14. In such circumstances, this appeal is partly allowed and the appellants namely Sadanand Mahato, Sudhir Mahato, Sonaram Mahato, Dhiren Mahato, Binodh Mahato, Kashi Nath Mahato and Ramnath Mahato who have been convicted by resorting to Section 148 of the Indian Penal Code are hereby acquitted. They are discharged from the liability of their bail bonds. 15. So far as the appellant namely Sital Mahato and Krishna Mahato are concerned, this court finds that they are guilty of offence only under Section 324 of the Indian Penal Code for having caused simple injury to the victim. However, on the point of sentence, considering the fact that both these persons have faced the trial for more than four years, remained in custody for the period from 4.5.1998 ( date of surrender ) till 18.05.1998 ( date of furnishing bail bond) and the criminal appeal has itself remained pending for more than 13 years , this court finds that the ends of justice will be served by modifying the sentence of these two persons as follows:- a) Sentence of Sital Mahato is hereby reduced to the period already undergone by him with a fine of Rs. 35,000/-. b) Sentence of Krishna Mahato is hereby reduced to the period already undergone by him with a fine of Rs.30,000/- . Further, the said two persons namely, Sital Mahato and Krishna Mahato are directed to execute bonds within a period of two months from the date of receipt of a copy of this order to keep peace and good behaviour for the period of six months under Section 4 of the Probation of Offenders Act to the satisfaction of learned 12th Additional Sessions Judge, Dhanbad in connection with Sessions Trial No. 82 of 1999. They are directed to deposit the fine amount ( after deducting the fine already deposited) before the trial court within a period of four months from the date of receipt of a copy of this order. In case the fine amount of not deposited within the stipulated period the said two persons namely, Sital Mahato and Krishna Mahato will under go simple imprisonment of four months and three months respectively. Upon deposit of the fine amount, it is to be paid to the victim on her proper identification. 16. In case the fine amount of not deposited within the stipulated period the said two persons namely, Sital Mahato and Krishna Mahato will under go simple imprisonment of four months and three months respectively. Upon deposit of the fine amount, it is to be paid to the victim on her proper identification. 16. Thus the criminal appeal is allowed with respect to the appellant no 1, 3 to 8 and this appeal is partly allowed with respect to appellant no 2 and 9 . 17. Let a copy of this order be handed over to the counsel for the appellants.