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2018 DIGILAW 1826 (JHR)

Badan Mahato v. State of Jharkhand

2018-08-13

KAILASH PRASAD DEO

body2018
JUDGMENT : The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence, both dated 25.09.2003, passed by learned Additional Sessions Judge, Fast Track Court No. II, Dhanbad, in Sessions Trial No. 425 of 1998, whereby all these appellants have been convicted for the charge and offence committed and punishable under Sections 148, 427 and 323 of the Indian Penal Code and have been awarded rigorous imprisonment for two years, under Section 148 of the Indian Penal Code, rigorous imprisonment for two years for the offence under Section 427 of the Indian Penal Code and rigorous imprisonment for six months under Section 323 of the Indian Penal Code and the sentences awarded are directed to run concurrently. All the appellants have been acquitted of the charge under Sections 307/34 and 149 of the Indian Penal Code by the same impugned judgment. 2. The prosecution case is based upon the fardbeyan of Alka Bediya (P.W. 4), recorded by S.I. Prasadi Yadavi of Baliapur Police Station on 12.04.1998 at 17.00 Hours, at Baliapur Hospital, whereby the informant has alleged that, today i.e. on 12.04.1998 at around 2.00 P.M., he was constructing a house under Indira Awas Yojna for Shankar Bediya (P.W. 1), in the meantime, six accused persons namely Nepal Mahato, Badan Mahto, Sadanand Mahto, Arjun Mahto, Shital Mahto and Sona Ram Mahto, came there with iron rod, lathi, tangi and knife and as soon as they reached near the place of occurrence, they demolished the wall constructed under the Indira Awas Yojna. When the informant has made a protest, one of the accused Badan Mahto assaulted the informant by knife causing injury near left eye. Arjun Mahto, Sona Ram Mahto and Nepal Mahto (dead) have caught hold of the informant and Sadanand Mahto and Shital Mahto climbed over the informant and thrashed him. The informant has alleged, that the accused persons are not allowing to construct Indira Awas there and as such, they have committed this offence. 3. On the basis of fardbeyan of the informant, police has registered Baliapur P.S. Case No. 43 of 1998, dated 12.04.1998, under Sections 147, 148, 149, 323, 307 and 427 of the Indian Penal Code. 4. After investigation, the police submitted charge sheet vide no. 3. On the basis of fardbeyan of the informant, police has registered Baliapur P.S. Case No. 43 of 1998, dated 12.04.1998, under Sections 147, 148, 149, 323, 307 and 427 of the Indian Penal Code. 4. After investigation, the police submitted charge sheet vide no. 53 of 1998, dated 25.05.1998, against all the accused persons, under Sections 147, 148, 149, 323, 324, 307 and 427 of the Indian Penal Code. 5. The cognizance of the offence has been taken vide order dated 30.05.1998 and the case has been committed to the Court of Sessions vide order dated 14.12.1998. 6. The charge has been framed on 20.06.2001, against all the accused persons, under Sections 307/34, 427, 148 and 149 of the Indian Penal Code, to which the accused persons have pleaded their innocence and thus, they were put under trial. Nepal Mahato died during trial and his case has been expunged vide order dated 21.06.2003. 7. The prosecution, to prove its case, has examined altogether four witnesses. Shankar Bedia has been examined as P.W. 1, Bagho Bedia has been examined as P.W. 2, Jitendra Bedia has been examined as P.W. 3 and Alka Bedia, informant-cum-victim of the case, has been examined as P.W. 4. The documentary evidence i.e. the signature of Alka Bedia, on the fardbeyan has been proved and marked as Exhibit- 1. 8. After closure of the prosecution evidence, the statement of the accused/appellants were recorded under Section 313 Cr.P.C., on 14.08.2003, to which the appellants have denied the allegations levelled against them. 9. After hearing the parties, the learned Trial Court has passed the impugned judgment of conviction and order of sentence. By the same impugned judgment, the learned Trial Court has acquitted the appellants of the charge, under Sections 307/34 and 149 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence passed by the learned Trial Court, these five appellants have preferred the present criminal appeal, before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 10. Heard, learned counsel for the appellants, Mr. R.K. Bobby, Advocate. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. 10. Heard, learned counsel for the appellants, Mr. R.K. Bobby, Advocate. Learned counsel for the appellants 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 for the appellant has further submitted, that the investigating officer and the doctor have not been examined in this case nor the injury caused upon Alka Bedia (informant- P.W. 4) has been proved before the learned trial Court. Learned counsel for the appellants has further submitted, that the prosecution witnesses are related witnesses, who have been examined in this case. Learned counsel for the appellants has further submitted, that because of civil dispute prevailing between the parties, the alleged altercation took place and the appellants have served the rigors of trial since the year 1998, which is more than 20 years. Learned counsel for the appellants has further submitted, that there is case and counter-case between the parties, as admitted by Shankar Bedia (P.W. 1) in paragraph- 7 and Bagho Bedia (P.W. 2) in paragraph- 8 of their cross-examinations and as such, the prosecution has not come up with a true version of the prosecution case. From the evidence of P.W. 1 and P.W. 2, it appears that, there was a free fight between the parties and thus, the impugned judgment of conviction and order of sentence cannot sustain in the eyes of law. 11. Heard, learned counsel for the State, Mr. Sanjay Kumar Pandey, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on the material available on record and the learned Trial Court has rightly convicted the appellants under Sections 148, 427 and 323 of the Indian Penal Code. Learned counsel for the State has further submitted, that there is no discrepancy in the prosecution evidence, the defence has cross-examined the prosecution witnesses but nothing has been elucidated to disbelieve the prosecution case. The learned counsel for the State has further submitted, that non-examination of the investigating officer has not caused any prejudice to the appellants, as the appellants during cross-examination have never stated that, what are the submissions, which they want to be verified during the cross-examination of the investigating officer. The learned counsel for the State has further submitted, that non-examination of the investigating officer has not caused any prejudice to the appellants, as the appellants during cross-examination have never stated that, what are the submissions, which they want to be verified during the cross-examination of the investigating officer. Learned counsel for the State has further submitted, that this Court may not interfere in the impugned judgment of conviction and order of sentence only on the ground that the appellants have faced the rigors of trial for more than 20 years. Learned counsel for the State has further submitted, that as the impugned judgment of conviction and order sentence is based on material available on record, thus, the learned Trial Court has rightly passed the impugned judgment of conviction and order of sentence. 12. Heard, learned counsel for the appellants, Mr. R.K. Bobby, Advocate and learned counsel for the State, Mr. Sanjay Kumar Pandey, Additional Public Prosecutor, perused the F.I.R. (Exhibit- 1), framing of charge and evidence of four prosecution witnesses, the statement of the appellants recorded under Section 313 Cr.P.C. and the impugned judgment of conviction and order of sentence, this Court has found, that the evidence of all the prosecution witnesses are consistent. The prosecution has examined four witnesses including the informant-cum-victim of the case Alka Bedia, as P.W. 4. The witnesses are eye-witness to the occurrence. Shankar Bedia (P.W. 1) and Alka Bedia (P.W. 4) were present at the place of occurrence, whereas Bagho Bedia (P.W. 2) and Jitendra Bedia (P.W. 3) have witnessed the occurrence from their house and after the assault, they brought the injured Alka Bedia for treatment at Baliapur Hospital. The evidence which has been adduced by the prosecution parties, that Badan Mahto has assaulted the informant by means of knife near the left eye and Sona Ram Mahto, Arjun Mahto have caught hold of the informant and Shital Mahto and Sadanand Mahto have climbed over the body of the informant and thrashed him, is consistent on this part. The defence has cross-examined the witnesses, but nothing has been elucidated to disbelieve the prosecution case but from perusal of the evidence available on record, this Court has taken view that prosecution has not laid any evidence, so far offence committed under Section 427 of the Indian Penal Code is concerned. The defence has cross-examined the witnesses, but nothing has been elucidated to disbelieve the prosecution case but from perusal of the evidence available on record, this Court has taken view that prosecution has not laid any evidence, so far offence committed under Section 427 of the Indian Penal Code is concerned. Non-examination of the investigating Officer coupled with the fact that the order of constructing house under Indira Awas Yojna or sanction letter or the place of the occurrence has not been proved and as such, the appellants have seriously been prejudiced because of non-examination of the investigating officer, as the appellants have not been provided the opportunity to cross examine the investigating officer to elucidate the facts to prove their innocence. The evidence brought on record are sufficient to constitute an offence under Section 148 of the Indian Penal Code. Section 146 and 148 of the Indian Penal Code defines: “146. Rioting- Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting” 148. Rioting, armed with deadly weapon. – Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” The prosecution has brought evidence that appellants have come up with iron rod, lathi, tangi and knife, which are deadly weapons and as such, there is a consistent evidence, so far offence under Section 148 of the Indian Penal Code is concerned. There is also consistent evidence, so far offence constituting under Section 323 of the Indian Penal Code is concerned, as Alka Bedia, victim-cum-informant of the case, who has been examined as P.W. 4 and all the prosecution witnesses from P.W. 1 to P.W. 3 are consistent on the evidence, that Alka Bedia was assaulted by Badan Mahto and all the accused persons have come up with intention to assault and the accused persons have used force and violence by forming unlawful assembly in assaulting the informant, Alka Bedia. The evidence is consistent, as Badan Mahto has assaulted Alka Bedia near his left eye, Arjun Mahto and Sona Ram Mahto caught hold of the informant and Shital Mahto and Sadanand Mahto climbed over the body of the informant and thrashed him but, this Court on the basis of material adduced is of the opinion that there is no material and merit to convict the appellants under Section 427 of the Indian Penal Code because of lack of evidence for constituting an offence under Section 427 of the Indian Penal Code. The appellants are acquitted of the charge and sentence under Section 427 of the Indian Penal Code. But because of the consistent evidence of the prosecution witnesses brought on record, the appellants cannot be acquitted of the charge under Sections 148 and 323 of the Indian Penal Code and as such, the judgment of conviction and order of sentence passed by the learned Trial Court for the offence committed and punishable under Sections 148 and 323 of the Indian Penal is hereby upheld and affirmed. The learned counsel for the appellants has submitted, that the appellants have faced the rigors of trial for more than 20 years and after 20 years, if they are being sent to the jail to serve out the sentence, as awarded by the learned Trial Court, under Sections 148 and 323 of the Indian Penal Code, the appellants will suffer, as under such pity offence, which has caused because of some pity issue of land dispute and there was proceeding pending under Section 107 Cr.P.C. between the parties and there is a case and counter case, and they are ready to deposit and pay the victims amount of some fine instead of sending to jail. They are ready to deposit a sum of Rs. 5000/- each, to the victim. Since, all these five appellants are willing to pay a sum of Rs. 5000/- each before the learned Trial Court, the same may be disbursed to the injured by the learned trial court after due notice. The State Counsel has prayed to enhance the fine amount on the point of sentence. 5000/- each, to the victim. Since, all these five appellants are willing to pay a sum of Rs. 5000/- each before the learned Trial Court, the same may be disbursed to the injured by the learned trial court after due notice. The State Counsel has prayed to enhance the fine amount on the point of sentence. This Court is of the opinion, that sending jail in such pity offences, after 20 years will disturb the social harmony in the society, as the relationship between the parties may have developed in good faith and by sending them jail, the relationship may be disturbed. 13. Considering these aspect of the matter, all the five appellants are directed to deposit a sum of Rs. 5000/- each, to the learned Trial Court within a period of six weeks from today and if the amount is deposited, as per order of this Court, the learned Trial Court is directed to issue notice to the informant, Alka Bedia, who is victim-cum-informant of the case and in case, he is not found, issue notice to the legal heirs of the informant and after ascertaining all the facts, the said amount of Rs. 25,000/- as deposited by these five appellants be disbursed to the informant/victim of the case. In case, the appellants fail to deposit the amount as stated above, the appellants will serve out the sentence as awarded by the learned Trial Court. The learned Trial Court is free to take all the methods for their custody to serve out the sentence, after seven weeks from today, if the aforesaid amount is not deposited. 14. In the result, the common impugned judgment of conviction and order of sentence both, dated 25.09.2003, passed by learned Additional Sessions Judge, Fast Track Court No. II, Dhanbad, in Sessions Trial No. 425 of 1998, in connection with Baliapur P.S. Case No. 43 of 1998, consequent to G. R. Case No. 1319 of 1998, so far conviction under Section 427 of the Indian Penal Code is concerned is set aside, so far conviction under Sections 148 and 323 of the Indian Penal Code is concerned, the same is upheld and affirmed with modification in sentence as stated above. 15. The appellants, who are on bail, their bail bonds are hereby cancelled to comply the order passed by this Hon’ble Court. 16. 15. The appellants, who are on bail, their bail bonds are hereby cancelled to comply the order passed by this Hon’ble Court. 16. Accordingly, the present criminal appeal is partly allowed with modification in sentence. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Appeal partly allowed