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2018 DIGILAW 2083 (JHR)

Paren Mandal v. State of Jharkhand

2018-09-17

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT : Heard learned counsel for the appellants and learned Addl. P.P. for the State. 2. This appeal is directed against the Judgment of conviction and Order of sentence dated 09.12.2005 passed by the learned 4th Additional Sessions Judge, (F.T.C), Dumka, in Sessions Trial No.45 of 2000/150 of 2004whereby and where under, the appellants have been held guilty for the offence punishable under section 324 of the Indian Penal Code and have been sentenced to undergo S.I. for six months. The appellants have also been convicted for the offence punishable under section 341 of the Indian Penal Code and have been sentenced to undergo S.I. for 15 days. Both the sentences were directed to run concurrently. 3. The case of the prosecution as unfolded in the fardbeyan of the informant-Baijan Mandal is that on 28.07.1996 at about 10:00 P.M. when the informant has taken his son toanswer the call of nature, suddenly the appellant-accused persons Paren Mandal and Lagen Mandal caught hold of the informant and Subash Mandal with an intention to kill the informant, stabbed on the abdomen of the informant with a knife. The informant raised noise at which the witnesses came and the appellant-accused persons fled away. The informant was taken to P.H.C. Masalia for his treatment. The reason for assault was that the appellant-accused persons were having land dispute with the informant and litigations regarding the said land dispute are pending in the court. On the basis of the fardbeyan of the informant, police registered Masalia P.S. Case No. 53 of 1996 corresponding to G.R. Case No. 610 of 1996 and took up investigation of the case. After completion of the investigation, police submitted charge sheet against the appellant-accused persons. 4. Upon commitment of the case to the Court of Session, charges for the offence punishable under sections 307/34 and 341 of the Indian Penal Code were framed against the appellant-accused persons. The charges were read over and explained to the appellant-accused persons to which they pleaded not guilty and were put to trial. 5. In support of its case, the prosecution has altogether examined9 witnesses besides proving the documents. The charges were read over and explained to the appellant-accused persons to which they pleaded not guilty and were put to trial. 5. In support of its case, the prosecution has altogether examined9 witnesses besides proving the documents. Though no oral evidence were adduced by the appellant-accused persons but they proved the certified copy of the F.I.R. of Masalia P.S. Case No. 39 of 1995 which was marked Ext.A, certified copy of F.I.R. of Masalia P.S. Case No. 9 of 1997 which was marked Ext.A/A, certified copy of the charge sheet of Masalia P.S. Case No.9 of 1997 which was marked as Ext.B, certified copy of order dated 13.02.1996 in P.C.R. Case No. 183 of 1995 which was marked Ext.C and certified copy of the complaint of P.C.R. Case No. 183 of 1995 which was marked Ext.D. 6. Out of the 9 witnesses examined by the prosecution, P.W.1 –Lakhindra Marandi has stated that the appellant-accused persons Lagen Mandal and Paran Mandal were catching hold of Baijan Mandal and the appellant-accused person Subhash Mandal stabbed on the abdomen of Baijan Mandal, causing bleeding injury. In his cross-examination he has stated about the boundary of the place of occurrence. The son of Baijan Mandal was raising clamor. He chased the appellant-accused persons.P.W.2 – Bhairo Mandal has stated that on hearing the noise from the house of Baijan Mandal he went there and saw Subhash Mandal stabbing Baijan Mandal on his abdomen with knife. Paran Mandal and Lagen Mandal were catching hold of Baijan Mandal and on the witnesses Lakhindra Marandi and Anand Mandal reaching there, the appellant-accused persons fled away. He did not go to the place of occurrence immediately on hearing the noise. 7. P.W.3 – Baijan Mandal is the victim himself. He has stated that the occurrence took place in the night about 10:30 P.M. The appellant-accused persons Paran Mandal and Lagan Mandal caught hold of him and the accused Subhash Mandal stabbed him on his stomach with knife. His son raised alarm. The villagers namely Bhairo Mandal, Anand Mandal and Lakhindra Marandi came there. His son disclosed that these three accused persons stabbed him. The witnesses took him to the police station and he was taken to Masalia P.H.C. for his treatment and the fardbeyan was recorded by police at Masalia P.H.C. On being proved by him, the signature on the fardbeyan has been marked as Ext.1. His son disclosed that these three accused persons stabbed him. The witnesses took him to the police station and he was taken to Masalia P.H.C. for his treatment and the fardbeyan was recorded by police at Masalia P.H.C. On being proved by him, the signature on the fardbeyan has been marked as Ext.1. He was referred to Dumka Sadar Hospital for his further treatment. He was treated in Dumka Hospital for one week. The occurrence took place at the door of his house. The appellant-accused persons were hiding at the place where his son was peeing. When the P.W.3 came out from his house, he did not see anybody. He was caught hold by his son. The scuffle did not last long. P.W.3 did not raise any noise. 8. P.W.4 – Birju Marandi has stated that at 10:00 P.M. on hearing the noise from the house of Baijan Mandal, he went there and saw injury on the left side of the armpit of Baijan Mandal caused by knife. Baijan Mandal told him that the appellant-accused persons assaulted him with knife and thereby he sustained injuries. He has stated about a case being pending against the informant for assaulting Rajendra Mandal with axe and causing injury to his hand. 9. P.W.5 – Shivdhan Murmu has stated that he heard noise between 09:00-10:00 P.M. He heard that Baijan Mandal was assaulted by knife. He did not see anything. He heard that the appellant-accused persons assaulted the informant. Blood was oozing out from the head and abdomen of Baijan Mandal. In his cross-examination he has stated that it was a dark night. 10. P.W.6 – Sitaram Marandi was tendered for cross-examination. 11. P.W.7 – Jetha Murmu has stated that Baijan Mandal was assaulted with knife. He does not know who assaulted Baijan. 12. P.W.8 – Anand Mandal has stated that he saw the appellant-accused persons Pran Mandal, Lagen Mandal and Subhash Mandal surrounded Baijan. Two of them caught hold of Baijan and stabbed him with a knife. In his cross-examination he has stated that the P.W.3 is his paternal uncle. Many people went to the place of occurrence along with P.W.8. When he went to the house of the P.W.3, the appellant-accused persons escaped from there. The P.W.3 was having enmity with the appellant-accused persons prior to the occurrence. 13. P.W.9 –Tarun Kanti Mandal is a formal witness. He is an Advocates’ Clerk. Many people went to the place of occurrence along with P.W.8. When he went to the house of the P.W.3, the appellant-accused persons escaped from there. The P.W.3 was having enmity with the appellant-accused persons prior to the occurrence. 13. P.W.9 –Tarun Kanti Mandal is a formal witness. He is an Advocates’ Clerk. He has proved the fardbeyan of the informant which was marked Ext.2. He also proved the F.I.R. which was marked Ext.3 and also proved the injury report of the informant-Baijan Mandal which was marked Ext.4. In his cross-examination, he has stated that he has never worked with Dr. B.K. Choudhary who prepared the Ext.4. He cannot say whether Dr. B.K. Choudhary is alive or dead or where he is posted. He was also never posted with S.I. Shailender and S.I. Hembrom. 14. After closure of the evidence of the prosecution, the statement under section 313 Cr.P.C. of the appellant-accused persons were recorded regarding the circumstances appearing in evidence against them which they denied and pleaded innocence. 15. Perusal of the Ext.A, which is the F.I.R. of G.R. Case No. 634 of 1995 corresponding to Masalia P.S. Case No. 39 of 1995 reveals that the appellant-accused persons Nagen Mandal has lodged the F.I.R. against Baijan Mandal and the witness Lakhindra. It is alleged in the said FIR that on 27.08.1995 at 08:00 P.M. forming an unlawful assembly the accused persons of that case entered into the shop of the appellant-accused person of this case Nagen Mandal and committed theft of rice, wall clock, mustard oil, molasses and other stocks of the general provision store. Ext. A/A is the certified copy of the F.I.R of Masalia P.S. Case No. 9 of 1997 where Bhudeo Mandal who is the uncle of the appellant-accused persons Nagen Mandal has lodged the F.I.R. alleging that the Lakhindra Marandi and others committed the offence punishable under section 307 of the Indian Penal Code and other offences. Ext.B is the certified copy of the charge sheet filed by the police in Masalia P.S. Case No. 9 of 1997. Ext. C is the certified copy of order dated 13.02.1996 in P.C.R. Case No. 183 of 1995 in which summons were issued inter alia against the informant and the witness Lakhindra Marandi for having committed the offence punishable under sections 144, 426 and 379 of the Indian Penal Code. 16. Ext. C is the certified copy of order dated 13.02.1996 in P.C.R. Case No. 183 of 1995 in which summons were issued inter alia against the informant and the witness Lakhindra Marandi for having committed the offence punishable under sections 144, 426 and 379 of the Indian Penal Code. 16. Learned court below after taking into consideration the evidences, both oral and documentary convicted and sentenced the appellants as already indicated above. 17. Mr. Indu Shekhar Gupta, learned counsel for the appellants submits that the learned court below has failed to appreciate the evidences in record in its proper perspective and submitted that the doctor who prepared the alleged injury report having not been examined, the learned trial court erred by accepting the alleged injury report of the informant in record as it has been marked exhibit only on being identified by an Advocates’ Clerk who never worked with the doctor nor has any knowledge about the medical science. It is further submitted that the defence has been prejudiced by non-examination of the Investigating Officer as the place of occurrence could not be proved and keeping in view that there is admitted enmity and land dispute between the parties, the non-examination of the Investigating Officer without any plausible reason has handicapped the defence in pointing out the falsehood upon which the case of the prosecution is based and thus prejudiced the defence. It is further submitted that the alleged weapon of offence that is the knife has neither been seized or produced by the prosecution in court without any plausible reason and the learned trial court erred in not considering that this creates a doubt about the veracity of the case of the prosecution and the trial court failed to consider that the testimony of P.W.3 that his son only disclosed who are the assailants itself raises a doubt about the involvement of the appellant-accused persons in the offence and creates doubt that whether the P.W.3 is an eye witness to the alleged occurrence. Hence, it is submitted that the impugned judgment of conviction and order of sentence being not sustainable in law be set aside and the appellant-accused persons be acquitted by at least giving them the benefit of doubt. 18. Learned Addl. P.P. on the other hand defended the impugned judgment and submitted that the eye-witnesses examined by the prosecution have seen the occurrence themselves. 18. Learned Addl. P.P. on the other hand defended the impugned judgment and submitted that the eye-witnesses examined by the prosecution have seen the occurrence themselves. Nothing has been elicited in their cross-examination to disbelieve or discard their testimony. Hence, the evidence put forth in record is sufficient to establish the charge for the offence punishable under Section 324 and 341 of the Indian Penal Code and the sentence is also proper keeping in view the facts of the case. Hence, it is submitted that the learned court below having rightly been convicted and sentenced the appellant-accused persons, this appeal being without any merit be dismissed. 19. Having heard the submissions made at the Bar and after carefully going through the record, I find that there is no admissible evidence regarding the alleged injuries sustained by the informant (P.W.3). The doctor who examined the alleged victim has not been examined in this case without any plausible reason. The alleged weapon of offence that is the knife has not been produced in court nor has any seizure list been produced showing seizure of the said knife allegedly used by the appellant-accused persons, during the trial. There is no plausible reason why the alleged weapon of offence that is the knife has not been produced in court nor any seizure list showing the seizure of the same by police during investigation has not been proved in the case. There is admitted enmity between the parties and keeping in view that the prosecution witnesses were not present at the place of occurrence and the P.W.3 has categorically stated that the scuffle did not continue for much time and without any plausible reason, the son of the P.W.3, who according to the testimony of P.W.3 disclosed to P.W.3, who are the assailants hence as per the prosecution case is allegedly the eye-witness to the occurrence has been withheld from the witness box. As the P.W.5 has stated that at the time of occurrence, it was a dark night and there is no evidence regarding any source of light at the place of occurrence at the time of occurrence which took place at about 10:00 p.m. Under such circumstances, in the absence of any evidence regarding any light at the place of occurrence the testimony of the witnesses who allegedly came on hearing the noise and that the P.W.3 himself did not raise any alarm and he himself could not see who assaulted him do not inspire confidence more so because admittedly the witnesses of the prosecution belongs to one party and there is evidence in record regarding enmity between the rival parties. There is no evidence regarding the place of occurrence. There is evidence regarding enmity between the parties. There is no explanation as to why the alleged weapon of offence was not seized. For these reasons certainly the defence has been prejudiced by non-examination of the Investigating Officer. So, as a cumulative effect of all these circumstances, this Court is of the considered view that the evidence in record is insufficient to establish the offence punishable under Section 324 and 341 of the Indian Penal Code against the appellant-accused persons beyond all reasonable doubt and this is a fit case where the appellant-accused persons namely Paren Mandal, Subhash Mandal and Nagen Mandal @ Nagan Mandal, be acquitted by giving them the benefit of doubt. 20. Accordingly, the impugned judgment of conviction and Order of sentence dated 09.12.2005 passed by the learned 4th Additional Sessions Judge, (F.T.C), Dumka, in Sessions Trial No.45 of 2000/150 of 2004 is set aside and the appellant-accused persons are acquitted by giving them the benefit of doubt. The appellants are on bail. In view of their acquittal, they are discharged of the liability of their bail bonds. 21. Let the Lower Court Record be sent back to the court below along with a copy of this Judgment forthwith. 22. In the result, this appeal is allowed.