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2018 DIGILAW 2683 (JHR)

Kolebar Mahato v. State of Jharkhand

2018-12-07

SUJIT NARAYAN PRASAD

body2018
JUDGMENT : The instant appeal is against the order of conviction and sentence dated 27.11.2018 passed by Additional Sessions Judge (F.T.C-II), at Seraikella-Kharsawan in Sessions Trial No. 28 of 1993, whereby and whereunder the appellants have been convicted for the offence under Sections 148 and 307 of India Penal Code and in consequent thereto, have been directed to go for rigorous imprisonment for a period of one year for the offence under Section 148 of Indian Penal Code and also to undergo rigorous imprisonment for 7 years for the offence under Section 307 of Indian Penal Code. The sentences have been directed to run concurrently. 2. The instant appeal is arising out of an FIR instituted on the basis of fardbeyan recorded on 02.06.1991 at 11:00 a.m. at Government Hospital, Nimdih by Sub-Inspector Sakaldeo Ram(P.W.-10), wherein the police has been informed by the informant (P.W.-7) that on 02.06.1991 at about 6:00 a.m. in the morning, he along with Pasupati Mahato, Yudhishthir Mahato, Karna Mahato were ploughing the field over plot nos.168, 169 and 172, at that time, the resident of the same village namely Jitu Mahato, Shaktipado Mahato, Gunadhar Mahato, Kritibas Mahato, Hikim mahato and Wokil Mahato armed with lathi and started abusing them by saying that why they are ploughing the field and upon this, Jitu Mahato upon the bullocks when prohibited, they have started assaulting them by katari, table, lathi and dhanush. The first blow from the arrow has assaulted to the informant resulting in the injury in the back and Jitu Mahato, Shaktipado Mahato, through their instruments, by saying that kill Yudhishthir Mahato and started assaulting him by tangi and thereafter continued to assault him. Hikim Mahato and Sonaram Mahato have assaulted Karna Mahato through arrow. Wokil Mahato and Gunadhar Mahato have assaulted Pashupati Mahato through lathi upon his head due to which all the persons have feel down and became half unconscious. Upon this, the said incident reported before the police which was recorded on 02.06.1991 and subsequently registered as an FIR for the offence under Sections 147, 148, 307, 326, 324 and 323 of Indian Penal Code. Upon this, the said incident reported before the police which was recorded on 02.06.1991 and subsequently registered as an FIR for the offence under Sections 147, 148, 307, 326, 324 and 323 of Indian Penal Code. The police on completion of investigation has submitted the charge-sheet against the aforesaid penal Sections and the case has been committed before the Session, wherein the charge has been framed for the offence under Sections 148 and 307 of Indian Penal Code for attempt to commit murder of Brikodhar Mahato, Yudhishthir Mahato, Karna Mahato and Pasupati Mahato. They have been subjected to trial on denial of the charge. 3. The prosecution, in order to prove the charges has examined altogether 11 witnesses and after going through the material available on record, the injury report and the statements made by the witnesses have found the charges proved against the appellants for the offence under Sections 148 and 307 of Indian Penal Code and therefore, they have been convicted for the aforesaid penal Sections and accordingly sentenced to undergo rigorous imprisonment for one year for commission of offence under Section 148 and for a period of 7 years for commission of offence under Section 307 of Indian Penal Code with a direction to run the aforesaid sentences concurrently. The aforesaid judgment of conviction and sentence has been assailed by the appellants by way of instant appeal. 4. Mr. The aforesaid judgment of conviction and sentence has been assailed by the appellants by way of instant appeal. 4. Mr. A.K. Sahani, learned counsel appearing for the appellants while assailing the aforesaid judgment, has taken the following grounds:- (i) The conviction is based upon the deposition of P.W.-1 treating him as eye witness while he cannot be said to be eye witness because at paragraph-1 of the deposition, he himself has deposed that at the time of occurrence i.e., in the morning at 6:00 a.m. on the aforesaid date, he was in his house and after knowing about the occurrence, when he reached to the place of occurrence, he has found that P.W.-5, P.W.-6, P.W.-7 and P.W.-8 were fallen down but subsequently thereafter in subsequent paragraphs, he has narrated that the appellants have been seen by him, armed with the instruments by which injuries have been inflicted upon the victims which has been urged that when he, at the time of occurrence was not present at that place then he at best can be said to be hearsay witness but he cannot said to be eye witness and on such his testimony is totally unreliable for the reasons that when he himself had deposed at the time of occurrence he was in his house, it cannot be accepted that he has seen the persons armed with instruments and narration having been made by him that the victims have been injured by the appellants cannot be said to be reliable; (ii) Reliance has been placed upon the injury report based upon the material examination by P.W.-9 and P.W.-10, wherein the injury upon P.W.-5, P.W.-6, P.W.-7 have been found to be simple in nature while the injury upon P.W.-8 has not been ascertained, since the said victims was referred to the Mahatama Gandhi Hospital, Nimidih and no report with respect to the injury sustained on his body, is on record and as such no inference can be drawn with respect to the nature of injury inflicted upon P.W.-8. Therefore, the ground has been taken that when the injury upon the victims namely P.W.-5, P.W.-6 and P.W.-7 are simple in nature and as such, it cannot be a case of an offence under Section 307 of Indian Penal Code rather it can be a case of Section 324 of Indian Penal Code but the trial Court without appreciating this aspect of the matter has convicted the appellants for the commission of offence under Section 307 of Indian Penal Code and therefore, the aforesaid judgment is not sustainable; (iii) There is a counter case instituted by the police as also the title suit is going for declaration of right entitle over the land in question being Title Suit No.13/1995 which has been subjected to the First Appeal being First Appeal No.157/1974 and as such, there is ongoing land dispute in between the parties and for which, the case and counter case have been instituted and therefore, it cannot be said that there was any intention to kill the victims and hence the ingredients of Section 307 is lacking. He has also taken a ground that it is a case of no eye witness. 5. Mr. Manoj Kumar No.-II, learned Addl. Public Prosecutor appearing for the State has submitted that no infirmity has been committed by the trial Court in convicting the appellants, since according to him, the appellants have gone to the place of occurrence armed with instruments to cause bodily injury with intention to kill them, therefore, the ingredients of Section 307 of Indian Penal Code is very much available, and into consideration this aspect of the matter, the trial Court has convicted the appellants for the offence under Section 307 of Indian Penal Code, hence there is no infirmity in the same. 6. Heard learned counsel for the parties and on appreciation of their rival submissions, going through the lower court record which contains the deposition of witnesses, exhibits including the proved FIR as also the injury report, this Court in order to appreciate the stand taken by the learned counsel for the appellants, thinks it proper to discuss the deposition of the witnesses before going into the illegality and propriety and finding given by the trial Court in the judgment impugned. 7. 7. P.W.-1 namely Baleshwar Mahato has deposed that on 02.06.1991 at about 6:00 a.m. in the morning after hearing the sound, he came out of his residence and gone to the field where he saw that his father namely Brikodhar Mahato, Yudhishthir Mahato are injured, sustained with the injury upon the head of his father while there is injury in the back of Birkodhar Mahato. At paragraph-3, he deposed that he had seen the appellants armed with instruments were going towards field while at paragraph-4, he has stated that the appellants after surrounding the victims have caused injury upon them. He has also described that he has assaulted from the said instruments. 8. In the cross-examination, he has said that the title suit was there in between victims and the appellants being Title Suit No.13/1995, in which, decree has also been passed which has been appealed before the 1st Appellate Court. While in paragraph-12, it has been stated that appellants were in possession of the land in question. P.W.-2 namely Anilbaran Mahato has stated that at 6:00 a.m. on 02.06.1991, he was in the residence and after hearing sound towards his field, he went there and saw that the P.W.-5, P.W.-6, P.W.-7 and P.W.-8 had been injured. He has also deposed that the appellants with certain instruments by which the injuries have been caused upon the body of the victims. It is evident from the cross-examination, wherein, he has stated that at the time of occurrence he was in his resident and when he reached to the place of occurrence, he has seen that the victims have been injured. P.W.-3 and P.W.-4 have also stated that at the time of occurrence, they were in the house and after hearing sound, he reached to the place of occurrence, then saw that P.W.-5, P.W.-6, P.W.-7 and P.W.-8 are suffering from some injuries and the said injuries have been inflicted upon them by the appellants. P.W.-5, P.W.-6, P.W.-7 and P.W.-8 are the injured witnesses who have supported the prosecution story by stating that they have been assaulted by the appellants and injured with these instruments of lathi, table, dhanush and tangi. P.W.-9 is the doctor, who has examined the injured and has given its report saying therein that P.W.-6 Pasupati Mahato, has sustained the following injuries:- 1. Incised injury 2”x ½ ”x ½ ” on the frontal region, 2. P.W.-9 is the doctor, who has examined the injured and has given its report saying therein that P.W.-6 Pasupati Mahato, has sustained the following injuries:- 1. Incised injury 2”x ½ ”x ½ ” on the frontal region, 2. Incised injury 2”x2”x ½ ”on the right seaprila. 9. It is evident from the deposition of P.W.-9 that the injury sustained by P.W.-5, P.W.-6 and P.W.-7 have been found to be simple in nature but so far as the injury upon P.W.-8, it has come on record that he was referred to Mahatma Gandhi Medical College and as such, no injury report has been given by P.W.-9 and further even from Mahatma Gandhi Medical College, no injury report has been brought on record by the investigating agency to place on record the nature of injury whether it is simple or grievous. 10. P.W.-10 is the Investigating Officer who has investigated the occurrence, visited the place of occurrence and as stated that for the purpose of ploughing the field over plot nos.168, 169, 170 and 172, assault has taken place and therefore the FIR has been instituted. In their cross-examination, it has been stated that on 03.06.1991, he had gone to the place of occurrence where he has seen the documents pertaining to records of right i.e., copy of Khatiyan etc. He has also stated that no blood has been found by him, however, he has said that the cloth which was worn by the injured was sustained with the blood but the said cloth was not seized by him. 11. P.W.-11-is the another doctor namely Gowri Shankar Baraik, who was posted at Mahatma Gandhi Medical College has examined Pashupati Mahato (P.W.-6) and Yudhishthir Mahato (P.W.-8) and have found the following injuries upon them respectively:- 1. Bruise for 3 cm long and 2 cm on right arm cause by hard substance, 2. Scratch on right knee joint cause by fall on sandy earth. 1. Bruise of 4 cm long and 3 cm wide on right lower leg caused by hard and blunt substance 2. Scratch on forehead caused by fall on sandy earth. 12. It is evident from the aforesaid deposition that the injury upon P.W.-8 has been found to be simple in nature. It is evident that P.W.-6 and P.W.-8 have been referred for further treatment in the Mahatma Gandhi Medical College, since they have sustained injuries in their skull. Scratch on forehead caused by fall on sandy earth. 12. It is evident from the aforesaid deposition that the injury upon P.W.-8 has been found to be simple in nature. It is evident that P.W.-6 and P.W.-8 have been referred for further treatment in the Mahatma Gandhi Medical College, since they have sustained injuries in their skull. However, injury sustained by P.W.-8 has been found to be simple in nature but so far as the injury inflicted upon P.W.-6 on his skull, no report has been brought on record by the investigating agency. 13. In view of this factual background and the material available on record more particularly, the injury report now it is to be sent as to whether the prosecution has been able to prove the charges for the commission of offence under Section 307 of Indian Penal Code. 14. Section 307 contains the ingredients that there must be an intention to kill and it is not in dispute that even if there is intention to kill and if the nature of injury if found to be simple in nature, there cannot be any conviction for the offence under Section 307 of Indian Penal Code. Reference in this regard may be made to the judgment rendered in the case of Munir Khan Vrs. State of U.P., reported in AIR 1971, Supreme Court 335, wherein, the Hon’ble Supreme Court has been pleased to consider the nature of injury for convicting the accused for the offence under Section 307 of Indian Penal Code and since it has been caused during the course of the mutual fight, therefore, it has been held therein that at best the conviction can be made for the commission of offence under Section 324 of Indian Penal Code. In the judgment rendered in the case of Merambhai Punjabhai Chachar and Others Vrs. State of Gujarat, reported in 1996 Supreme Court 3236, wherein, Hon’ble Supreme Court after taking into the nature of injuries were not caused by the pellet it only seems to have grazed the head of Sanjuben, therefore, the ingredients of Section 307 has not found to be satisfied, the offence committed would attract Section 324 of Indian Penal Code. In the judgment rendered by this Court in the case of Ramanand Yadav @ Ramanand Rai and Another Vrs. In the judgment rendered by this Court in the case of Ramanand Yadav @ Ramanand Rai and Another Vrs. State of Jharkhand, reported in [2009) (3) East Cr C 311(Jharkhand)], this Court after appreciating the evidences of the prosecution witnesses and after taking into consideration the fact that only one knife blow on the hand of the P.W.-3 had been given, therefore, no case under Section 307 of Indian Penal Code can be made out against him, the injury inflicted by him is not grievous in nature, at best case can be made against him under Section 324 of Indian Penal Code. 15. In view of the above position, this Court after taking into consideration and on appreciation of the evidences of the prosecution witnesses is of the view that, there is no intention to kill the informant and the injured rather the scuffle took place for taking over the possession of land which are being claimed by parties. 16. The admitted position in this case is that there was scuffle for question of title over the land since both sides are claiming the right entitle over the land in question and when the victims, in whose favour a declaratory decree has been passed, declaring the possession of land in question in their favour has found that the land is being ploughed by the informant and the victims, they rushed to the place and scuffle took place and in that course, the injury has been sustained by both sides. It is also not in dispute that the counter case has also been instituted by the appellants for the said offence since they were also sustained injuries as they claimed, meaning thereby, there is dispute over the land, which is not in dispute and the scuffle is also there in between the parties and in course of taking possession of the land in question, the scuffle took place in which the appellants have been assaulted the victims and victims have also assaulted the appellants resulting into case and counter case. 17. The nature of injury has been found to be simple, so far as it relates to injury upon P.W.-5, P.W.-7 and P.W.-8 are concerned however there is no injury report of P.W.-6 on record. 18. 17. The nature of injury has been found to be simple, so far as it relates to injury upon P.W.-5, P.W.-7 and P.W.-8 are concerned however there is no injury report of P.W.-6 on record. 18. Evidently, there is assault for the purpose of taking possession of the land in question and hence, it cannot be said that there is intention to kill, making it an ingredients of commission of offence under Section 307 of Indian Penal Code, since nothing has been brought on record by the prosecuting agency that there was an intention to kill. Even if there was intention but the same can be inferred from the nature of injury and admittedly the nature of injury is simple and therefore the conviction under Section 307 of the Indian Penal code cannot be said to be proper. 19. This Court is of the view that since there is scuffle, assault and injury which is voluntarily for causing hurt to the victims and therefore, the ingredients of Section 324 of Indian Penal Code cannot be denied and hence the trial Court ought to have taken into consideration, these aspects of the matter before passing the order of conviction for the offence under Section 307 of Indian Penal Code. 20. Therefore, the judgment of conviction under Section 307 of Indian Penal Code cannot be said to be sustainable in the eye of law, hence the same is held to be not sustainable but the said conviction is being modified from the commission of offence under Section 307 of Indian Penal code to that of the provision of Section 324 of Indian Penal Code. 21. Accordingly, the order of conviction of the appellants for the commission of offence under Section 307 of Indian Penal code is modified to the conviction under Section 324 of Indian Penal Code. 22. Mr. A.K. Sahani, learned counsel for the appellants has submitted that the scuffle took place due the land dispute and parties are claiming the possession over the land. 22. Mr. A.K. Sahani, learned counsel for the appellants has submitted that the scuffle took place due the land dispute and parties are claiming the possession over the land. He submits that even by the decree passed by the Appellate Court of civil jurisdiction, the title has been declared in favour of the appellants but ignoring the aforesaid aspect of the matter the informant along with the other victims had forcefully taken the possession of the land which resulted in the said scuffle and therefore, there was no intention at all but accepting the incident, he submits that both the parties are the co-sharers of the property and they have also gone into the custody for about three months and as such, the sentence part may be modified. He further submits that under the provision of Section 324 of Indian Penal Code, there is a provision of punishment on implication of either description of a term which may extend to three years or with fine or with both and therefore, the argument has been advanced, the appellants are ready to pay the fine and hence, the sentence may be modified to the period already undergone along with appropriate direction upon the appellants to compensate the victims. 23. Learned A.P.P. has not objected to such submission and the legal position. 24. In view thereof and taking into consideration, the plea taken by Mr. Sahani and without any opposition of the other side and also taking into consideration the fact that the dispute is in between the co-sharers over the question of possession of property, it is a long run dispute which led to scuffle and in consequence of the order of conviction, they have already undergone three months and nine days approximately in custody, therefore, this Court in the appellate jurisdiction by taking into consideration, the provision of Section 324 of Indian Penal code which provides to impose imprisonment either to extend three years or with fine or with both thing, it is proper to modify the order of sentence by holding therein that the period of sentence is reduced to the period already undergone subject to payment by the appellants compensation of an amount of Rs.40,000/-in favour of P.W.-5, P.W.-6, P.W.-7 and P.W.-8 within a period of four months from the date of communication of this order to the trial court. 25. 25. It is made clear that if the amount of compensation will not be paid the quantum of sentence as per the judgment (Impugned) shall be operative.