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2018 DIGILAW 2746 (JHR)

Dakhineswar Mahto v. State Of Jharkhand

2018-12-13

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence, both dated 26.02.2004, passed by learned Additional District and Sessions Judge, Fast Track Court No. IV, Bokaro, in Sessions Trial No. 173 of 1998, whereby these six appellants have been convicted for the offence committed and punishable under Sections 323/149, 324/149, 504/149 and 148 of the Indian Penal Code. Appellant No. 1 Dakhineswar Mahto has also been convicted for the offence committed and punishable under Section 326 of the Indian Penal Code. The learned trial court has awarded Dakhineswar Mahto rigorous imprisonment for seven years with fine of Rs. 1000/- and in default of payment of fine, further to undergo simple imprisonment for three months for the offence committed and punishable under Section 326 of the Indian Penal Code. All the six appellants have been awarded simple imprisonment for two years for the offence committed and punishable under Section 324/149 of the Indian Penal Code, simple imprisonment for one year for the offence committed and punishable under Section 504/149 of the Indian Penal Code, simple imprisonment for one year for the offence committed and punishable under Section 323/149 of the Indian Penal Code and simple imprisonment for one year for the offence committed and punishable under Section 148 of the Indian Penal Code. All the sentences are directed to run concurrently. 2. The prosecution case is based upon the fardbeyan of the informant Rajendra Mahto (P.W. 8), before the Assistant Sub-Inspector of Police B.N. Thakur of Pindrajora Police Station in the district of Bokaro on 10.08.1996 at 10.30 Hrs. in Pindrajora market. The informant has alleged that today in the morning at 8.00 A.M., while the informant with his uncle Jyotilal Mahto, cousin Suchand Mahto and Gorachand Mahto were ploughing the bari field near their house for sowing paddy seeds, at that time, the neighbours namely Bharat Mahto @ Sakhon Mahto with lathi came there and started abusing the informant and uncle of informant Jyotilal Mahto and asked them not to plough the same as the land is passage for their ingress and egress. The informant has further stated that informant and his uncle replied that the land belongs to them and as such, they are cultivating the same for sowing paddy seeds, upon which the members of family of Bharat Mahto namely Dakhin Mahto, Bhuna Mahto, Sunil Mahto, Jaleshwar Mahto, Gour Mahto came there having tangi and lathi in their hands. It is alleged that the uncle of the informant Jyotilal Mahto was assaulted by means of tangi on his head causing serious injuries and all other persons have assaulted them by means of lathi. The informant has claimed that the accused persons have attacked upon his uncle with intention to kill by assaulting him by means of tangi on his head. 3. On the basis of the fardbeyan of the informant, police has registered Pindrajora P.S. Case No. 77 of 1996 dated 10.08.1996, under Sections 147/ 148/ 149/ 323/ 324/ 307/ 504 of the Indian Penal Code against all six named accused persons namely Bharat Mahto, Dakhineshwar Mahto, Bhuna Mahto, Sunil Mahto, Jaleshwar Mahto and Gour Chandra Mahto. 4. After investigation, the police has submitted charge sheet against all the six named accused persons vide charge sheet no. 73 of 1996, dated 31.08.1996, under Sections 147/ 148/ 149/ 323/ 326/ 307/ 504 of the Indian Penal Code. 5. The cognizance of the offence has been taken vide order dated 22.04.1997 and the case has been committed to the Court of Sessions vide order dated 14.05.1998. 6. The charge has been framed against all six accused persons under Section 147, 148, 323/149, 307/149 and 504/149 of the Indian Penal Code and Dakhineshwar Mahto has been separately charged also under Section 326 of the Indian Penal Code vide order dated 08.04.2002, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether nine witnesses and also exhibited two documentary evidence i.e. fardbeyan, which has been proved and marked as Exhibit- 1 and the injury reports of six victims as Exhibit- 2 series. Md. 7. The prosecution, to prove its case, has examined altogether nine witnesses and also exhibited two documentary evidence i.e. fardbeyan, which has been proved and marked as Exhibit- 1 and the injury reports of six victims as Exhibit- 2 series. Md. Alauddin Ansari has been examined as P.W. 1 and has been declared hostile by the prosecution, Suchand Mahto, cousin of the informant, has been examined as P.W. 2, Jyotilal Mahto, uncle of the informant, has been examined as P.W. 3, Phani Bhusan Mahto, has been examined as P.W. 4, Satyawan Mahto, has been examined as P.W. 5, Jagarnath Mahto, has been examined as P.W. 6, Atilal Mahto, has been examined as P.W. 7, Rajendra Mahto, informant of the case, has been examined as P.W. 8, Dr. Ratneshwar Prasad Verma, has been examined as P.W. 9. 8. Fardbyan of Pindrajora P.S. Case No. 77 of 1996 has been proved and marked as Exhibit- 1, injury report of Jagarnath Mahto has been proved and marked as Exhibit- 2, injury report of Suchand Mahto has been proved and marked as Exhibit- 2/1, injury report of Atilal Mahto has been proved and marked as Exhibit- 2/2, injury report of Joytilal Mahto has been proved and marked as Exhibit- 2/3, injury report of Rajendra Mahto has been proved and marked as Exhibit- 2/4 and injury report of Churaman Mahto has been proved and marked as Exhibit- 2/5. 9. After closure of the prosecution evidence, statement of the accused persons have been recorded under Section 313 Cr.P.C., 1973 on 20.06.2003, to which the accused persons have pleaded that they have been falsely implicated in this case and they will adduce evidence. The defence has examined one witness and also exhibited two documents. Gour Charan Mahto (accused/appellant) has been examined as D.W. 1 and injury reports of the (accused/appellants) have been proved and marked as Exhibit- A series and the F.I.R. lodged by Gour Charan Mahto against the present prosecution party which was registered as Pindrajora P.S. Case No. 78 of 1996 dated 10.08.1996 against twelve persons and has been proved and marked as Exhibit- B. 10. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment and convicted the appellants under Sections 148, 323/149, 324/149 and 504/149 of the Indian Penal Code and Dakhineshwar Mahto has further been convicted under Section 326 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal, assailing the same. 11. Heard, learned counsel for the appellants Mr. Praveen Shankar Dayal assisted by Mr. Sanjay Kumar, 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 appellants has submitted that there is a case and counter case between the parties and both sides have sustained injuries. Both the cases have been tried together. The present prosecution parties i.e. P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 5, P.W. 6, P.W. 7 and P.W. 8 have been convicted by learned trial court and they have preferred Criminal Appeal (SJ) No. 492 of 2004 before this Hon''ble Court, which has been dismissed with modification in sentence vide judgment dated 01.09.2006 passed by a co-ordinate Bench of this Hon''ble Court. Learned counsel for the appellants has further submitted that the prosecution party being the appellants in Cr. Appeal (SJ) No. 492 of 2004 never pointed out before the coordinate Bench of this Hon''ble Court while arguing the matter of Cr. Appeal (SJ) No. 492 of 2004 that a counter appeal is also pending before this Hon''ble Court as Cr. Appeal (SJ) No. 439 of 2004. The conviction of the appellants of Criminal Appeal (SJ) No. 492 of 2004 has been upheld and affirmed by a coordinate Bench of this Hon''ble Court by dismissing the appeal with modification in sentence on the prayer made by the learned counsel for the appellants in that case. Appeal (SJ) No. 439 of 2004. The conviction of the appellants of Criminal Appeal (SJ) No. 492 of 2004 has been upheld and affirmed by a coordinate Bench of this Hon''ble Court by dismissing the appeal with modification in sentence on the prayer made by the learned counsel for the appellants in that case. Learned counsel for the appellants has place the certified copy of that judgment to show that in the present occurrence, both side have sustained injuries and there is a case and counter case but it is the prosecution party, who were aggressors and that is the reason both the appeals have not been heard together and in view of the ratio as laid down in the judgment of State of Madhya Pradesh v. Mishrilal (Dead) & Ors. as reported in 2003 (9) SCC 426 where the Hon''ble Apex Court has held that: "the cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rationale behind this is to avoid conflicting judgments over the same incident", learned counsel for the appellants has submitted that each case has to be decided on the basis of the materials available on there record by separate judgment. Learned counsel for the appellant has further submitted that in case of Nathi Lal & Ors. v. State of Uttar Pradesh & Anr., as reported in 1990 (Supp) SCC 145 , the Hon''ble Apex Court has held that: "each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross-case. But both the judgments must be pronounced by the same learned Judge one after the other." Learned counsel for the appellants has further submitted that from the evidence brought on record, it would be apparent that the prosecution parties are aggressors whose conviction have been upheld by a coordinate Bench of this Hon''ble Court in Cr. Appeal (SJ) No. 492 of 2004 vide judgment dated 01.09.2006. Learned counsel for the appellants has drawn contradictions with regard to the prosecution case. Appeal (SJ) No. 492 of 2004 vide judgment dated 01.09.2006. Learned counsel for the appellants has drawn contradictions with regard to the prosecution case. Learned counsel for the appellants has further submitted that in the recital of the F.I.R. only four prosecution witnesses are named i.e. Rajendra Mahto, informant, Jyotilal Mahto, uncle of the informant, Suchan Mahto and Gorachand Mahto, cousins of the informant but while deposing in the court Jagarnath Mahto (P.W. 6) and Atilal Mahto (P.W. 7) have also claimed to be injured and have proved their injury reports. Learned counsel for the appellants has further submitted that once, names of the injured have been mentioned in the fardbeyan of the informant recorded after approximately two hours of the occurrence then subsequent disclosure made by the prosecution with regard to two other injured persons shows that the prosecution has not brought true version of the case before the court rather they have tried to manipulate and exaggerate the prosecution case. Learned counsel for the appellants has further submitted that F.I.R. lodged by the informant Rajendra Mahto (P.W. 8) is hit under section 162 CrPC, 1973 as the same is not the first version or disclosure of a cognizable offence before the police officer. Learned counsel for the appellants has buttressed his argument by showing the evidence of Jyotilal Mahto (P.W. 3) in paragraphs- 31, 32 and 33. Learned counsel for the appellants has drawn attention of this Court that prosecution witness Jyotilal Mahto (P.W. 3) has admitted that he reached the police station first and met the SubInspector of Police. Subsequently, Rajendra (P.W. 8) came there at 9.00 A.M. but in paragraph- 33, this witness has categorically stated that his statement was recorded first, which was written and he has put his signature on the same and other members of his family subsequently reached to the police station. Learned counsel for the appellants has thus, submitted that present F.I.R. is hit under section 162 CrPC, 1973 and this shows that prosecution has not brought the true version of the case and that is the reason, they have admitted their guilt in the appeal preferred by them vide Criminal Appeal (SJ) No. 492 of 2004 against the case instituted by the appellant, which has been registered as Pindrajora P.S. Case No. 78 of 1996. Learned counsel for the appellants has further submitted that the Hon''ble Supreme Court has held in case of Kumar v. State represent by Inspector of Police as reported in (2018) 7 SCC 536 relying upon paragraphs-29, 30 and 31: 29. Another point put forth by the learned counsel on behalf of the appellant-accused is that the prosecution has not explained the injuries suffered by the accused and hence the prosecution case should not be believed. At the outset, it would be relevant to note the settled principles of law on this aspect. Generally failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. 30. In Lakshmi Singh v. State of Bihar this Court observed: "12. ... where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants." It was further observed that: (SCC p. 401, para 12) "12. ... in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. " (emphasis supplied) 31. In the case on hand, admittedly, the appellant-accused was also injured in the same occurrence and he too was admitted in the hospital. " (emphasis supplied) 31. In the case on hand, admittedly, the appellant-accused was also injured in the same occurrence and he too was admitted in the hospital. But, the prosecution did not produce his medical record, nor the doctor was examined on the nature of injuries sustained by the accused. The trial court, instead of seeking proper explanation from the prosecution for the injuries sustained by the accused, appears to have simply believed what prosecution witnesses deposed in one sentence that the accused had sustained simple injuries only." Learned counsel for the appellants has further submitted that Suchand Mahto (P.W. 2) in paragraph- 22 has admitted that none of the accused persons have sustained injury. Joytilal Mahto (P.W. 3) in paragraph- 16 has also admitted that none of the accused have sustained injuries. Jagarnath Mahto (P.W. 6) in paragraph- 25 has also admitted that he has not seen any of the accused sustaining any injury. Atilal Mahto (P.W. 7) has also admitted in paragraph- 20 of his cross-examination that he has not seen any accused sustaining any injury in the assault. Learned counsel for the appellant has relied upon the aforesaid judgment and has submitted that their evidence is not a true version of the case and their evidence is fit to be discarded. Learned counsel for the appellant has further submitted that prosecution parties are aggressors as they have admitted during their depositions that the land in question was used by the appellants as a way for their ingress and egress. The evidence which has been brought on record in paragraph- 6 of Phani Busan Mahto (P.W. 4), paragraph- 7 of Satyawan Mahto (P.W. 5) and paragraph-18 of Atilal Mahto (P.W. 7), proved that these present prosecution parties are aggressors. They are ploughing the land which was used as ingress and egress of the appellants. The prosecution parties are the person who took the law in their hand first, as such they are aggressor and ignited the occurrence instead of taking recourse under law, they went to the place of occurrence, which was adjacent to the house of the appellants, between the main road and their house and thus the occurrence took place. The prosecution parties are the person who took the law in their hand first, as such they are aggressor and ignited the occurrence instead of taking recourse under law, they went to the place of occurrence, which was adjacent to the house of the appellants, between the main road and their house and thus the occurrence took place. Learned counsel for the appellants has further submitted that the investigating officer of this case has not been examined, as such, the appellants have suffered serious prejudice because of nonexamination of the Investigating Officer as they could not draw attention of the court towards the place of occurrence, manner of occurrence and about the aggressor. Learned counsel for the appellants has thus submitted that the appellants deserve to be acquitted from the charge and conviction passed by the learned trial court. 12. Heard, learned counsel for the State, Mr. Suraj Mohan, Additional Public Prosecutor assisted by learned counsel for the informant Mr. R.C.P. Sah, Advocate. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is well founded and is based on the materials available on record. Learned counsel for the State has submitted that it is true that there is a case and counter-case between the parties and as per the evidence of the witnesses, there is free fight between the parties. The prosecution side has already been convicted by a co-ordinate Bench of this Court in their appeal and as such, the appellants may also be convicted. Learned counsel for the State has further submitted that initially F.I.R. was lodged by the informant which was registered as Pindajora P.S. Case No. 77 of 1996 but in counter to that appellants have also filed a case which was subsequently registered as Pindrajora P.S. Case No. 78 of 1996, which also shows that it was the informant, who informed the police first and as such, their case is true version of the occurrence. The appellants have filed a counter-case against the prosecution party to pressurize them. Learned counsel for the State has thus submitted that the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon''ble Court. 13. Heard, learned counsel for the appellant Mr. Praveen Shankar Dayal assisted by Mr. Sanjay Kumar, Advocate and learned counsel for the State, Mr. Learned counsel for the State has thus submitted that the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon''ble Court. 13. Heard, learned counsel for the appellant Mr. Praveen Shankar Dayal assisted by Mr. Sanjay Kumar, Advocate and learned counsel for the State, Mr. Suraj Mohan, Additional Public Prosecutor assisted by learned counsel for the informant Mr. R.C.P. Sah, Advocate and perused the evidence brought on record including the F.I.R., framing of charge, evidence of nine prosecution witnesses, two prosecution exhibits, statement of the appellants recorded under Section 313 Cr.P.C., 1973 evidence of one defence witness and two defence exhibits as well as the impugned judgment of conviction and order of sentence and also certified copy of judgment dated 01.09.2006 passed in Cr. Appeal (SJ) No. 492 of 2004. This Court has minutely scrutinised the evidence of the prosecution witnesses. From the fact of the case, it appears that there is a case and counter-case between the parties. The present case has been lodged as Pindrajora P.S. Case No. 77 of 1996 and the appellants have subsequently lodged Pindrajora P.S. Case No. 78 of 1996. Learned trial court has convicted both sides in the respective cases. The criminal appeals have been preferred by both sides vide Criminal Appeal (SJ) No. 439 of 2004 (present criminal appeal) and Criminal Appeal (SJ) No. 492 of 2004. Present prosecution party are the appellants in Cr. Appeal (SJ) No. 492 of 2004 which was dismissed with modification in sentence as period already undergone. The prosecution party being the appellants have never informed the Court that counter-appeal i.e. the present Cr. Appeal (SJ) No. 439 of 2004 is also pending before this Hon''ble Court so as to have hearing together. From the fact of the case and the evidence brought on record in the present case, it appears that prosecution party is the aggressors as Phani Busan Mahto (P.W. 4) in paragraph- 6, Satyawan Mahto (P.W. 5) in paragraph- 7 and Atilal Mahto (P.W. 7) in paragraph- 18 have admitted during their cross-examination that the place of occurrence is a land which is being used as rashta i.e. for ingress and egress by the appellants for going to the main road. From the evidence brought on record, in the statement of Suchand Mahto (P.W. 2) in paragraph- 22, Joytilal Mahto (P.W. 3) in paragraph- 16, Jagarnath Mahto (P.W. 6) in paragraph- 25 and Atilal Mahto (P.W. 7) in paragraph- 20 have admitted that they have not seen any of the accused sustaining injury, compelled this court to disbelieve their evidence in view of the judgment Kumar v. State (supra). This Court has also taken judicial notice of the fact that in the First Information Report, only four persons are cited as injured eyewitnesses but while deposing in the court, six persons have been cited as injured out of which two injured eye-witnesses namely Atilal Mahto and Jagarnath Mahto have been added subsequently, that shows that true version of the occurrence has not been brought by the prosecution. Under the aforesaid circumstances, this Court is taking judicial notice of the judgment passed by coordinate Bench of this Hon''ble Court vide judgment dated 01.09.2006 passed in Cr. Appeal (SJ) No. 492 of 2004 where the prosecution party is held guilty and convicted which sufficiently shows that the present appellants are entitled for benefit of doubt as prosecution parties are aggressors and they have not brought the true version of the case as such, the appellants are hereby acquitted by granting benefit of doubt. 14. In the result, the impugned judgment of conviction and order of sentence, both dated 26.02.2004, passed by learned Additional District and Sessions Judge, Fast Track Court No. IV, Bokaro, in Sessions Trial No. 173 of 1998, arising out of Pindrajora P.S. Case No. 77 of 1996, corresponding to G. R. No. 961 of 1996, is hereby set aside and the appellant is acquitted of the charge and conviction, as awarded by the learned trial court by extending benefit of doubt. 15. The appellants, who are on bail, are discharged from liability of their bail bonds. 16. Accordingly, the present criminal appeal is allowed. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.