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2018 DIGILAW 2811 (JHR)

Dilip Mandal v. State of Jharkhand

2018-12-20

ANANDA SEN, ANANDA SEN

body2018
JUDGMENT : 1. The present appeal is directed against the judgment of conviction dated 19th December, 2006 and order of sentence dated 19.12.2006 passed by the learned Additional Sessions Judge, Fast Track Court No. IVth, Dhanbad in Sessions Trial No. 159 of 1998, whereby these two appellants have been found guilty for committing offence punishable under sections 324 and 323 of the Indian Penal Code and thereafter the appellant Dilip Mondal has been sentenced to undergo rigorous imprisonment for one year with a fine of Rs. 500/- for the offence committing under section 324 of the Indian Penal Code and appellant Subal Mondal has been sentenced to undergo rigorous imprisonment for 6 (six) months with a fine of Rs. 500/- for the offence committing under section 323. It may be mentioned that there were three appellants in this case and vide order dated 18.09.2018 this appeal, so far as it relates to Kanhai Mondal @ Kanhai Lal Mondal is concerned, stood abated as he died on 16.03.2014. 2. The prosecution case arises on the basis of the Fardbeyan of informant Dhiren Mondal (P.W.5), son of Mukund Mondal stating therein that on 07.06.1991 at about 6.30 A.M., when he was ploughing his field and his younger brother Niren Mondal was picking stone and woods to clear the field, these appellants came with axe and Sabal in their hands and by uttering that they will not get any share in the land, started assaulting the informant and others. Dilip Mondal gave axe blow on Niren Mondal resulting in injury on his left thumb. He also gave axe blow on the head of Niren Mandal. The informant was also assaulted by wooden portion of the axe by Subal Mondal and Dilip Mondal. Subal Mondal assaulted the informant with axe on his head and Kanahai Mondal inflicted Sabal blow to the informant. When the informant’s son came to rescue the informant and others, Dilip Mondal inflicted axe blow on his head. On raising alarm several persons reached at then place of occurrence, then these appellants fled away from the place of occurrence. 3. On the basis of the fardbeyan of the informant, Nirsa P.S. Case No. 142 of 1991 was registered against the appellants and others. After investigation, the police submitted charge sheet against all the accused persons under sections 341, 323, 325, 324, 307/34 of the Indian Penal Code. 3. On the basis of the fardbeyan of the informant, Nirsa P.S. Case No. 142 of 1991 was registered against the appellants and others. After investigation, the police submitted charge sheet against all the accused persons under sections 341, 323, 325, 324, 307/34 of the Indian Penal Code. Thereafter, cognizance was also taken under the aforesaid sections. 4. After cognizance was taken, the case was committed to the Court of sessions vide order dated 22.04.1998, where charges were framed on 24.04.2002 under sections 341,323,324,325, 307 read with section 34 of the Indian Penal Code. The contents of the charges were read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. 5. Prosecution, in order to establish the charges, examined 15 witnesses in this case, who are as follows: P.W.1 Netai Mondal, P.W.2 Uttam Mondal, P.W.3 Kitu Mondal, P.W.4 Badan Mondal, P.W.5 Dhiren Mondal, P.W.6 Tapan Mondal, P.W.7 Shanker Mondal, P.W.8 Rishikesh Mondal, P.W.9 Subash Mondal, P.W.10 Dhiren Chakarborty, P.W.11 Dwarika Nath Mondal, P.W.12 Niren Mondal, P.W.13 Goutam Mondal, P.W.14 Dhiren Mondal and P.W.15 Dr. Panchanan Prasad. 6. The prosecution has also exhibited certain documents. Ext.1 is the signature of Dhiren Mondal on the fardbeyan, Ext. 2 and 2/1 are the injury reports of Niren Mondal and Ext. 2/2 is the injury report of Dhiren Mondal. 7. After closure of the prosecution witnesses, the statements of these appellants were recorded under section 313 Cr.P.C. 8. Defence has also examined one witness, namely, Nimai Chandra Mondal as D.W.1. 9. Defence has also exhibited some documents; those are Certified copy of the judgment in G.R. No. 1650 of 1991 as Ext.A, Batwaranama Paper (Partition document) as Ext. B, Certified copy of the F.I.R. lodged by Subal Chandra Mondal (appellant no.2 herein) as Ext. C and Certified copy of the charge sheet submitted in G.R. No. 1650 of 1991 as Ext. D. 10. Learned trial Court after hearing the parties and after appreciating the evidence led by both the sides has convicted the appellant Dilip Mondal for the offence committing under section 324 of the Indian Penal Code and appellant Subal Mondal for the offence committing under section 323 of the Indian Penal Code and has sentenced them to undergo R.I. for one year with a fine of Rs. 500/- and to undergo R.I. for 6 (six) months with a fine of Rs. 500/- and to undergo R.I. for 6 (six) months with a fine of Rs. 500/- respectively. 11. I have heard the learned counsel for the appellants and the A.P.P., who argued their case. 12. The trial Court has acquitted the appellants for the offence under sections 341, 325 and 307 of the Indian Penal code. 13. Thus, the main issue, which is to be decided in this case as to whether the prosecution has been able to establish the guilt of the appellants, which warrants punishment for committing offfence under sections 323 and 324 of the Indian Penal Code. 14. After careful scrutiny of the evidence of the prosecution, I find that there was a land dispute between the parties. P.W.3 Kitu Mondal has stated that he saw scuffle between both the parties. P.W.2 Uttam Mondal, who is in fact the son of injured Niren Mondal and nephew of the informant, stated that these appellants prevented them from ploughing the field and when they did not obey, the accused persons assaulted them, P.W.4 Badam Mondal, though he is not an eye witness, but he has stated that there was a partition of land amongst the parties. P.Ws. 5,7,8,9 and 10 have turned hostile. P.W. 12 Niren Mondal, who is the injured witness, has supported the prosecution case, but admitted that there was a land dispute amongst the parties and he also admitted that the appellants have also filed a counter case against them. P.W.13 Goutam Mondal has also admitted that the occurrence has taken place between the parties. P.W.14 Dhiren Mondal, who is the informant of this case, has supported the prosecution case, but has admitted that there was a counter case lodged by the accused party for the same occurrence and he also admitted that there is a land dispute between the parties in respect of plot nos. 1759 and 1760. P.W.15 is the Doctor, who has examined the injured. 15. Defence witness stated that the land was in possession of these appellants and he exhibited the Batwaranama, which is marked as Ext.B. The documents i.e. Exts. 2 series clearly suggests the fact that the appellant had also lodged a case against the informant of this case for the same occurrence, where they were also assaulted. There were injuries on the person of the informant also. 2 series clearly suggests the fact that the appellant had also lodged a case against the informant of this case for the same occurrence, where they were also assaulted. There were injuries on the person of the informant also. The judgment of G.R. No. 1650 of 1991 shows that Niren Mondal, Dhiren Mondal, Goutam Mondal and Uttam Mondal were convicted for committing offence under sections 323, 324 and 341/34 of the Indian Penal code. 16. From the aforesaid facts, it is quite clear that there was genuine land dispute between the parties and these appellants forbade the informant party from ploughing the field and when they did not obey, there was free fight among the parties. The fact of free fight has also been admitted by the trial Court in the impugned judgment. The trial Court also admits that there was genuine land dispute between the parties, which is also admitted by the prosecution. 17. Thus, in the aforementioned background when there is free fight among the parties, it is very difficult to conclude as to who are the aggressors. From the evidence of one witness i.e. P.W.2 Uttam Mondal, it gives an impression that it was the informant party, who were ploughing the field and the appellants forbade them. This may suggest that the informant party trespassed in the land, which was possessed by the appellants. Thus, it can be said that due to the intrusion over the land of these appellants, the entire occurrence has taken place. The prosecution has failed to prove the charges in this case that these appellants were aggressors. Be it noted that the informants were convicted in G.R. No. 1650 of 1991. The prosecution has also failed to prove the possession and ownership of the informant over the land in question, rather they themselves admitted that there was land dispute. 18. Thus, considering the evidence of the witnesses led by both the parties, the benefit of doubt has to be extended to the appellant. 19. In the result, this appeal is allowed and the judgment of conviction and order of sentence dated 19th December, 2006 passed by the learned Additional Sessions Judge, Fast Track Court No. IVth, Dhanbad in Sessions Trial No. 159 of 1998 is hereby set aside and the appellants are hereby acquitted of the charges leveled against them. 20. 19. In the result, this appeal is allowed and the judgment of conviction and order of sentence dated 19th December, 2006 passed by the learned Additional Sessions Judge, Fast Track Court No. IVth, Dhanbad in Sessions Trial No. 159 of 1998 is hereby set aside and the appellants are hereby acquitted of the charges leveled against them. 20. The appellants are on bail, they are discharged from the liabilities of their bail bonds.