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2019 DIGILAW 1054 (JHR)

Ratan Mahto v. State Of Jharkhand

2019-05-14

RATNAKER BHENGRA

body2019
JUDGMENT Ratnaker Bhengra, J. - This criminal appeal is directed against the judgment of conviction and order of sentence dated 17.02.2003 and 18.02.2003 respectively passed in S.T. No. 118 of 2002 by learned Sessions Judge, Seraikella-Kharsawan at Seraikella whereby and whereunder the appellant has been convicted under section 307 and 341 of the Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for seven years for the offence under section 307 of the Indian Penal Code. No separate sentence was passed against the appellant under section 341 of the Indian Penal Code. . 2. The prosecution case as per the fardbeyan of the informant Sudan Mahato ( P.W. 5) is that on 22.04.2002 he and his cousin brother Sristi Mahato ( P.W. 1) were going to the house of one of his relative Ghasi Mahato of Kalapatar in the evening to attend an invitation there. In the evening at about 7-7.30 p.m. they reached near the house of Dulal Mahato at the village Kolaguju then the accused Ratan Mahato came there armed with bhujali and surrounded both the brothers and said he would not allow them to go as the way is closed. The informant protested on which accused assaulted the informant with bhujali repeatedly as a result he sustained injury and fell down. On hulla of Sristi Mahato villagers rushed there and saved him. 3. On the basis of the fardbeyan of the informant Saraikella P.S. Case No. 30 of 2002 was registered against the accused. After investigation charge sheet was submitted, cognizance of the offence was taken and the case was committed to the court of sessions. At the conclusion of the trial, accused or appellant was convicted and sentenced as aforesaid. Hence, this appeal. 4. The prosecution has altogether examined seven witnesses in support of its case. P.W. 5 Sudan Mahto is the informant of this case. P.W. 1 Sristi Mahto is the cousin brother of the informant, P.W. 2 , P.W. 3 and P.W. 4 are the resident at the place of occurrence. P.W. 6 Dr. M. Das is doctor who examined the injured and P.W. 7 is the Investigating Officer of the case. 5. P.W. 5, Sudan Mahato is the informant in this case. He stated that on the day of occurrence he and Sristi Mahato were going to the house of one Ghasi Ram Mahto to attend an invitation. P.W. 6 Dr. M. Das is doctor who examined the injured and P.W. 7 is the Investigating Officer of the case. 5. P.W. 5, Sudan Mahato is the informant in this case. He stated that on the day of occurrence he and Sristi Mahato were going to the house of one Ghasi Ram Mahto to attend an invitation. When they reached in front of the house of Dulal Mahto accused Ratan Mahato surrounded them and said he would not allow them to go from that way. It is further stated that there was exchange of hot words and accused Ratan Mahto gave a fist blow to Sristi Mahato. The informant protested on which the accused gave him bhujali blow on his stomach and back in order to kill him. On hulla of the informant Kusal mahato ( P.W. 4) came and thereafter Radha Mahato ( P.W. 2) and Hira Mahato ( P.W. 3) came at the place of occurrence. Informant informed about the occurrence to Radha and Hira and they took him to his home and than at night to the clinic of Dr. M Das at Seraikella where his statement was recorded by S.I. of Seraikella police station. The statement was read over on which he put his thumb impression. In his cross examination he stated that firstly accused assaulted Sristi with fist. On raising hulla Radha and Hira came after the accused Ratan fled away. 6. P.W. 1 Sristi Mahato is the cousin brother of the informant who was accompanying the informant at the time of occurrence. He stated that on the date of occurrence he and informant were going Kalapatar to attend a marriage. When they reachd in front of the house of Dulal Mahato the accused Ratan blocked their way to which they protested than accused Ratan assaulted Sudan Mahato with bhujali on his back and stomach in order to kill him. On his hulla Kusal Mahto came out and then the accused ran away. P.W. 1 further stated that Hira Mahato P.W. 3 and Radha Mahato P.W. 4 also came there who were also informed about the occurrence by them. In his cross examination he stated that he had seen the occurrence of assault standing near the place of occurrence. 7. P.W. 2 Radha Mahato, P.W. 3 Hira Mahto and P.W. 4 Kusal Mahto resides immediately nearby the place of occurrence. In his cross examination he stated that he had seen the occurrence of assault standing near the place of occurrence. 7. P.W. 2 Radha Mahato, P.W. 3 Hira Mahto and P.W. 4 Kusal Mahto resides immediately nearby the place of occurrence. They have stated that on hulla they reached near the house of Dulal Mahato where Sudan Mahato was lying in injured condition and he disclosed to him that Ratan Mahato had assaulted him with bhujali. In their cross examination, they said that they saw blood falling on the place of occurrence. 8. P.W. 6 Dr. Murlidhar Das examined the injured Sudan Mahto on requisition of Officer-in-Charge, Seraikella Police Station. He had found following injuries on his person: I. An incised wound on left scapular region two in number 1/2"x1/4"xbone deep and 1/2"x1/8"x1/2". ii. Incised wound on the back of abdomen 1/2"x1/4"x1/2". iii. Incised wound on the left lateral region of abdomen causing a hole going obliquely towards abdomen. The hole was operated and bleeding point was seized. The length of injury was 2"x1/2"x1/2". Doctor opined that the injuries were caused by sharp cutting and pointed weapon such as bhujali. The injuries were simple in nature and the cumulative effects of injuries may have caused the death of the patient. He proved the injury report which was marked as Ext.-1. 9. P.W. 7 is the Investigating Officer of this case. He stated that on 23.4.2002 at about 3.30 a.m., he recorded the statement of informant Sudan Mahato in the clinic of Dr. M. Das. He has proved the fardbeyan, endorsement on the fardbeyan and formal FIR which were marked as Ext.- 2, Ext.-2/1 and Ext.- 3 respectively. ARGUMENTS OF THE APPELLANTS 10. Learned counsel for the appellant has first and foremost taken us to the evidences of the prosecution witnesses and tried to point out the inconsistencies or contradictions or variations or the weaknesses that may be helpful in his argument. First and foremost he has referred to the evidence of informant P.W. 5 Sudan Mahato who is himself the injured eye witness and pointed out that major variations or contradictions in the evidence of informant is that while in his fardbeyan, he has indicated that he was assaulted on the stomach only with the bhujali but in his deposition he has said that he was assaulted with the bhujali on the stomach as well as on the back. Counsel therefore says that this is a gross attempt by the informant to develop his case in such manner so that the accused or the appellant will be implicated for a serious offence under section 307 of IPC when that is not the case. He has referred to the evidence of P.W. 1 Sristi Mahato and submitted that he claims to be eye an witness, however, he has deposed in variation with the fardbeyan in the sense that he has not mentioned about any assault on himself. His deposition is also inconsistent to his own examnation-in-chief and and his cross examination as to whether they had gone to the hospital first or they had gone to the home first. In his evidence P.W. 1 has deposed that the assault on the informant was on the back but in deposition of P.W. 5, the informant has stated that he was assaulted also on the stomach apart from back. Counsel, at this juncture takes occasion to point out that if there was any intention to assault the assault could have been very well be made on the neck which is a sensitive and vital part of the body and assault on the neck would have been fatal and the offence under section 307 IPC would surely have been made out. Counsel also stresses here that it is to be noted that there was no repeated blow or assault made out. It has come from the records and the evidence of prosecution witnesses that even after the assault he had fallen down and if the appellant really had any intention to kill then after the P.W. 5 had fallen down then accused could have continued the assault and finished the informant but that had not been done so. Learned counsel further submitted that P.W. 2 is Radha Mahato and it is apparent that he has not seen the assault and he is hearsay and only seen the injured because he had only arrived after alarm. Counsel for the appellant points out from his deposition that in para 2 this witness or P.W. 2 has said that there was blood at the place of occurrence which is in variance with the evidence of P.W. 1 wherein in para 3, P.W. 1 has stated that where assault took place there was no blood. Counsel for the appellant points out from his deposition that in para 2 this witness or P.W. 2 has said that there was blood at the place of occurrence which is in variance with the evidence of P.W. 1 wherein in para 3, P.W. 1 has stated that where assault took place there was no blood. Learned counsel, therefore, submitted that is an inconsistency between the evidence of P.W. 2 and P.W. 1 regarding the presence of blood at the place of occurrence. Even P.W. 7 the Investigating Officer of the case stated that there was no blood stains at the place of occurrence. Learned counsel further submitted that P.W. 3 Hira Mahato is also only a hearsay witness because he also reached the place of occurrence on the alarm and then saw the injured person. Learned counsel for the appellants says that his version of the evidence regarding the falling of blood at the place of occurrence is similar to P.W. 2. P.W. 3 stated that there was blood at the place of occurrence which is at variance with the evidence of P.W. 1 as well as P.W. 7 who have said that there was no blood at the place of occurrence. P.W. 3 has further deposed that there was no injury on face, stomach and chest. Learned counsel, therefore submitted that as per evidence of this witness, stomach injury is doubtful. P.W. 3 further stated that there was four injuries on the back and therefore did not say about the injury on the abdomen which is said to be done so by the appellant. Learned counsel further submitted that P.W. 4 Kusal Mahato stated t hat assault was made on back at 3 to 4 places and hence even by this witness seems that the assault was only made on the back and not on the abdomen as has been sought to be made out by the informant. Therefore, there is variance in the evidence of the informant himself along with the evidence of P.W. 4. This witness has also deposed that when he had reached the place of occurrence then Ratan Mahato had fled. Appellant''s counsel therefore submitted that definitely this witness or P.W. 4 is surely not an eye witness and has not at all seen the assault. 11. Learned counsel for the appellant has then referred to the evidence of P.W. 6 Dr. This witness has also deposed that when he had reached the place of occurrence then Ratan Mahato had fled. Appellant''s counsel therefore submitted that definitely this witness or P.W. 4 is surely not an eye witness and has not at all seen the assault. 11. Learned counsel for the appellant has then referred to the evidence of P.W. 6 Dr. Murlidhar Das and pointed out that the main aspect of his injury report is that all the injuries are simple in nature which, definitely indicates that there was no intention by the appellant to cause any such injury which would bring it within the ambit of purview of section 307 IPC. Referring to the evidence of I.O. or P.W. 7, counsel for the appellant has pointed out that it has come in his evidence that nothing significant has been found at the place of occurrence specifically he did not find any blood stained mark on the place of occurrence and therefore from the evidence of the I.O. some doubt is cast on the assault as alleged by the informant and hence the evidence of the informant is doubtful. 12. Learned counsel for the appellant in summarizing his argument has pointed out that there is much inconsistency or contradictions in the evidence of the prosecution witnesses as well as the informant regarding the nature of assault particularly whether the assault was made on the stomach or whether it was made on the back or whether it was made both on the stomach or back as P.W. 1, P.W. 2, P.W. 3 and P.W. 4 have not said about assault on the stomach but the informant has said about the assault on his stomach also. Therefore P.W. 1 to P.W. 4 did not say about assault on stomach of the informant the allegation as made out is much doubtful. Particularly when P.W. 1 who is said to be an eye witness did not say the same evidence regarding the assault on stomach. In the evidence of the I.O. It has come that there was no blood stains at the place of occurrence which would mean that nothing much of seriousness or consequence had taken place. Particularly when P.W. 1 who is said to be an eye witness did not say the same evidence regarding the assault on stomach. In the evidence of the I.O. It has come that there was no blood stains at the place of occurrence which would mean that nothing much of seriousness or consequence had taken place. Referring to the evidence of the doctor, counsel for the appellant points out that it is to be taken into consideration that all the injuries were simple in nature and with such injuries the offfence of section 307 IPC is surely not made out. 13. Learned counsel also submits that no where in the evidence of prosecution witnesses any motive or dispute for the assault has been stated. Apparently , this is the first time an altercation took place and there is no mention of any prior enmity also. Therefore, it cannot be said that there was animus on the part of the appellants to the extent that he would want to inflict injuries equivalent to those falling under section 307 IPC. 14. Learned counsel further submitted that it has come in evidence that the appellant was first objected and it is only when the informant had protested then altercation took place resulting in assault if any. Therefore, it cannot be said that intention was the prime factor driving the appellant to commit the offence. Counsel for the appellant says that it is also indicated that the appellant was not a criminal and it can be made out that he very willingly surrendered to the hands of the law and brought himself into the mercy of the law. This is so because there is no mention of any antecedents and therefore having realized that a mistake may have been committed, he voluntarily surrendered to the law and therefore this speaks about his character and therefore benefit should be allowed to him on this score. 15. This is so because there is no mention of any antecedents and therefore having realized that a mistake may have been committed, he voluntarily surrendered to the law and therefore this speaks about his character and therefore benefit should be allowed to him on this score. 15. Learned counsel has lastly argued without admitting the guilt of the appellant that the incident is of the year 2002 and the impugned judgment is of the year 2003 and on the date when impugned judgment was passed by the learned court below, appellant was 55 years of age and after that about 17 years have passed and appellant is now about 72 years of age and allying from various old age diseases and therefore period already undergone by him should be considered as period sufficiently served. Learned counsel further submitted that appellant has spent about one year, one month and 24 days in custody and therefore sentence served by him in the custody shall be considered by this court while deciding the appeal. ARGUMENTS OF THE APP 16. Learned counsel for the State, has on the other hand has referred to the some of the evidences of the prosecution witnesses and pointed out that on assault to informant Hira Mahato, Radha Mahto and Kusal Mahato had came on alarm which make out a case that an occurrence did take place. Pointing to the evidence of informant P.W. 5 counsel says that P.W. 5 had seen the bhujali with the accused in his hand, therefore, this demonstrate intention of the appellant. Learned counsel further submitted that repeated assault were made on the person of informant because as many as four injured wound were found by the doctor or P.W. 7 on the vital part of the body such as scapular region and in left lateral region of abdomen. Learned counsel for the State has then referred to the evidence of P.W. 6 Dr. Murlidhar Das and pointed out that from his evidence there are three injuries are indicated and doctor opined all the injuries were by sharp and pointed weapon such as bhujali. Counsel further points out that it is indicated from the doctors opinion that the cumulative effect of the injuries could have resulted in the death of the injured person. Therefore, based on the aforesaid evidences of the doctor the offence under section 307 IPC is fully made out. Counsel further points out that it is indicated from the doctors opinion that the cumulative effect of the injuries could have resulted in the death of the injured person. Therefore, based on the aforesaid evidences of the doctor the offence under section 307 IPC is fully made out. Learned counsel further submitted that the appellant cannot escape responsibility for the alleged crime and hence the judgment of conviction and order of sentence passed by the learned trial court is fully justified and sustainable and requires no interference by this court. FINDINGS AND CONCLUSIONS 17. Having heard both counsels; having gone through the records of the case and the evidences and in the facts and circumstances of the case I find that the informant P.W. 5 Sudan Mahto is himself an injured eye witness. The injury sustained by him is corroborated by the eye witness to assault P.W. 1 Sristi Mahto who accompanied the informant on the day of occurrence. The incident of assault is further corroborated by the evidences of P.W. 2, P.W. 3 and P.W. 4 who are not eye witnesses to the occurrence but they reached the place of occurrence just after the assault on the informant on hearing hulla. The prosecution case is further supported by the medical evidence of doctor P.W. 6 who supported the ocular evidence of injured informant P.W. 5 and eye witness P.W. 1. So far as injury caused to the informant is concerned, doctor had found three injuries on the person of informant Sudan Mahto. First injury was two incised wound on left scapular region, second injury was incised wound on the back of the abdomen and third injury was incised wound on left lateral region of abdomen causing a hole going obliquely towards abdomen. The size of two incised wound caused to the informant Sudan Mahto was 1/2"x 1/4"x bone deep and 1/2"x1/8"x1/2". Further size of incised wound on the back of abdomen was 1/2"x1/4"x1/2". Though, doctor or P.W. 6 opined regarding the nature of injury to be simple but I do not agree with opinion of doctor as injury was caused to the informant on scapular region and lateral region of abdomen causing a hole going obliquely towards abdomen and that too assault was caused by bhujali to the informant and was repeated as doctor found as many as four incised wound on the person of informant Sudan Mahto. The doctor also stated at para 4 of his deposition that in cumulative effect of injuries may have caused the death of patient. 18. So, based on above discussion, I find that on the day of occurrence appellant Ratan Mahto had restrained the informant P.W. 5 and his cousin brother P.W. 1 Sristi Mahto while both the brother were going to attend an invitation and the incident of assault on the informant had also taken place due to the dispute regarding using the path which was obstructed by the appellant. I further find that appellant Ratan Mahto assaulted repeatedly on the vital part of the body of the informant with an intention to kill the informant and the doctor or P.W. 6 has stated that cumulative effect of injuries may have caused the death of informant. Hence, prosecution has been able to prove the charges under section 307 and 341 of the Indian Penal Code against the appellant. 19. Therefore the judgment of conviction dated 17.02.2003 passed by the learned Sessions Judge, Seraikella Kharsawan at Kharsawan in Sessions Trial No. 118 of 2002 is sustained and therefore upheld. Regarding sentence, bearing that he has already spent some period in custody, and also bearing the mitigating circumstances in mind and that appellant is now of 72 years old, it will suffice if the appellant is taken into custody to serve out a sentence of three months only now from the date of his arrest. His bail bonds are cancelled. Learned court below to take steps to procure his arrest. 20. Accordingly, appeal is dismissed with modification in sentence.