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2019 DIGILAW 1975 (JHR)

Shankar Mandal v. State Of Jharkhand

2019-12-06

RAJESH KUMAR

body2019
JUDGMENT Rajesh Kumar, J. - Heard Ms. Savita Kumari, learned counsel for the appellants and Ms. Amrita Kumari, learned A.P.P. appearing for the State. 2. This appeal is directed against the judgment of conviction dated 03.03.2006 and order of sentence dated 04.03.2006 passed by Shri Bhola Prasad, Additional Sessions Judge-II, Rajmahal in Sessions Case No. 161/2001 whereby and whereunder the appellants have been convicted under Section 307 of the I.P.C. and sentenced to undergo rigorous imprisonment for five years. 3. On the fardbeyan of Shakuntala Devi, P.W.3, Rajmahal P.S. Case No.117/1999 has been registered on 19.06.1999. 4. As per the F.I.R., the appellants were constructing their house on the disputed land which has been objected by the Shakuntala Devi (informant). On the next day, when her husband (Niranjan Mandal) came to house then these appellants entered into the house in the night at about 9-10 P.M. and asked the informant about whereabouts of her husband and a complaint had been made regarding non execution of transfer deed and thereafter they had assaulted the informant, her husband and her father-in-law with Jhorni (sharp cutting weapon), iron rod and lathi and also taken away a radio, cash of Rs.3,000/- and some silver ornaments. On hulla, neighbours, namely, Nityanarayan Mandal, Tiger Mandal, Ramchandra Mandal and others came for their rescue. 5. After completion of investigation, final form has been submitted against the appellants under Sections 323, 324 and 307 of the IPC. Thereafter, cognizance has been taken. Case has been committed to the court of sessions. Charge has been framed under Sections 323, 324 and 380/34 to which appellants pleaded not guilty. Accordingly, trial has commenced. 6. Prosecution has examined altogether six witnesses. Considering the evidence on record, the appellants have been convicted under Section 307 of the Indian Penal Code and sentenced for R.I. for five years and being aggrieved, the present appeal has been filed. 7. The issue raised before this Court is "Whether there is sufficient evidence on record for the charged offence". 8. P.W-1, Ramchandra Mandal, who has been shown as a witness of the occurrence in the F.I.R. has become hostile and not supported the incident. 9. P.W.-2, Niranjan Mandal (husband of the informant) has supported the F.I.R. but has made certain material improvements. 8. P.W-1, Ramchandra Mandal, who has been shown as a witness of the occurrence in the F.I.R. has become hostile and not supported the incident. 9. P.W.-2, Niranjan Mandal (husband of the informant) has supported the F.I.R. but has made certain material improvements. It has been alleged that gun has been fired by the accused and on hearing the sound of gun fire his family members had come out and thereafter they have been assaulted by the accused persons by hasuwa, iron rod and lathi. In his cross examination, it has been admitted that it is a very large village. It has also been testified that the villagers have reached at the place of occurrence and they have helped them by giving water and then shifted to the hospital. 10. P.W.-3, Shakuntala Devi is the informant of the case. Her testimony is also as the testimony of P.W.2. She had also improved by adding the gun fire. P.W. 4 is the father-in-law of the informant has also said exactly on the same line. P.W.-5 is the Doctor, who has proved the injury report brought on record which is exhibited as Ext. 2 series. 11. The injuries are as follows: 1. One lacerated wound over left upper arm measuring 5" x 5" x ". 2. One lacerated wound over left knee joint measuring 1" x 1" x 1/8". 3. One lacerated wound over left leg measuring 2" x 1/2" x 1/3". 4. Swelling and tenderness over right scapular region measuring 6" x 6". 5. Swelling over left scapular region measuring 5" x 5". 6. Multiple bruises over posterior chest wall. 7. One lacerated wound over left little finger measuring 1" x " x ". 8. One lacerated wound over right fore arm measuring 1/2" x 1/2" x 1/8". 9. One lacerated wound on perital region measuring 2" x 1/8" x 1/8". 10. Swelling and tenderness over whole of interior chest wall. 12. Argument has been advanced by the learned counsel for the appellants that there is a land dispute between the parties and due to enmity, they have been falsely implicated in this case. No independent witness has been examined in this case. Further, it has been admitted that P.W.2, i.e the I.O., has not visited the place of occurrence and after lodging of the F.I.R., statement has not been recorded by him. No independent witness has been examined in this case. Further, it has been admitted that P.W.2, i.e the I.O., has not visited the place of occurrence and after lodging of the F.I.R., statement has not been recorded by him. There is material improvement in the story as there was no mentioning of gun fire. Even the testimony of alleged eye witness is accepted that it is a case of Section 324 of the IPC and not under Section 307 of the IPC as because if the gun was available, there was no reason that why the same could not be used. No intention has been evidenced for killing the informant and her family members and further injury brought on record is not sufficient in ordinary course of nature to cause death of a person. No circumstance has been alleged or proved frustrating the attempt of the appellants to kill the informant and her family members. 13. Per contra, learned APP has argued that non examination of I.O. will not frustrate the case of the prosecution. Further, three injured witnesses have supported the prosecution story which gets corroboration from the injury report as proved by P.W.5 (the Doctor). 14. Heard learned counsel for the parties. 15. It appears that there is land dispute between the parties and they are relatives. The place of occurrence is large village having approximately 500 houses which has been testified by P.W. 2 in her deposition. As per the F.I.R., Nityanarayan Mandal, Tiger Mandal, Ramchandra Mandal and others have visited the place of occurrence but only Ramchandra Mandal has been examined and declared hostile. Not a single independent witness has been examined in support of the prosecution story. 16. It is trite that if there is enmity between the parties and there is possibility of false implication then the testimony of the witness has to be examined with great caution. 17. In the present case, neither Investigating Officer nor independent witness has been examined. Further, there is material contradiction between the story propounded in the F.I.R. and deposed before the Trial Court. 18. Thus, there is a serious doubt regarding the manner of commission of the crime and the possibility of false implication of these appellants cannot get ruled out. 19. In the present case, neither Investigating Officer nor independent witness has been examined. Further, there is material contradiction between the story propounded in the F.I.R. and deposed before the Trial Court. 18. Thus, there is a serious doubt regarding the manner of commission of the crime and the possibility of false implication of these appellants cannot get ruled out. 19. In view of above discussion and considering the materials available on record, the conviction of appellants is not sustainable and as such, judgment of conviction dated 03.03.2006 and order of sentence dated 04.03.2006 passed by Shri Bhola Prasad, Additional Sessions Judge-II, Rajmahal in Sessions Case No. 161/2001 is, hereby, set aside. Accordingly, the appeal is, hereby, allowed. 20. Since the appellants are already on bail, they are discharged from the liability of their bail bonds.