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2021 DIGILAW 1033 (JHR)

Kalpu Mahto v. State of Jharkhand

2021-12-13

NAVNEET KUMAR

body2021
JUDGMENT : This appeal is preferred against the Judgment of Conviction and order of sentence dated 25th July 2003, passed by the learned Additional Sessions Judge, FTC-VIII, Hazaribagh, in S.T. No.315 of 1987, whereby the accused appellants Kalpu Mahto, Premdhari Mahto and Tribhuwan Mahto have been convicted for the offence punishable under Sections 148 and 326 of IPC and sentenced to undergo R.I. for one year u/s 148 of IPC and 2 ½ years u/s 326 of IPC and further the convicts Govind Mahto, Jugan Mahto (since deceased during pendency of appeal) and Rameshwar Mahto are sentenced to undergo imprisonment for a period of six months under Section 147 IPC and R.I. for 2 ½ years u/s 326 of IPC and all the aforesaid accused persons were also sentenced to pay a fine of Rs.500/- each u/s 326 IPC and in default of payment of fine, one month imprisonment was further awarded. 2. It appears from the record that the accused-appellant no.2 Jagan Mahto s/o Late Khedan Mahto had expired during pendency of this appeal and the learned APP has filed an affidavit to that effect by which it appears that the said accused-appellant no.2 Jagan Mahto s/o Late Khedan Mahto has died about 14 years ago and the local Mukhiya and the member of the Panchayat Samiti had issued Death Certificate which are the part of the said affidavit filed on behalf of the State by APP which is also found from the report dated 13.5.19 received from the Principal District and Sessions Judge, Hazaribagh which is available on the record and hence his name is deleted from the Cause Title of Appeal as the appeal has abetted against the said the accused -appellant no. 2 Jagan Mahto in the light of the submissions advanced by the learned defence counsel appearing on behalf of the deceased accused-appellant no. 2 Jagan Mahto as no close relative wanted to continue with this appeal on his behalf. 3. The allegations against the appellants arose in the wake of the written report of informant that he was harvesting potato crops from the land of Muneshwar Mahto. His son Braj Kishore was sitting on a Rickshaw brought by Muneshwar Mahto. At the relevant time, the accused Degan Mahto (since deceased) was going with pair of Bullock which, started unusual behaviour seeing the rickshaw. His son Braj Kishore was sitting on a Rickshaw brought by Muneshwar Mahto. At the relevant time, the accused Degan Mahto (since deceased) was going with pair of Bullock which, started unusual behaviour seeing the rickshaw. Then the said Degan Mahto since deceased started abusing his son and him also. In the meantime, other accused persons reached there armed with lathi, gandasa and have assaulted the informant and his son. Both of them sustained head injury and other injuries and thereafter they left. The incident took place on 07.02.87 at about 6 pm and then he along with his injured brother went to police station for lodging the case. 4. On the basis of the written report of the informant, the FIR was lodged and the case was registered against the accused persons and investigation was taken up. After investigation, the police submitted the charge-sheet in this case, on the basis of which, cognizance of the offences was taken and the case was committed to the Court of Sessions. The accused persons pleaded not guilty to the charges explained to them and denied the allegations levelled against them and after trial, the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 5. Heard Mr. Pramod Kumar, learned defence counsel appearing on behalf of the appellants and Mr. Bishambhar Shastri, APP appearing on behalf of the State. Arguments on behalf of the learned defence counsel 6. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel contended that the impugned Judgment of conviction and order of sentence is illegal, arbitrary and perverse to the law and in the facts and circumstances of this case. It is contended that the learned trial court failed to appreciate the evidence of witnesses, who are gotias (agnates) and cannot say the relevant date, day and month about the occurrence and gravely erred in accepting the contradictory evidences of PW-4 Laldhari Mahto and PW – 5 Jehal Mahto. It is further contended that learned court below has not taken into consideration that there was occurrence from both the sides and counter case was filed. It is further contended that learned court below has not taken into consideration that there was occurrence from both the sides and counter case was filed. It is contended that the I.O. in this case has not been examined, which has highly prejudiced the case of the prosecution and it is prayed that in the facts and circumstances of the case, the impugned Judgment of conviction and order sentence is fit to be set-aside and the appellants ought to have been given the benefit of doubt. Arguments on behalf of the APP appearing on behalf of the State 7. On the other hand the learned APP appearing on behalf of the State contended that the learned trial court has rightly convicted the appellants for the offences punishable as aforesaid and awarded the sentence and accordingly there is no merit in the appeal and it is fit to be dismissed. Findings 8. Having heard the parties and after going through the evidence available on records, it is found that it is admitted case of the prosecution party and the informant people are gotias (agnates) and there had been a landed property dispute between them and for this there was a civil suit, which was also pending. It is also admitted that there is case and counter case between the parties for the same occurrence, but the fact remains to take into consideration as emanating from the testimonies of witnesses examined on behalf of the prosecution is that on the date of occurrence, on the relevant date and time, informants’ people were harvesting potato crops and a quarrel had taken place between the accused persons and the informants’ people, by which, three persons of informants’ side namely PW – 2 Chowa Mahto, PW – 3 Braj Kishor Mahto and PW – 6 the informant Chhatu Mahto got injured by the weapons used by the accused persons as narrated uniformly and consistently in the depositions of the witnesses examined on behalf of the prosecution, particularly PWs-2, 3 & 6 above named. It is found from the depositions of PWs. 2, 3 & 6 that they have consistently and uniformly corroborating their depositions with each other and they are falling in line with PW – 7 Dr. It is found from the depositions of PWs. 2, 3 & 6 that they have consistently and uniformly corroborating their depositions with each other and they are falling in line with PW – 7 Dr. M.S. Haque, who had examined all the three injured witnesses namely PWs 2, 3 and 6 on the point of the injuries caused to the injured persons namely, Chowa Mahto, Braj Kishore Mahto and Chattu Mahto. 9. PW – 7 Dr. M.S. Haque examined on behalf of the prosecution, found the following injuries on the injured persons, PWs-2, 3 & 6, has said that he examined the injured persons on 07.02.87 between 8 to 8.30 pm. He has proved the injury reports marked as Exts. 2, 2/1 & 2/2. and has given the details of the injuries found by him. He found several head injuries on the person of PW – 6. One head injury on the person of PW- 3 and incised bleeding injury on the head of PW -2. PW-7 has opined that the injury No.2 found on the person of PW – 6, the informant, was grievous as the said injury is incised bleeding of 3”x1/2’, liner cut of bone of the middle of left side on head. Of course, PW -7 is found other injuries simple on the person of PW -2, 3 and 6. In his cross-examination, PW -7 clearly admitted that the head injuries of PW – 1, 2 and 6 were not possible by fall. 10. From perusal of the above deposition of the doctor and also the injury reports, which are exhibits 2, 2/1 and 2/2, it is found that all other injuries except as said above were simple in nature as opined by the doctor also. PW-1, PW-4 and PW – 5 examined on behalf of the prosecution are also said to be the eyewitnesses to the occurrence and they reached at the place of occurrence on hulla and they have stated about the occurrence in a consistent manner by categorically deposing that the accused-appellants had inflicted injuries upon P.W.2, P.W.3 and P.W.6. PW-1, PW-4 and PW – 5 examined on behalf of the prosecution are also said to be the eyewitnesses to the occurrence and they reached at the place of occurrence on hulla and they have stated about the occurrence in a consistent manner by categorically deposing that the accused-appellants had inflicted injuries upon P.W.2, P.W.3 and P.W.6. Further, it is found that the I.O. in this case has not been examined and further the alleged weapons, which are said to have been used as means of assault by the accused persons, are not brought on record, neither it was shown to the doctor, by which, it could not be inferred that the injuries inflicted upon the informants’ people (P.W.2, P.W.3 and P.W.6.) are caused by the weapons including lathi & gandasa alleged to have been used by the accused appellants in order to establish the offence punishable under section 326 of IPC. Since, it is a serious offence, under which, all the accused persons have been convicted for the offence punishable inter alia under Section 326 of IPC, non-examination of the I.O. has debarred him to bring out the contradictions in the statement of the witnesses examined on behalf of the prosecution as the prosecution witnesses have been confronted in their the cross examinations with their respective previous earlier statements given before the police, and therefore, it is found that it has caused prejudice to the accused appellants to the extent their conviction under Section 326 of IPC is concerned. It is further evident from the testimonies of the material witnesses, who are said to have been injured and examined as PW-2, PW -3 and PW -6(informant of the present case), where P.W. 3 and P.W.6 categorically stated in their testimonies that this case has been resolved between them. This compromise is a very significant fact in view of the admitted case that both the parties are agnates and there is a dispute of landed properties between them and further there was case and counter case to the same occurrence. The informant P.W.6 in para 25 of his deposition has pointedly deposed that the matter has been compromised between them with the accused. The informant P.W.6 in para 25 of his deposition has pointedly deposed that the matter has been compromised between them with the accused. Similarly PW – 3 in para – 15 had stated that the compromise had taken place between both the parties and thus both the parties including the injured persons particularly P.W.3 and P.W.6 have entered into a compromise. Apart from their testimonies in their depositions before the trial court, learned defence counsel appearing on behalf of the appellants has also filed one I.A. No.9829 of 2019 before this Court, which is a joint compromise petition between the accused- appellants namely Kalpu Mahto, Rameshwar Mahto, Tribhuwan Mahto, Govind Mahto and Premdhari Mahto at one side and the injured witnesses, who are PW – 2, PW – 3 namely Chow Mahto and Barajkishore Mahto are on other side. It is also stated that PW- 6 has expired and therefore he could not be the party to the compromise petition, although, P.W.6 has specifically and categorically in explicit manner stated about compromise in his testimonies vide para – 25 of his deposition. 11. From the contents of the I.A., it appears that both the parties have compromised in view of the admitted position of the prosecution that they are descendents of the common ancestors and a partition suit was going on between them. 12. In view of the aforesaid findings and appraisal of the witnesses, it is well founded that it is admitted case that both the parties are closely related to each other, as they were agnates and there had been a case and counter case between the parties for the same occurrence. Apart from this, there was a partition suit also pending for the landed property and the witnesses examined on behalf of the prosecution are interested witnesses, but consistent and uniform depositions of the witnesses, particularly, the injured witnesses, PWs-2, 3 & 6 consistently deposed that they had been injured, which is fully corroborated by the doctor PW- 7. Apart from this, there was a partition suit also pending for the landed property and the witnesses examined on behalf of the prosecution are interested witnesses, but consistent and uniform depositions of the witnesses, particularly, the injured witnesses, PWs-2, 3 & 6 consistently deposed that they had been injured, which is fully corroborated by the doctor PW- 7. , therefore, the learned trial court could not appreciate all these facts and convicted the appellants for the offence punishable under Section 326 of the penal code, which is not tenable in the eyes of law, in view of the aforesaid evaluation of the evidences and it is case, where the accused appellants are found guilty for the offences punishable under Section 324 of IPC instead of Section 326 along with Sections 147 and 148 of IPC. 13. In this view of the matter, the findings of the lower court, under which, the accused appellants Kalpu Mahto, Premdhari Mahto and Tribhuwan Mahto have been found guilty for the offences punishable under Sections 148 and 326 of penal code and further the guilt and conviction of the remaining accused appellants Gobind Mahto, and Rameshwar Mahto for the offences punishable under Sections 147 and 326 of penal code are set-aside and their guilt and conviction is altered accordingly. Hence the accused-appellants Kalpu Mahto, Premdhari Mahto and Tribhuwan Mahto are convicted for the offences punishable under Sections 148 and 324 of IPC and accused-appellants Gobind Mahto, and Rameshwar Mahto are convicted for the offences punishable under sectons 147 and 324 of the IPC. One of the accused-appellant no 2 Jagan Mahto had expired during the course of pending this appeal and his name has been deleted as the appeal has abetted against the said the accused - appellant no 2 Jagan Mahto in the light of the submissions advanced by the learned defence counsel appearing on behalf of the deceased accused-appellant no. 2 Jagan Mahto as no close relative wanted to continue with this appeal on his behalf. 14. On the point of sentence, learned defence counsel has pointed out that the accused appellants Kalpu Mahto, Jagan Mahto and Rameshwar Mahto had remained in jail since 22.09.2000 to 18.11.2000 and Premdhari Mahto, Tribhuwan Mahto and Govind Mahto remained in jail since 12.01.2001 to 24.01.2001. 14. On the point of sentence, learned defence counsel has pointed out that the accused appellants Kalpu Mahto, Jagan Mahto and Rameshwar Mahto had remained in jail since 22.09.2000 to 18.11.2000 and Premdhari Mahto, Tribhuwan Mahto and Govind Mahto remained in jail since 12.01.2001 to 24.01.2001. Further, it is found that there is nothing on record to show about their criminal history of the appellants except the present case. It is also well admitted that both the parties are agnates and they are relating to common ancestors and this dispute arose out of the landed property and there was case and counter case and all the accused-appellants are suffering the mental agony and harassment of criminal proceedings since last 20 years, therefore, in this view of the matter, it is found just and fair not to send the accused appellants in jail again and therefore all the appellants were sentenced to imprisonment for the period already undergone. Since all the appellants are on bail, they are discharged from the liabilities of bail bonds. Further the it is found that the learned trial court has imposed sentence of fine of Rs. 500 to be paid by each of the appellant under section 326 of the IPC and as such the said sentence of fine as imposed by the learned trial court is also set aside under facts and circumstances of the case and as a result order of sentence is modified accordingly. 15. In the backdrop, this appeal is partly allowed as above and as such the I.A. No. 9829 of 2019 also stands disposed of. 16. Let the Lower Court Record be sent back forthwith to the concerned court below.