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2022 DIGILAW 1003 (JHR)

Ganesh Mahto v. State of Jharkhand

2022-08-10

NAVNEET KUMAR

body2022
ORDER : 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 01.06.2005 passed by the learned Additional Sessions Judge, F.T.C. No. IV, Deoghar in Sessions Case No. 44 of 2004, corresponding to Karon P.S. Case No. 88 of 2002, G.R. Case No. 505 of 2002 at Deoghar, Jharkhand, whereby and where under the sole appellant was convicted for the offence punishable under section 325 of the Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced to undergo rigorous imprisonment (hereinafter referred to as R.I.) for 3 (three) years along with a fine of Rs. 1,000/- (Rupees One Thousand only) and in default of payment of fine, the appellant was further sentenced to undergo three months R.I. and the sentences were directed to run concurrently. 2. The prosecution story arose in the wake of fardbeyan of Badri Mahto s/o late Jhagru Mahto of Village Fulchi Tola Bahra Bak P.S. Karon, Distt. Deoghar recorded by A.S.I. Sudisht Prasad Singh of Karon Police Station on 28.10.2002 at 13.30 hours at Referral Hospital, Madhupur. Briefly stating the allegations as set out in fardbeyan are as under:- The informant stated that on 27.10.2002 at about 1 o’clock in the afternoon, he along with his son, daughter and daughter-in-law were harvesting paddy crops in their agricultural field. In the meantime, their gotias (cousin) including Jogeshwar Mahto, Rewa Mahto, Ganesh Mahto and Balram Mahto came one by one and raised objection. It has been alleged that there was quarrel between the parties and the said Ganesh Mahto holding tangi in his hand inflicted injury upon the head of informant Badri Mahto (P.W.-5) due to which he fell down. Further, it has been alleged that Sanjay Mahto, Pankaj Mahto, Guria Devi also came at the place of occurrence and started assaulting the informant and his family members who were harvesting the paddy crops. It has been stated in the fardbeyan that one Vimli Devi and the wife of Balram Mahto also came at the place of occurrence and started assaulting the informant as well as his family members by holding lathi and iron rod. It has been stated in the fardbeyan that one Vimli Devi and the wife of Balram Mahto also came at the place of occurrence and started assaulting the informant as well as his family members by holding lathi and iron rod. It has also been alleged that one Shaligram Yadav, who is the son of informant and one Jhuna Devi, daughter of the informant, both came to rescue the informant, but both were beaten by Sanjay Mahto and the wife of Balram Mahto by lathis respectively, and then, Sanajy Mahto snatched the mathia i.e. silver bangles and sikdi i.e. silver chain which belonged to Jhuna Devi (daughter of the informant). When the daughter in law of the informant came to rescue them, Vimli Devi and Pankaj Mahto started assaulting her by fists and slaps and snatched mathia of silver and gold-nose pin. It was further mentioned in the fardbeyan that on raising alarm, villagers started assembling, then the accused persons left that place and took away two bronze plates, one bucket and one lota. Thereafter, the informant and the other injured persons went directly to the hospital for treatment at late night and then his statement was recorded in the hospital itself. 3. On the basis of the aforesaid fardbeyan, the case was registered as Karon P.S. No. 88 of 2002 dated 28.10.2002 u/ss. 447, 341, 323, 324, 307 and 379 r/w 34 of the I.P.C. against the accused persons including the present appellant. On the basis of the F.I.R., investigation was started and the charge-sheet was submitted against the accused persons including the present appellant. On the basis of such charge-sheet, the cognizance was taken u/ss. 341, 447, 323, 324, 307 and 379 r/w 34 of the IPC. It appears that two of the accused persons have been declared juvenile and therefore their case was separated. Thereafter, learned A.D.J. F.T.C. 4th Deoghar had framed charges on 02-04-2004 against all the seven accused including the present appellant u/ss 341, 379, 447/34 and 307/34 of the I.P.C. 4. The learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 5. Heard Mr. Arvind Kr. Choudhary, the learned counsel for the appellant and Mr. Shailesh Kr. Sinha, learnedA.P.P. for the State. Arguments advanced on behalf of the appellant 6. The learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 5. Heard Mr. Arvind Kr. Choudhary, the learned counsel for the appellant and Mr. Shailesh Kr. Sinha, learnedA.P.P. for the State. Arguments advanced on behalf of the appellant 6. Assailing the impugned judgment of conviction and order of sentence, the learned senior counsel appearing for the appellant submitted that the learned trial court has failed to appreciate the fact that all the witnesses examined on behalf of the prosecution are interested witnesses and they belong to the same family and they are closely related to each other and further it is also an admitted case that there was an enmity between both the parties due to a landed property dispute. It has also been contended that the learned trial court has failed to appreciate the fact that not a single independent witness has been examined on behalf of the prosecution and there are major contradictions in the statement of the prosecution witnesses, and, therefore, the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments advanced on behalf of the State 7. On the other hand, learned A.P.P. appearing on behalf of the State opposed the contentions raised on behalf of the appellants and submitted that the learned trial court has rightly appreciated the depositions of the witnesses. The injuries which are alleged to have been inflicted upon the informant are corroborated by the injury reports and also from the testimonies of the doctors and, therefore, the learned trial court has rightly held the appellants guilty for the offence punishable u/s 325 of the I.P.C. and there is no illegality in the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed being devoid of merit. Appraisal and Findings 8. Having heard the parties, perused the record of this case including Lower Court Record. 9. In order to substantiate its case, the prosecution has been able to examined altogether seven witnesses as under: 1) P.W.-1 Jhuna Devi, (daughter of the informant) 2) P.W.2- Shaligram Mahto, (son of the informant) 3) P.W.-3 Rita Devi (daughter- in-law of the informant) 4) P.W. 4 Prayag Mahto, (cousin) 5) P.W. 5 Badri Mahto, (the injured informant witness) 6) P.W.-6 Dr. Abhay Kumar Yadav (the Doctor/ Medical Officer) 7) P.W. 7- Sudisht Prasad Singh, (the investigating Officer) Apart from the oral evidences, some documentary evidences have also been adduced by the prosecution, these are- Ext. 1- and Ext. 1/1 are injury reports, Ext. 2- fardbeyan, Ext. 3-endorsement on the fardbeyan, Ext. 4- signature of Janardan Tiwari on injury reports for requisition to the Medical Officer, Referral Hospital, Madhupur for the medical examination of the injured informant Badri Mahto. Ext. 5 is the endorsement of the then Officer In-charge on the F.I.R. On the other hand, accused appellant had also adduced oral evidences viz. Nand Kishore Lal Verma (D.W. 1), Krishna Nandan Lala Verma (D.W. 2) and Nevani Yadav (D.W. 3) and all these witnesses are formal in nature and had brought on record the following documents in support of their defence- Ext. A- certified copy of judgment dated 20.12.1998 passed in G.R. Case No 451 of 1985/T.R. Case No. 179 of 1988, Ext. B- Informatory Petition under section 39 of Cr. P.C., Ext. C- signature of Jageshwar Mahto on petition, Ext. C/1- signature of Ganesh Mahato on 07.06.1993 in petition to C.O. Madhupur and Ext. D- Petition of Ganesh Mahto addressed to C.O. Madhupur on 07.06.1993. 10. It is an admitted case of the prosecution that both the parties including the family members of the appellant and the informant are gotias (descendants of the common ancestor) and they are cousin. The dispute arose because of the harvesting of the paddy crops in the agricultural land and from the deposition of both the parties, it appears that there had been a landed property dispute between both the parties which have been appreciated by the learned trial court in the impugned judgment. 11. In this background, the court proceeds to examine the disposition of witnesses examined on behalf of the prosecution. 12. At the outset, the deposition of the Doctor examined on behalf of the prosecution is taken into account in order to appreciate the conviction of the appellant u/s 325 of the IPC. P.W. 6 Dr. 11. In this background, the court proceeds to examine the disposition of witnesses examined on behalf of the prosecution. 12. At the outset, the deposition of the Doctor examined on behalf of the prosecution is taken into account in order to appreciate the conviction of the appellant u/s 325 of the IPC. P.W. 6 Dr. Abhay Kumar Yadav, who has been examined on behalf of the prosecution has stated that on 27.10.2002, he was posted at Referral Hospital, Madhupur as Medical Officer and on that date and at about 11 pm he had examined Badri Mahto (P.W.5) s/o Jhagru Mahto and has identified the mole mark on the right side of his nose. He further deposed that he had found following injuries on the person of P.W. 5 :- 1) ‘Lacerated wound of size 1 ½”x ½”x bone depth. Colour red and bleeding present over parietal area of scalp middle. For nature advised X-ray. Lateral wound caused by hard and blunt substance. 2) Lacerated wound of size 1”x ¼”x ¼” of colour red. Cloud present, over frontal area of scalp, for nature advised X-ray of scalp and the injuries caused by hard and blunt substance. The age of the injuries is within 24 hours. The doctor P.W. 6 opined that the assault was dangerous to life and the above two injuries are grievous in nature caused by hard and blunt substance. He has proved the injury report which was prepared by this witness and marked as Ext. 1 and 1/1. 13. Learned defence counsel has pointed out that the opinion of injury was given on the basis of the X-ray report, which has not been brought on record and this fact has not been appreciated by the learned trial court, and therefore such appreciation of injuries by the trial court in absence of X-ray reports is not tenable in the eyes of law. This Court does not find any force in the contentions raised on behalf of the learned counsel for the appellant because of the fact that the Doctor (P.W. 6), who was examined on behalf of the prosecution has categorically stated that although the X-ray reports have not been obtained by him, but, he had given the opinion of the injury i.e. Ext. 1 and Ext. 1 and Ext. 1/1 on the basis of the X-ray plates presented by the injured person and, therefore, the defence taken on behalf of the appellant is baseless and mete out . This Court does not find any infirmity in the findings of the learned trial court arrived at on the basis of the injuries’ reports and the opinion on the nature of the injuries as deposed by the Doctor and corroborated by the injuries reports vide Exts.-1 & 1/1 as discussed above. 14. Now in order to appreciate the evidences as to whether the injuries have been caused by the sole appellant namely Ganesh Mahto or not, this Court, first of all considers the testimonies of P.W. 5 Badri Mahto, who is the injured informant and in his deposition he categorically stated that this informant along with his family members were harvesting paddy crops when the accused appellant along with co-accused persons reached there and during the course of altercation Ganesh Mahto assaulted on his head twice by which he got injured and blood started oozing out and, therefore, the version of this witness that the injuries were inflicted on his head were found consistent with the deposition of the doctor (P.W.6) as evident from the testimonies of P.W. 6 in the foregoing paragraphs and, thus, the deposition of this witness has been substantiated by the Doctor (P.W. 6). 15. Further, this Court finds that the deposition of P.W. 1 Jhuna Devi, P.W. 2 Shaligram Mahto and P.W. 3 Rita Devi who were examined on behalf of the prosecution are the eye witnesses and have consistently and uniformly deposed that when all of them were present in the agricultural field for harvesting the paddy crops, the accused persons reached there and Ganesh Mahto started assaulting on the head of Badri Mahto by tangi and two blows of tangi were given, by which the head of P.W. 5 Badri Mahto, got injured and blood started oozing out and therefore, all the witnesses viz. P.Ws. 1, 2 and 3 had supported the version of P.W. 5 in a uniform manner. 16. Prayag Mahto (P.W.4), cousin, had also supported the case of the prosecution and stated that the head of the informant was injured and it was assaulted by Ganesh Mahto during the course of mar-pit between the brothers. Thus, it is found form the deposition of P.Ws. 16. Prayag Mahto (P.W.4), cousin, had also supported the case of the prosecution and stated that the head of the informant was injured and it was assaulted by Ganesh Mahto during the course of mar-pit between the brothers. Thus, it is found form the deposition of P.Ws. 1, 2, 3, 4 and 5 that the accused appellant had assaulted the injured P.W. 5 by tangi by which he (PW-5) had sustained the head injuries, which has been corroborated by the deposition of the Docter P.W. 6. 17. The Investigating Officer Sudisht Prasad Singh (P.W.7) has been examined and he has formally proved the place, date and time of occurrence, the formal FIR and fardbeyan and after completion of the investigation, the charge-sheet has been submitted. 18. On the other hand, the appellant has also adduced the evidences and brought on record some of the documents, in order to take the defence that the land was belonging to the appellant and therefore, the allegation of harvesting of paddy crops by the informant did not arise and in support of his contentions he has brought the following documents viz. Ext. A, Ext. B, Ext. C & C/1 and Ext. D and also the examination of the witnesses D.W. 1 and D.W. 2 and D.W. 3, but, all the oral and documentary evidences brought on the record by the defence do not vitiate the case of the prosecution to the effect that the sole appellant had gone to the place of occurrence and inflicted the injuries upon the informant (P.W. 5) by which he had sustained the injures on the head as it has categorically been deposed by all the witnesses viz. P.Ws. 1, 2, 3, 4 and 5 and supported by the doctor P.W.6 and the injury reports Ext. 1 and Ext. 1/1. 19. Having taken into consideration the aforesaid findings on the basis of evaluation of the evidences, it is well founded that the learned trial court has rightly appreciated the entire evidences and this Court does not find any infirmity in the impugned judgment of conviction under which the sole appellant was convicted for the offence punishable u/s 325 of the IPC. 20. 20. Accordingly this court upholds the judgment of conviction dated 01.06.2005 passed by the learned Additional Sessions Judge, F.T.C. No. IV, Deoghar in Sessions Case No. 44 of 2004, corresponding to Karon P.S. Case No. 88 of 2002, G.R. Case No. 505 of 2002, against the appellant. 21. So far as the sentenced imposed by the learned trial court is concerned, the learned defence counsel appearing for the appellant submitted that admittedly both the parties are cousin and the appellant has been suffering from mental agony and trauma of criminal prosecution for a long period of time since last 20 years i.e. from 2002 and there is nothing on record to show about his criminal history and, therefore, it is urged on behalf of the appellant that a lenient view may be taken. 22. Having taken into consideration the aforesaid mitigating factors for awarding the sentence, it is found that the sole appellant is the nephew of the informant and they are gotias (descendants of the common ancestor) and at the time of recording their deposition, the age of the appellant was 50 years old and over a period of time he must have attained the age of 70 years and thus the appellant has become very old over the efflux of time and there is nothing on record to show his criminal history. Therefore, no purpose would be served to send the appellant again in jail and it is just and fair to take a lenient view and instead of awarding further sentence of imprisonment, the purpose of justice would be served by awarding him a sentence of imprisonment already undergone by him and to impose sentence of fine by way of compensation in order to give to the victim/informant (PW-5). 23. As a result, the accused-appellant is awarded the sentence of fine to a sum of Rs. 5000/- (Rs. Five Thousand Only), by way of compensation in order to give it to the victim injured Badri Mahto (P.W.5). Since, the appellant is on bail and, therefore, a period of four months is given to him from today to make payment of fine of Rs. 5000/-(Rs. Five Thousand Only) by way of compensation in order to give it to the victim-injured Badri Mahto (P.W. 5). 24. In case of default of payment of fine amount of Rs. 5000/- (Rs. Since, the appellant is on bail and, therefore, a period of four months is given to him from today to make payment of fine of Rs. 5000/-(Rs. Five Thousand Only) by way of compensation in order to give it to the victim-injured Badri Mahto (P.W. 5). 24. In case of default of payment of fine amount of Rs. 5000/- (Rs. Five Thousand Only) by way compensation in order to give it to victim-injured Badri Mahto(P.W. 5) so awarded by this Court within the stipulated period of time, the appellant will undergo rigorous imprisonment for a period of 1 year (one year). The learned trial court is directed to ensure that the said fine amount is deposited within the stipulated period of time and if the same is not deposited by the appellant, he will serve the sentence as awarded in case of default of payment of fine so awarded. The learned trial court is further directed to take all necessary measures as per the provisions of law to ensure that the appellant serves the sentence of imprisonment in case of default of payment of fine. 25. The appellant may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. At the moment he deposits the fine amount, he (the appellant) shall be released forthwith on deposit of the said fine amount and he shall be discharged from the liabilities of bail bonds accordingly. The learned court below is also directed that on deposit of the said fine amount by the appellant, the notice shall be sent to the victim injured Badri Mahto P.W. 5 and on his appearance the said fine amount, if so deposited by the appellant, shall be disbursed to him. In case, if the said victim is not traceable or not available or not found at the given address, the same shall be disbursed to the close or near relatives or kith and kin of the said victim-injured Badri Mahto, (P.W. 5), as the concerned learned trial court may deem fit and proper. 26. Accordingly, the appeal is dismissed as above. 27. Let the copy of the judgment be sent to the learned court below along with the Lower Court Records to do needful and compliance in this regard.