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2022 DIGILAW 1155 (JHR)

Pratham Mallick v. State of Jharkhand

2022-09-13

NAVNEET KUMAR

body2022
JUDGMENT : 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 06.07.2006 passed by the learned Additional Sessions Judge, F.T.C. No. 7th, Dhanbad in S.T. No. 363/2001, in connection with Baliapur P.S. Case No. 25 of 2000, corresponding to G.R. Case No. 1063 of 2000 at Dhanbad, Jharkhand, whereby and where under all the appellants (including two deceased appellants) have been convicted for the offence punishable under sections 148 and 324/149 of Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and they were sentenced to undergo Rigorous Imprisonment (hereinafter referred to as R.I.) for two years under section 148 of IPC and they were further sentenced to undergo R.I. for two years for the offence punishable u/s 324/149 of IPC and it was further directed that the sentence awarded to the appellants shall run concurrently. 2. From the perusal of the service report, it appears that out of 16 appellants two appellants i.e. appellant No. 12- Vijay Mallick and the appellant No. 15 Sagar Mallick have died and a report to that effect has been received from the court of District & Addl. Sessions Judge-IX, In charge-A.D.J. F.T.C. -VIIth Dhanbad. From the perusal of the said report which kept at flag-X, it appears that the appellant No. 12- Vijay Mallick has died on 21.08.2021 and the photo copy of the death certificate along with the report has also been annexed which has been duly issued from the competent person of the State Government. The appellant No. 15 Sagar Mallick has also died about five years ago and the same has been reported by his son Kishan Mallick on 03.06.2022 to the concerned police station of Baliapur Police Station in the District of Dhanbad. Learned counsel appearing on behalf of the appellants has submitted that no close relative has come forward to continue with this appeal on behalf of the appellant No. 12- Vijay Mallick and the appellant No. 15 – Sagar Mallick and therefore, it is urged on behalf of both the dead appellants, let this appeal be abated. Learned Addl. P.P. for the State submitted that in view of the submission let this appeal be abated. Having taken into consideration the submission of learned counsel appearing on behalf of the appellants and learned Addl. Learned Addl. P.P. for the State submitted that in view of the submission let this appeal be abated. Having taken into consideration the submission of learned counsel appearing on behalf of the appellants and learned Addl. P.P., as no close relative has come forward to continue with this appeal on behalf of the deceased appellants namely appellant No.12- Vijay Mallick and the appellant No. 15 Sagar Mallick, this appeal gets abated with respect of the deceased appellant No. 12- Vijay Mallick and the appellant No. 15 Sagar Mallick. Let the name of the deceased appellants be deleted from the cause title of the memo of appeal. Now this appeal will be heard against the rest of the appellants and they are re-numbered. 3. The prosecution story arose in the wake of written report of the informant P.W. 4- Madan Mahali addressed to the Officer I/c Baliapur P.S. in the district of Dhanbad on 16.04.2020. Briefly stating the allegation as set out in the said written report by the informant are as under:- The informant P.W. 4 Madan Mahali stated that the informant and other persons having title of Mahali were living after constructing their house in plot nos. 46, area 9 acres and five decimals in village Sarisa Kundi, P.S. Baliapur District Dhanbad. The cousin brother of informant namely Jira Kumar Mahali, son of Haradhan Mahali constructed his house in aforesaid plot. At about 4 p.m. on 16.04.2000 all the accused persons namely Rabi Malliick, Dharmu Mallick, Ghuttu Mallick, Manik Mallick, Sikant Mallick, Sanjeet Mallick, Sagar Mallick, Habu Mallick, Kishan Mallick, Ramesh Mallick, Shubhash Mallick, Chhula Mallick, Vijay Mallick, Ratan Mallick, Pratham Mallick, Pela Ram Mallick) being members of unlawful assembly and armed with lathi, spear and pharsa came over there, and started destructing the house of brother of informant whose construction was going on. Thereupon informant Madan Mahali and Krishna Mahali protested and then above named accused persons assaulted Madan Mahali and Krishna Mahali and at that time accused Manik Mallick, assaulted informant by sharp edged weapon of iron resulting into injuries near right eye and head of informant. Accused Ghutu Mallick also assaulted Krishna Mahali by means of sharp edged weapon resulting into injuries on the head of Krishna Mahali. After hearing the noise the nearby neighbours of informant namely Vijay Mahali and others came there and rescued the informant and Krishna Mahali from accused. Accused Ghutu Mallick also assaulted Krishna Mahali by means of sharp edged weapon resulting into injuries on the head of Krishna Mahali. After hearing the noise the nearby neighbours of informant namely Vijay Mahali and others came there and rescued the informant and Krishna Mahali from accused. The accused persons committed the occurrence due to previous enmity from informant and Krishna Mahali and due to previous litigation, the accused persons wanted to dispossess the brother of informant from aforesaid land. On the basis of written application of informant Madan Mahali addressed to officer In-charge of Baliapur P.S. regarding the occurrence FIR u/s 147, 148, 149, 323, 324, 307, 426 of IPC was lodged against all above named accused persons as Baliapur P.S. Case No. 25/2000. After investigation the I.O. of the case submitted charge sheet u/s 147, 148, 149, 323, 324, 307 & 426 of I.P.C. against all above named accused persons and accordingly cognizance for aforesaid offences was taken by Ld. C.J.M., Dhanbad against all the accused. Thereafter, the case was committed in the Court of Session. After commitment the case record was transferred in the Court of Ld. Addl. Sessions Judge, 10th, Dhanbad and thereafter the case record was transferred in court of learned Additional Sessions Judge, F.T.C. No. 7th, Dhanbad for trial. Charges u/s 147, 148, 149, 307/149, 324/149 and 324 of IPC were framed against all above named accused persons on 21.08.2002. Charges read over and explained to accused in Hindi. Accused pleaded not guilty. 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. Atanu Banerjee, the learned counsel for the appellant, Mr. Shekhar Pd. Sinha, learned counsel for the informant and Mr. Jitendra Pandey, learned Addl. P.P. for the State. Arguments advanced on behalf of the appellants 6. Assailing the impugned judgment of conviction and order of sentence it is submitted on behalf of the appellants that the impugned judgment of conviction and order of sentence is bad in law as the learned court below did not appreciate the evidences adduced on behalf of the prosecution in totality and also admittedly both the parties are on inimical terms and therefore due to non-examination of I.O. caused serious prejudice to the defence of the appellants. Neither the time, place and date of the occurrence have been formally proved nor the nature of weapons which are alleged to have been used in the commission of the offence by the appellants were recovered. Further, the attention of the witnesses have been drawn with their earlier statement recorded u/s 161 of Cr.P.C. particularly of the two injured witnesses P.W. 3 and P.W. 4, but, due to non-examination of the I.O. their contradiction or corroboration could not brought forth on record and as such it has caused prejudice to the defence of the appellants. It has been submitted that the learned court below has failed to take into consideration that PW-1 Jira Kuamr Mahali admitted that he had lodged a case under section 145 of Cr.P.C. in which order has been passed and he further stated that he did not know in whose name the khatiyan has been prepared. Learned counsel for the appellants has further submitted that the learned court below has failed to take into consideration that PW-1 demolished the case as he stated in his deposition that when the accused persons reached there he was alone. He further submitted that the learned court below has failed to take into consideration that all the witnesses are interested witness and there is no independent corroboration and it is admitted that the civil cases are pending between the parties so false implication cannot be ruled out. Further it has also been pointed out that the learned trial court has failed to give any finding on the point of unlawful assembly constituted by all the appellants where there is a categorical evidences that only two of appellants namely appellant No. 3-Manik Mallick and appellant No. 11-Chhutu Mallick @ Ghutu Mallick had inflicted injuries upon P.W. 4 and P.W. 3 and no any overt act has been whispered against anyone of the appellants and therefore the conviction of the appellants for the offence punishable u/s 148 of IPC is bad in law and also the conviction u/s 324 of IPC with the aid of section 149 of IPC is bad in law because it was not a case where the prosecution has been able to prove the constitution of unlawful assembly by the appellants 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 assisted by the learned counsel appearing on behalf of the informant vehemently opposed the contentions raised on behalf of the appellants and submitted that all the witnesses have consistently and uniformly stated that all the appellants came to the place of occurrence and inflicted injuries upon P.W. 3 and P.W. 4 and the injuries reports have been proved by Dr. P.W. 6 which have been marked as Ext. 2 and Ext. 3 and the learned trial court has rightly appreciated the version of the witnesses examined on behalf of the prosecution and also the injury reports Ext. 2 and Ext. 3 and convicted the appellants for the offence punishable u/s 148 and 324/149 of IPC and there is no legal point to interfere 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 examine altogether seven witnesses as under: 1) P.W. 1 Jira Kumar Mahali 2) P.W. 2 Viajy Kumar Mahali 3) P.W. 3 Krishna Mahali 4) P.W. 4 Madan Mahali (informant) 5) P.W. 5 Rajesh Mahali 6) P.W. 6 Dr. P.P. Singh (Doctor) 7) P.W. 7 Rabi Mahali Apart from the oral evidences some documentary evidences have also been adduced on behalf of the prosecution, which are- Ext.-1- written report of informant addressed to Officer In-charge of Baliapur P.S., Ext.-2- the injury report of injured informant Madan Mahali (PW-4) and Ext. -3- the injury report of injured Krishna Mahali (PW-3). It is admitted case of the prosecution that there had been a landed property dispute between both the parties and, therefore, they are on inimical terms. Further, it is also found that only two persons have been injured namely P.W. 4 Madan Mahali and P.W. 3 Krishna Mahali. Their injury reports have been proved by P.W. 6 Dr. P.P. Singh. In this back ground, at first the deposition of the doctor P.W. 6 is taken into account, in order to ascertain, the nature of the injuries caused by the accused appellants upon the injured persons P.W. 3 and P.W. 4. 10. P.W. 6 Dr. Their injury reports have been proved by P.W. 6 Dr. P.P. Singh. In this back ground, at first the deposition of the doctor P.W. 6 is taken into account, in order to ascertain, the nature of the injuries caused by the accused appellants upon the injured persons P.W. 3 and P.W. 4. 10. P.W. 6 Dr. P.P. Singh deposed that on 16.04.2000 he was posted as Medical Officer at Baliapur Primary Health Centre. On that day he examined Madan Mahali (informant) and found the following injuries on his persons:- i. Incised wound over the scalp centrally located which was in size 11/2“X bone deep. ii. Lacerated wound over side of right eye 1” x 1/8”. Both the injuries were caused by sharp cutting substance, and the injuries were simple in nature. This witness has proved injury report of Mandan Mahali (informant) which is Ext. 2. This witness has further stated that on the same day he also examined injured Krishna Mahali and found the following injuries on his person:- i. Incised wound over scalp. Centrally located 1”x bone deep, which was caused by sharp cutting substance. Nature of injury was simple. This witness has further proved the injury report of Krishna Mahali which is Ext. 3. 11. From the perusal of the injury reports Ext. 2 and Ext. 3 and version of the doctor P.W. 6, it is found that the learned trial court has rightly appreciated the injury as alleged to have been inflicted upon the injured persons P.W. 3 and P.W. 4 which are found to be simple in nature and caused by sharp cutting weapon and as such the nature of the injures are falling in line with the case of the prosecution as presented in the FIR i.e. Ext. 1 i.e. written report of informant P.W. 4. It is also found that only 2 injuries inflicted upon the injured persons which have been caused by the appellant No. 3 Manik Mallick and appellant No. 11- Chhutu Mallick @ Ghutu Mallick, but, all the appellants have reached to the place of occurrence and constituted unlawful assembly and it has been consistently deposed by all the witnesses examined on behalf of the prosecution. 12. 12. As a matter of fact P.W. 1 and P.W. 7 are the cousin brother of the informant and their presence at the place of occurrence was natural and, therefore, these persons cannot be discarded only on the basis that they are interested witnesses. Their enmity is an admitted fact and it is well settled principle of law that the enmity is a double edged weapon which cuts both the ways. Therefore, only the caution and careful scrutiny of the testimonies of witnesses are required and ipso–facto their testimonies cannot be discarded if otherwise convincing and truthful. 13. P.W. 4 Madan Mahali was the informant of this case and also the injured person and categorically supported the case of the prosecution and stated that the appellants armed with sword, sabal, axe and lathi reached to the place of occurrence and demolished the house of Jira Mahali and also the belongings kept in kiosk of Jira Mahali. On protest of this witness the appellants Manik Mallick and Chhutu Mallick @ Ghutu Mallick had assaulted the P.W. 3 and P.W. 4 by which they sustained injuries and, therefore, the version of this witness as disclosed in the written report as Ext. 1 is fully corroborated even if the I.O. in this case has not been examined. It did not cause prejudice to the defence of the appellants for the purpose of contradiction or corroboration inasmuch as the version of this eyewitness injured P.W.4 is truthful and no deviation is found in his depositions from that of as disclosed in the FIR. In para 10, this witness has stated that he had got only one blow from the sword and when he fell down then accused appellant Manik Mallick assaulted on his right eye. Further, in para 11 he has stated that he slanted his head to protect his eye but he received cut to the right side. 14. In para 10, this witness has stated that he had got only one blow from the sword and when he fell down then accused appellant Manik Mallick assaulted on his right eye. Further, in para 11 he has stated that he slanted his head to protect his eye but he received cut to the right side. 14. The another injured person P.W. 3 Krishna Mahali deposed that the offence had taken place on 16.04.2000 at about 4 pm in the evening and when he was present in his house, he heard a hulla of assault and then he reached to the place of occurrence and saw the informant P.W. 4 was lying on the ground after sustaining the injury and this witnesses came to rescue the informant P.W. 4 and then the accused appellant Chuttu Mallick had assaulted him (PW-3) by which he also fell down and there after he was brought to the hospital. And as such this witness P.W. 3 has also supported the case of the prosecution and no contradiction is found in the versions of P.W. 4 and P.W. 3 vis-à-vis in the written report of the FIR and thus the case of the prosecution is also substantiated. 15. P.W. 1 Jira Kumar Mahali is the cousin brother of the informant and he had fully supported the case of the prosecution. He stated that the occurrence took place on 16.04.2000 at about 4 p.m. in the evening and while he was present in the kiosk situated in front of his under construction house, all the accused persons came raising the slogan of Jai Bajrangbali and demolished the wall of his under constructed house and that the informant Madan Mahali was there and protested, then the accused appellant Manik Mallick have assaulted by sword upon the Madan Mahali (P.W. 4 the informant) from the back side resulting into injury and at that time Krishna Mahali came there, then accused Ghutu Mallick gave sword blow upon P.W. 3 Krishna Mahali, resulting into injury on head. Thus, the deposition of this witness has also supported the case of the prosecution in totality without any inconsistency and incoherence. This witness P.W. 1 was also victim whose house was demolished by the accused appellants. 16. Thus, the deposition of this witness has also supported the case of the prosecution in totality without any inconsistency and incoherence. This witness P.W. 1 was also victim whose house was demolished by the accused appellants. 16. P.W. 2 Vijay Kumar Mahali was the independent witness and he categorically stated about the case and supported the case of the prosecution and disclosed the name of all the accused appellants that they had come along with the lethal weapons holding in their hands and P.W. 1 Jira Kumar Mahali was in his under constructed house. The accused appellants started demolishing the house and thereafter a quarrel took place by which the accused appellants inflicted injury upon P.W. 3 and P.W. 4. This witness has also asserted in his deposition that accused Manick Mallick gave sword blow on the head of Madan Mahali resulting into injuries and after sustaining injury Madan Mahali became unconscious and the blood came out from the injuries. This witness has further stated that thereafter Krishna Mahali came and asked from the accused about the assault and then the accused Ghutu Mallick assaulted upon Krishna Mahali resulting into injuries on head. Thus, the case of the prosecution has been thoroughly supported by this witnesses also. 17. P.W. 5 Rajesh Mahali has also supported the case of the prosecution stating that the accused appellants have reached to the place of occurrence and demolished the under construction house of the P.W. 1 and the injured persons P.W. 3 and P.W. 4 reached at the place of occurrence and when they interfered, they were also assaulted by the accused appellants particularly by the accused appellant No. 3 Manik Mallick and appellant No. 11- Chhutu Mallick @ Ghutu Mallick. 18. P.W. 7 Rabi Mahali had also supported the case of prosecution stating that the accused appellants had reached to the place of occurrence and demolished the under constructed house of the P.W. 1 Jira Mahali and they had also assaulted P.W. 3 and P.W. 4. He had also stated that accused Manick Mallick gave sword blow at the head of Madan Mahali and after sustaining injury the informant Madan Mahali fell down, then at that time Krishna Mahali came there and the accused Ghutu Mallick had assaulted by sword upon Krishna Mahali. 19. He had also stated that accused Manick Mallick gave sword blow at the head of Madan Mahali and after sustaining injury the informant Madan Mahali fell down, then at that time Krishna Mahali came there and the accused Ghutu Mallick had assaulted by sword upon Krishna Mahali. 19. Having taken into consideration the evaluation of the testimonies of the witnesses examined on behalf of the prosecution it is well founded that the learned trial court has rightly appreciated the depositions of the witnesses examined on behalf of the prosecution and they had consistently and uniformly supported the case of the prosecution and all the accused appellants holding weapons in their hands reached to the place of occurrence and demolished the under constructed house of P.W. 1 and when the injured persons P.W. 3 and P.W. 4 reached there to rescue at the place of occurrence then they were assaulted by the members of unlawful assembly particularly by P.W. 3 and P.W. 4 and further it has also been found that the learned trial court has appreciated the testimonies of the witnesses in the right perspective and although the charges were framed inter alia u/s 307 of IPC but the appellants have been acquitted for the offence punishable u/s 307/149 of IPC and the learned trial court rightly found them guilty under sections 148, 324 /149 of IPC and accordingly, they were convicted therein. This Court does not find error in judgment of conviction passed by the learned trial court. 20. In the backdrop, this Court upholds the Judgment of conviction dated 06.07.2006 passed by the learned Additional Sessions Judge, F.T.C. No. 7th, Dhanbad in S.T. No. 363/2001, in connection with Baliapur P.S. Case No. 25 of 2000, corresponding to G.R. Case No. 1063 of 2000 at Dhanbad. 21. So far as the sentence is concerned the learned defence counsel submitted that admittedly both the parties were on inimical terms and the occurrence is said to have taken place on 16.04.2000 about 22 years back and these appellants were suffering rigor of criminal prosecution for a long period of time and there is nothing on the record to show their criminal antecedents. It is also found form the evidences emanating from the depositions of the witnesses that at the time of time of occurrence the motive of the accused appellants were to destroy the house of the P.W. 1 Jira Kumar Mahali and the appellants had damaged his house and they had also assaulted the two persons P.W. 3 Krishna Mahali and P.W. 4 Madan Mahali who sustained injuries. 22. In this view of the matter, it is found that no useful purpose would be served to send them again in jail and instead of awarding the sentence of imprisonment, the purpose of justice would be meted out if the appellants were sentenced to fine imposed by way of compensation in order to compensate the injured persons P.W. 3 Krishna Mahali and P.W. 4 Madan Mahaali and also to the witness PW. 1 Jira Kumar Mahli whose house was demolished. Accordingly order of sentenced passed by the learned court below under both the counts u/ss 148 and 324/149 of IPC against all the appellants is set aside and this Court alters the sentence by only imposing sentence of fine collectively upon all the appellants under all the heads/counts(u/ss 148 and 324/149 of IPC) by way of compensation to a sum of Rs. 15,000 (Rupees Fifteen Thousand Only) to be given to P.W. 1 Jira Kumar Mahali, P.W. 3 Krishna Mahali and P.W. 4 Madan Mahali in equal proportion to a sum of Rs. 5000/-(Rupees Five Thousand Only) to each of the victims, namely, P.W. 1 Jira Kumar Mahali, P.W. 3 Krishna Mahali and P.W. 4 Madan Mahali. Since the appellants are on bail they are given four months’ time from the date of this judgment to deposit the fine amount by way of compensation as awarded to them. 23. In case of default of payment of fine amount of Rs. 15,000/- (Rs. Fifteen Thousand Only) by way compensation in order to give it to victims so awarded by this Court within the stipulated period of time, each of the appellants shall undergo rigorous imprisonment for a period of 1 year (one year). 23. In case of default of payment of fine amount of Rs. 15,000/- (Rs. Fifteen Thousand Only) by way compensation in order to give it to victims so awarded by this Court within the stipulated period of time, each of the appellants shall 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 appellants, they will serve the sentence as awarded in case of default of payment of fine so awarded, and the learned trial court by taking all necessary measures as per the provisions of law to ensure that each of the appellants serves the sentence of imprisonment in case of default of payment of fine. 24. The appellants may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. At the moment they deposit the fine amount, they (the appellants) shall be released forthwith on deposit of the said fine amount and they 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 appellants, the notices shall be sent to the victims injured, P.W. 3 Krishna Mahali , P.W. 4 Madan Mahali and victim P.W.1 Jira Kuamr Mahali in order to disburse the fine amount in equal proportion of Rs.5,000/(Rupees Five Thousand) to each of P.W. 3 Krishna Mahali, P.W. 4 Madan Mahali (informant) and P.W.1 Jira Kumar Mahali and on their appearance the said fine amount, if so deposited by the appellants, shall be disbursed to them accordingly. In case, if either of the said victims P.Ws. 1 Jira Kumar Mahali or PW-3 Krishna Mahali or PW-4 Madan Mahali are not traceable or not available or not found at the given address, the same shall be disbursed either to the close or near relatives or kith and kin of the said victims, as the concerned learned trial court may deem fit and proper. 25. Accordingly, the appeal is dismissed as above. 26. Let the copy of the judgment be sent to the learned court below along with the Lower Court Records to do needful and for its compliance in this regard.