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2022 DIGILAW 1425 (JHR)

Ajit Kumar Mahto v. State of Jharkhand

2022-12-20

NAVNEET KUMAR

body2022
JUDGMENT : 1. This appeal is directed against the judgment of conviction dated 23.07.2005 and order of sentence dated 26.07.2005 passed by learned Additional Judicial Commissioner 1st, Khunti, Ranchi in Sessions Trial No. 194 of 2002 in connection with Bundu P.S. Case No. 68 of 2001, corresponding to G.R. No. 500 of 2001, Khunti, Ranchi, Jharkhand, whereby and where under the sole appellant has been found guilty u/s 307 and 456 of IPC and under section 3 of the Prevention of Witch (Daain) Practices Act, 1999 and accordingly the appellant was sentenced to undergo RI for five years u/s 307 of IPC, RI for three years u/s 456 of IPC and three months for the offence punishable u/s 3 of the Prevention of Witch (Daain) Practices Act (hereinafter referred as the Act, 1999), however it was ordered that all the sentences would run concurrently. 2. Briefly stated the allegations as set out in written report dated 05.10.2001 addressed to the officer In-charge Bundu Police Station, Ranchi by the informant Mandodari Devi - P.W. 5 was as under:- On 04.10.2001 at 7 p.m. she was cooking meal inside her house, at the same time accused Ajit Kumar Mahto entered inside the house having malice intention and wanted to outrage her modesty, but the informant protested, thereafter the accused alleged her that she was a witch and he started assaulting her with intention to kill her. She raised alarm. Her children also came out in the courtyard from the room and started crying, her Devar Suresh Mahto and his wife Deomani Devi, Gita Kumari, Bidhayadhar Mahto rushed there, then the accused Ajit Mahto fled away by giving threats and hurling abuses at her. Further, it has been mentioned in the written report of the informant that having sustained injuries on her head she became unconscious. It has also been mentioned that accused Ajit Mahto always used to allege the informant that she was a witch and tortured her. Further, it has been mentioned in the written report of the informant that having sustained injuries on her head she became unconscious. It has also been mentioned that accused Ajit Mahto always used to allege the informant that she was a witch and tortured her. On the basis of the said written report of the informant, the police registered Bundu P.S. Case No. 68 of 2001 against accused Ajit Kumar Mahto for the offence under sections 341, 323, 325, 307, 354, and 458 of IPC and 3/4 of the Prevention of Witch (Daain) Practices Act, 1999 and after investigation the police submitted charge sheet against him for the offences under sections 341, 323, 307, 354 and 456 of IPC and under section 3/4 of the Prevention of Witch (Daain) Practices Act, 1999, on the basis of which cognizance was taken and the case was committed to the court of sessions, thereafter, this record came to the file of Additional Judicial Commissioner 1st Khunti, Ranchi on 01.10.2002 at the stage of appearance of the accused by the order of the Judicial Commissioner, Ranchi. On 28.05.2003 charges under section 307, 354, 456 of IPC and section 3/4 of Prevention of Witch (Daain) Practices Act, 1999 were framed by the then 1st A.J.C., Khunti against accused Ajit Kumar Mahto to which he denied and pleaded not guilty and claimed to be tried by the court. 3. 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. 4. Heard Mr. Ashok Kr. Pandey, the learned counsel for the appellant and Mrs. Vandana Bharti, the learned Addl. P.P. for the State. Arguments advanced on behalf of the appellant 5. Assailing the impugned judgment of conviction and order of sentence, the learned counsel appearing on behalf of the sole appellant submitted that the learned trial court did not appreciate the evidences adduced on behalf of the prosecution in a holistic manner and found the appellant guilty for the offence punishable inter alia 307 of IPC which is not tenable in the eyes of law in view of the fact that it is evident form the injury report Ext. 2 that the injuries are simple in nature and it has been caused by sharp cutting weapon. 2 that the injuries are simple in nature and it has been caused by sharp cutting weapon. Further, it has also been pointed out that there is a major contradiction with respect to the weapon used in inflicting injuries by the appellant on the victim P.W. 5 and the prosecution witnesses have consistently deposed that hammer was used which is normally hard and blunt substance whereas the Doctor P.W. 10 opined that the injury was caused by sharp cutting weapon and that too simple in nature and therefore, neither the intention nor the knowledge is inferred for committing murder of the victim P.W. 5 and therefore no offence of attempt to commit murder within the meaning of section 307 of IPC is proved. Further, it has also been pointed out that the place of occurrence is not convincingly proved because of the inconsistency in the depositions of the victim P.W. 5 on one hand, and P.W. 8 on the other hand, whereas the I.O. P.W. 9 stated that the alleged occurrence had taken place at two places one is near the well and another is the house of the victim in her room. It has further been submitted that the I.O. visited the place of occurrence but he neither found the blood stain in the room nor he seized any blood stain clothes from her as such in this view of the matter the prosecution case become doubtful. It has further been submitted on behalf of the appellant that the informant might have fallen and sustained injury but due to some personal grudge and enmity the appellant was implicated in this case 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 6. Arguments advanced on behalf of the State 6. On the other hand, the learned Addl.P.P. appearing for the State opposes the contentions raised on behalf of the appellant and stated that victim P.W. 5, son P.W. 4 and daughter P.W. 3 consistently supported the case of the prosecution that the victim P.W. 5 was assaulted by the appellant by branding her as a witch and therefore the learned trial court has rightly appreciated the evidences and the witnesses examined on behalf of the prosecution including P.W. 5, P.W. 3, P.W. 4 and other witnesses including the doctor P.W. 10, I.O. P.W. 9 and therefore this appeal is fit to be dismissed being devoid of merit. Further, it has also been pointed out on behalf of the state that as per the prosecution story the weapon which has been used in inflicting injuries to the victim P.W.5 is hammer which is of both nature including the hard and blunt substance as well as the sharp cutting weapons, therefore, the defence taken on behalf of the appellant that hammer was used which is normally hard and blunt substance whereas the Doctor P.W. 10 opined that the injury was caused by sharp cutting weapon is not inconsistent with each other at all because the hammer is categorized as having dual nature including hard and blunt substance as sell as sharp cutting weapon and therefore, this appeal is fit to be dismissed being devoid of merit. Appraisal and Findings 7. Having heard the parties, perused the record of this case including the Lower Court Records. 8. In order to substantiate its case, the prosecution has been able to examine altogether 10 witnesses who are as under: 1. P.W.1- Puran Das, 2. P.W.2- Birendra Kr. Mahto, 3. P.W.3- Mamta Kumari (daughter of the informant), 4. P.W.4- Nirmal Mahto (son of the informant), 5. P.W.5- Mandodari Devi-Informant, 6. P.W.6- Deomoni Devi, 7. P.W.7- Geeta Devi, 8. P.W.8- Suresh Mahto, 9. P.W.9- Krishna Kr. Mahto (I.O.), 10. P.W. 10- Dr. Pankaj Kr. Verma. Apart from oral evidence, some documentary evidence have also adduced on behalf of the prosecution, which are- 1. Ext.-A- Fardbeyan; 2. Ext. 1- signature on formal FIR of B.K. Singh; 3. Ext.2 – photo copy of injury report 9. P.W.7- Geeta Devi, 8. P.W.8- Suresh Mahto, 9. P.W.9- Krishna Kr. Mahto (I.O.), 10. P.W. 10- Dr. Pankaj Kr. Verma. Apart from oral evidence, some documentary evidence have also adduced on behalf of the prosecution, which are- 1. Ext.-A- Fardbeyan; 2. Ext. 1- signature on formal FIR of B.K. Singh; 3. Ext.2 – photo copy of injury report 9. P.W. 5- Mandodari Devi, the victim has supported the case of the prosecution and deposed that the appellant had entered into her house and assaulted her on head with Hutasi, (an instrument used to break the boulder) and she was branded as a witch by the appellant. She has further deposed that when she raised alarm her daughter namely P.W. 3 Mamta Kumari and son P.W. 4 Nirmal Mahto came out form the room and started crying and screaming upon which the other witnesses also came to the place of occurrence namely Suresh Chandra Mahto and devrani - Deomani Devi then the accused appellant fled away from the place of occurrence and she has also identified the accused in the dock. In the cross-examination nothing has come out to disbelieve her version with respect to the fact that the accused appellant had entered into her house and after entering into her house, the appellant had inflicted injury upon her head. In para 3 of her deposition she had stated that after being injured she fell down and lost her consciousness for some time, her Dever and Devarani had rushed to spot at the time of her unconsciousness and her wounds were bandaged in her house and at that time also she had regained her conscious, blood had fallen on her cloth and also on the ground. 10. P.W.1- Puran Das and P.W.2- Birendra Kr. Mahto examined on behalf of the prosecution who have stated uniformally that there had been a quarrel between the victim informant Mandodari Devi and the accused appellant-Ajit Kumar, but they have not seen the quarrel between them from their own eyes but both have supported the case of the prosecution to the extent that there had been quarrel between the victim and appellant under which the victim sustained injuries. 11. 11. P.W.3- Mamta Kumari, is the daughter of the informant, and at the time of recording the deposition she was eleven years of age and she has fully supported the case of the prosecution as narrated in the FIR. She had deposed that about one year and eight months ago at about 7 p.m. she along with her brother Nirmal was reading in the house in the lamp-light, her mother was cooking meal, then accused appellant Ajit Mahto came with holding Hudasi (hammer) and inflicted injuries on head and forehead of her mother with that hammer alleging her to be witch, the injuries of her mother were bleeding. She further stated that she and her brother started crying, her Uncle Suresh Mahato and Aunt Deomoni Devi rushed there but the accused appellant fled away and her uncle and aunt bandaged the injuries and her mother remained in the house for the night. This witness identified the accused in the dock. In para 3 she had deposed that they heard the utterance of Daain and they also heard her mother crying to rescue. Further she said in para 3 that when they raised alarm, her uncle and aunt came from west side, then Ajit Mahto fled to the north side. No discrepancy is found in her deposition to the extent that the appellant had entered into her mother house and inflicted injuries upon her mother by hammer. 12. Similarly P.W.4- Nirmal Mahto, who is another eye witness and son of the victim present at the time of the alleged occurrence, has also supported the case of the prosecution stating that the appellant had entered into his house when her mother was cooking meal and he had inflicted injury on the head of her mother. He had also supported the case that the appellant used to abuse her mother as a witch. In para 3 this witness had stated that after hearing the noise of his mother ‘Bachao-Bachao’ he went there and saw his mother was injured. Upon asking the query from court he had answered that he had seen his mother being assaulted by the appellant. In the cross examination no contradiction or inconsistency found to disbelieve the version of this witness. Upon asking the query from court he had answered that he had seen his mother being assaulted by the appellant. In the cross examination no contradiction or inconsistency found to disbelieve the version of this witness. Both the PW-3 and PW-4 had denied the suggestion that her mother had gone to well to fetch water and due to darkness she slipped and fell down and sustained the injuries. 13. P.W. 6 Deomoni Devi - devrani (sister-in-law) of the victim who is said to have reached at the place of occurrence after hearing the alarm and scream of the children of the victim when the appellant had assaulted their mother and she saw that there was a bleeding injury from the injured who was her jethani (P.W. 5) who was widow and she further deposed that she wrapped her with cloth and her husband also reached there then the victim disclosed to this witness that the appellant has assaulted her branding her as a witch and thus the P.W. 6 also supported the case of the prosecution. 14. P.W. 7 Geeta Devi deposed that about one year and eight month ago on Thursady at 7 p.m. she had heard noise in the morning when Mandodari Devi was going to Bundu. She (PW-7) saw that cloth of Mandodari Devi was soaked with blood. Other day her (victim) children came to her house and disclosed that Ajit had assaulted their mother alleging her to be a witch. 15. Similarly P.W. 8 Suresh Mahto is also a FIR named witness who reached to the place of occurrence after hearing the screaming sound of the children and also of the victim and he was told by the victim that the appellant had assaulted her by branding her as a witch. He further stated that the victim P.W.5 Mandodari Devi disclosed that the appellant inflicted injury upon her by hammer alleging her to be a witch. P.W. 8 categorically stated that there were two bleeding injuries on the head of Mandodari Devi. He had also said that he had seen Ajit Mahto running away from the house of Mandodari Devi. 16. He further stated that the victim P.W.5 Mandodari Devi disclosed that the appellant inflicted injury upon her by hammer alleging her to be a witch. P.W. 8 categorically stated that there were two bleeding injuries on the head of Mandodari Devi. He had also said that he had seen Ajit Mahto running away from the house of Mandodari Devi. 16. The learned counsel appearing for the appellant has taken the plea that this witness has stated that the place of occurrence is a well, as the informant has stated that the place of occurrence is in the room but the I.O. examined on behalf of the prosecution has clarified the place of occurrence and he visited the places of occurrence and categorically submitted in para 3 that there were two places of occurrence one at the well and another at the room and such no discrepancy is found. The case of the prosecution cannot be disbelieved that both the places occurrence have not been narrated and disclosed in the FIR. It is well settled principal of law that the FIR is not an encyclopedia of entire occurrence. 17. P.W.9- Krishna Kr. Mahto, is the I.O. and he has proved the formal FIR and the written report addressed to the Officer In-charge of Bundu Police Station which has been marked as Ext.1. He has inspected the place of occurrence and recorded the depositions of the witnesses examined on behalf of the prosecution and after completion of the investigation submitted the charge sheet. He has elaborately narrated that there are two places of occurrence first is well situated in the back portion of the informant’s house where it was alleged that abuses were hurled and the other place of occurrence is the house of the informant facing to the east consisting of one room and one Varandah in which house the assault was alleged to have taken place. And thus no discrepancy is found regarding the place of occurrence. 18. P.W. 10- Dr. Pankaj Kr. Verma, the doctor, has been examined who medically examined the injured P.W.5 on 05.10.2001 and found the following injuries:- i. Incised wound 1”x1/4”x1/4” over left side of forehead. ii. Incised wound 2”x1/4”x1/4” over left side of scalp. The injuries caused by sharp cutting weapon, simple in nature. 18. P.W. 10- Dr. Pankaj Kr. Verma, the doctor, has been examined who medically examined the injured P.W.5 on 05.10.2001 and found the following injuries:- i. Incised wound 1”x1/4”x1/4” over left side of forehead. ii. Incised wound 2”x1/4”x1/4” over left side of scalp. The injuries caused by sharp cutting weapon, simple in nature. He has proved the injury report Ext.2 in his pen and signature which is the photo-state of the original report and he said that the original copy was handed over to the police at that time. 19. Learned counsel for the appellant has strongly contended that the injuries which are alleged to be inflicted by the appellant upon the victim (P.W. 5) are simple in nature and as such no offence under section 307 of IPC is corroborated in absence of any intention or knowledge to cause murder of the victim. 20. It is found from the injury report Ext.-2 that there are only two injuries, one injury over the left side of the scalp and second is over the left side of forehead and both the injuries are simple in nature. The I.O. has failed to seize the weapon used in the alleged assault under which injuries were inflicted and nor any material exhibits such as blood stained clothes, or blood stained soil or the alleged hammer have been brought on record as Exhibits and as such the conviction and guilt of the accused appellant for the offence punishable u/s 307 of IPC is not corroborated either from the nature, manner and mode of the injuries or from the versions or depositions of anyone of the witnesses and hence this court is unable to infer the intention and knowledge of the appellant to kill the informant. Therefore, the offence of attempt to kill the informant is not substantiated. This Court having gone through the depositions of the witnesses particularly the Ext. 2 the medical examination report of the victim and version of the P.W. 10 the doctor, I find force in the contentions raised on behalf of the defence that it is well settled principles of law in order to substantiate the offence u/s 307 of IPC the intention and knowledge must be there to kill the victim although it is an offence u/s 307 of IPC which is attempt to murder. At the outset from the nature of the injuries, it is well founded that only two injuries have been inflicted. Neither the weapon nor any incriminating thing has been recovered from the appellant and brought on record. Therefore, the intention and knowledge to attempt to commit the murder of the victim is not substantiated and hence this Court finds that the guilt and conviction of the appellant for the offence punishable u/s 307 of IPC is not substantiated beyond the reasonable doubt and it is an offence u/s 324 of IPC causing injury by the dangerous weapon because the injury as evident from the Ext. 2 is caused by a sharp cutting weapon although it is simple in nature. 21. Accordingly, this Court sets aside the judgment of conviction of conviction dated 23.07.2005 and order of sentence dated 26.07.2005 passed by learned Additional Judicial Commissioner 1st, Khunti, Ranchi in Sessions Trial No. 194 of 2002 in connection with Bundu P.S. Case No. 68 of 2001, corresponding to G.R. Case No. 500 of 2001, Khunti, Ranchi Jharkhand, whereby and where under the sole appellant has been found guilty u/s 307, 456 of IPC and 3 of the Prevention of Witch (Daain) Practices Act, 1999 and after setting aside the impugned judgment of conviction dated 23.07.2005 and order of sentence dated 26.07.2005 alters the same by holding the conviction of the appellant u/s 324 and 456 of IPC and under section 3 of the of the Prevention of Witch (Daain) Practices Act, 1999. 22. So far as the sentence is concerned, it is found that the sole appellant has already remained in jail for the substantive period of time and this occurrence is of the year 2001 about 21 years back and there is nothing on record to show the criminal history of the appellant. Further it has been pointed out that the appellant is ready to pay fine by way of compensation in order to give it to the victim P.W. 5- Mandodari Devi. Accordingly, the justice would be served if appellant is sentenced to imprisonment for a term of the period already undergone by him and further the appellant is sentenced to fine to a sum of Rs. 10,000/- (Rs. Ten Thousand) to be given to the victim P.W.5- Mandodari Devi, wife of late Rabindra Nath Mahto by way of compensation. 23. Accordingly, the justice would be served if appellant is sentenced to imprisonment for a term of the period already undergone by him and further the appellant is sentenced to fine to a sum of Rs. 10,000/- (Rs. Ten Thousand) to be given to the victim P.W.5- Mandodari Devi, wife of late Rabindra Nath Mahto by way of compensation. 23. Consequently, the appellant is sentenced to the imprisonment for a term of the period already undergone by him and he is further sentenced to pay fine by way of compensation to a sum of Rs. 10,000/- (Rupees Ten Thousands only) in order to give it to the informant victim P.W. 5- Mandodari Devi. 24. Since the appellant is on bail, he is given four months’ time from the date of this judgment to deposit the fine amount by way of compensation to a sum of Rs. 10,000/- (Rupees Ten Thousands only) as awarded to him to be given to injured victim P.W. 5- Mandodari Devi. 25. In case of default of payment of fine amount of Rs. 10,000/- (Rupees Ten Thousands only) by way compensation in order to give it to the victim P.W. 5- Mandodari Devi, so awarded by this Court within the stipulated period of time, the appellant will undergo rigorous imprisonment for a period of 02 (Two) years. 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 within the stipulated period of time, the appellant will serve the sentence 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, shall ensure that appellant serves the sentence of imprisonment in case of default of payment of fine. 26. The appellant may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court within a period of four months from the date of this judgment. 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. 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 will be sent to the informant P.W. 5 Mandodari Devi and on her appearance, the said fine amount, if so deposited by the appellant, will be disbursed to her accordingly. In case, if the victim informant (P.W. 5) is not traceable or not available or not found at the given address or does not appear before the court below after the notice, the same shall be disbursed either to the close or near relatives or kith and kin of the said victim, as the concerned learned trial court may deem fit and proper, and in this regard the court concerned may also involve the Para Legal Volunteer (PLV) of District Legal services Authority(DLSA), Ranchi, if required. 27. Accordingly, the appeal is partly allowed as above. 28. Let a 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 letter and spirit.