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2022 DIGILAW 262 (JHR)

Tarapad Mahatha v. State of Jharkhand

2022-03-07

NAVNEET KUMAR

body2022
JUDGMENT : This appeal is preferred Against the Judgment of Conviction and order of sentence dated 08.12.2003 passed by the Additional Sessions Judge, FTC-II, Bokaro, in S.T. No.127 of 2000/Suppl. S.T. No.70 of 2003, whereby and where under the sole accused appellant namely Tarapad Mahatha was convicted for the offence punishable under Sections 504, 337, 323 and 324 of IPC and sentenced him to undergo R.I. for six months each under Sections 504/323 of IPC, R.I. for two years under Section 324 of IPC and R.I. for one month under Section 337 of IPC and all the sentence were directed to run concurrently and further the appellant has been acquitted of the charges under Sections 447/307 of IPC. 2. Briefly stating the prosecution case is that on the basis of the written information given by the informant Prafful Kumar Mahtha (P.W.6), FIR has been lodged by the officer In-charge of Pindrazora P.S. As per written information, on 14.01.1996 at about 4 pm, niece (Bhagni) of the informant namely Pinki Kumari was playing with the son of his neighbour accused appellant Tarapad Mahatha in the kulli (passage) in front of his house, then there had some scuffle between them. On this, son of Tarapad Mahatha namely Bhuman Mahatha aged about 7 years went his house and narrated to his father about the scuffle. The above named accused appellant armed with axe came to the door of the informant and started abusing. On this, mother of the informant namely Dulari Bala Devi came out of the house and forbade him from abusing then, Tarapad Mahatha picked up a stone and threw it to her which hit her in stomach. Then the informant tried to stop the accused Tarapad Mahatha form assault then accused attacked the informant with the axe, which hit informant on his forehead causing bleeding injuries. Thereafter accused picked up a stone and threw it on the informant, which hit him on his hand. It is further mentioned that occurrence was witnessed by the mother of the informant and other neighbours. 3. Thereafter accused picked up a stone and threw it on the informant, which hit him on his hand. It is further mentioned that occurrence was witnessed by the mother of the informant and other neighbours. 3. On the basis of the written information, FIR has been lodged and after investigation, charge-sheet has been filed against the accused and the case was committed to the Court of Sessions and the charge was framed against the accused person on 24.06.2002 for the offence under Sections 447, 504, 337, 324, 323 and 307 of IPC and after the trial the accused appellant was convicted by the impugned Judgment of conviction and order of sentence as aforesaid, which is under challenge in this appeal. 4. Heard Syed Ramiz Zafar, learned Amicus Curiae appearing on behalf of the sole appellant and Sardhu Mahato, APP appearing on behalf of the State. 5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel appearing on behalf of the appellant submitted that the learned trial court has committed error in convicting the appellant, as it failed to appreciate the evidence in the right perspective. It is pointed out that the prosecution has not proved the very cause of occurrence, i.e. scuffle in between the niece of the informant and son of the appellant and also failed to examine the niece of the informant so as to prove the same. It is further submitted that there is no corroborative evidence on record to prove the assault on the mother of the informant and there is nothing on record to show that she was examined by the doctor and that the doctor found any injury on her person. It is pointed out that though the informant has alleged that he was assaulted by the appellant by axe, but the doctor did not find any sharp cutting injury on the person of the informant and the doctor only found simple injuries caused by hard and blunt substance. It is further submitted that from the medical evidence, no case is made out under Section 324 of IPC. It is further submitted that from the medical evidence, no case is made out under Section 324 of IPC. It is submitted that there is no independent witness examined on behalf of the prosecution and both the parties belong to the same family and there is a dispute of landed property and as such, the appellant has been falsely 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. 6. On the other hand, learned counsel appearing on behalf of the Respondent-State Sardhu Mahto opposed the contentions raised on behalf of the appellants and submitted that the learned trial court has rightly appreciated the evidences and therefore this appeal is fit to be dismissed being devoid of merit. Appraisal & Findings 7. Having heard learned counsel for the parties and perused the record of the case including the lower court record; it is found that it is admitted case of the prosecution that both the parties are the agnates being the ancestors of the common ascendants including the accused appellant Tarapad Mahatha and the informant PW – 6 Parfful Kumar Mahatha. On the date of occurrence, i.e. on 14.01.1996, at about 4 pm, when the niece of the informant and the son of the appellant were playing, then scuffle took place and thereafter it is alleged that the son of the accused appellant had gone to complain the accused appellant Tarapad Mahatha and then the accused appellant Tarapad Mahatha came to the door of the informant, armed with axe and assaulted the informant and also caused injury to the mother of the informant namely Dulari Bala Devi PW – 5. Initially the charges were framed against the sole accused appellant Tarapad Mahatha for the offences punishable under Sections 447, 504, 337, 324, 323 and 307 of IPC, but the learned trial court after conclusion of the trial, found the guilt of the accused person for the offences punishable under Sections 504, 323, 324 and 337 of IPC and accordingly he was convicted and sentenced by the impugned judgment of conviction and order of sentence. 8. In order to substantiate the charges levelled against the accused appellant, the prosecution has been able to adduce oral as well as documentary evidences. 8. In order to substantiate the charges levelled against the accused appellant, the prosecution has been able to adduce oral as well as documentary evidences. Out of 8 prosecution witnesses examined on behalf prosecution, PW – 1 Madan Mohan Tiwari has turned hostile and PW -2 Surendra Nath Tiwari and PW – 3 Sarda Prasad Tiwari are hearsay witnesses and they have supported the case of the prosecution by stating in their testimonies that Parfful had sustained injuries and these witnesses came to know from Parfull that the accused appellant Tarapad Mahatha had assaulted him. As documentary evidences Ext.1 is the written information which is basis of instituting the FIR and Ext. is 2 the injury report of the injured informant P.W.6. 9. PW – 4 Baleshwar Singh Choudhary is a tendered witness. 10. PW – 5 Dulari Bala Devi, who is the mother of the injured informant P.W.6, is also said to have beeen assaulted as per the FIR itself by the accused appellant by pelting stone upon her, but she clearly stated in her examination-in-chief that neither she has been examined by the doctor, nor the injury report has been brought on behalf of the prosecution for the injuries alleged to have been inflicted upon this witness P.W.5 Dulari Bala Devi. Nevertheless, the testimonies of PW – 5 Dulari Bala Devi substantiated the charges levelled against the accused appellant by stating that her son Parfful Kumar Mahata, PW – 6 was assaulted by the accused appellant in a very categorical and unequivocal manner. In a lengthy cross-examination, nothing has been elicited on behalf of the defence to disbelieve her version. This witness PW – 5 has accepted that there had been a dispute of landed properties between them as both were cousins and the partition has also not taken place completely and therefore the enmity is admitted fact, but despite the enmity, it is found that all the witnesses have consistently supported the case of the prosecution that the appellant had assaulted the informant Parfful Kumar Mahata PW -6. 11. 11. The informant Parfful Kumar Mahatha PW – 6 squarely substantiated the allegations as set-out in the FIR by stating that when his niece and son of the accused appellant were playing, then some altercation took place between them, upon which, the son of the accused had made the complaint to his father (accused appellant) Tarapad Mahtha and then he came armed with Axe and assaulted the informant (P.W.6), by which, the informant sustained the injuries. PW – 6 proved his signature and the handwriting of the written applications submitted to the officer in-charge of Pindrazora police station, which has been marked as Ext. – 1. In the lengthy crossexamination, also, the defence could not elicit any inconsistency or contradiction to disbelieve the version of this witness. 12. The injuries, which were alleged to have been inflicted upon this witness PW – 6, have been supported by Doctor Chandeshwar Choudhary, PW – 7, who had examined the injured informant P.W.6, proved the injury report Ext. 2 and found the following injuries : “1. lacerated wound on the right side of forehead measuring 1/2”x1/4” up to skin level. 2. Injury is the swelling on upper and lower lids of right eye. 3. Injuries abrasion upon right arm about 3” up to skin level.” This witness PW – 7 stated and opined that all the injuries caused by hard and blunt substance and they were simple in nature. Since the charge against the appellant for inflicting injury upon the informant PW – 6 is by the sharp cutting weapon, namely, axe which is primarily a sharp cutting weapon, but the possibility of assaulting by the blunt part of that axe cannot be rule out in view of the categorical finding of the injuries upon the persons of the injured PW – 6 and the assault by the appellant upon the informant has been deposed consistently and uniformly by all the witnesses as appraised in the foregoing paragraphs. This doctor witness (P.W.7) has proved the injury report Ext. – 2. From perusal of Ext. This doctor witness (P.W.7) has proved the injury report Ext. – 2. From perusal of Ext. 2, it is found that all the injuries are simple in nature and therefore the case of the prosecution is not substantiated to the fact that the injuries caused by dangerous weapon and offence punishable under Section 324 of IPC is not proved and substantiated by the testimony of the doctor PW – 7, although the charge for sustaining the injuries under Section 323 of IPC has been corroborated and proved. In this view of the matter, the trial court below has committed error in the appreciation of injuries alleged to have been caused upon body of the injured P.W.6, vis-a-vis injury report, therefore this court finds that there is a gross error of finding in the appreciation of the evidence to hold the guilt of the accused appellant for the offence punishable under Section 324 of IPC. 13. PW – 8 Rana Vinay Singh is the I.O. of the case, who has clearly established the place of occurrence, which is said to be the house of the informant. He did not find any blood in the P.O. and therefore the injury under Section 324 of IPC is also ruled out by the testimonies of this witness. 14. In the backdrop of the aforesaid discussions and appraisal of the evidences, this court clearly comes to the conclusion that the accused appellant is found guilty for the offence under Section 323 of IPC and accordingly this court alters the sentence awarded by the learned trial court from the offence punishable under Sections 504, 323, 324, 337 of IPC to the offence punishable under Section 323 of IPC only. 15. As a result, this Court after finding the guilt of the sole appellant for the offence punishable under Section 323 of IPC, sets aside the impugned judgment of conviction and order of sentence dated 08.12.2003 passed by the Additional Sessions Judge, FTC-II, Bokaro, in S.T. No.127 of 2000/ Suppl. Sessions Trial No. 70 of 2003, in connection with Pindrazora P.S. Case No. 07/1996, passed against the accused appellant for the offence punishable under Section 504, 324, 337 of IPC and consequently the sole appellant is convicted for punishable under Section 323 of IPC only. 16. Sessions Trial No. 70 of 2003, in connection with Pindrazora P.S. Case No. 07/1996, passed against the accused appellant for the offence punishable under Section 504, 324, 337 of IPC and consequently the sole appellant is convicted for punishable under Section 323 of IPC only. 16. So far as the sentence is concerned, learned defence counsel appearing on behalf of the appellant has pointed out that both the parties are gotias (agnates) and there had been a dispute regarding landed properties between them and at the time of trial, the sole appellant was about 48 years old, the incident is of the year 1996 and thus about 25 years has elapsed since the date of occurrence. Further it has been pointed out that the sole appellant has been suffering the miseries and hardships of the criminal proceeding for a long period of time since 25 years and there is nothing on record to show about the criminal history and therefore it is not reasonable to send the appellant again in jail and therefore having taken into consideration all these factors, this court comes to the conclusion that it is just and fair that the appellant is awarded with sentence of imprisonment for a term of period already undergone by the appellant. 17. In the result, this appeal is partly allowed as above. 18. Mr. Syed Ramiz Zafar has appeared in this case Amicus Curiae after being appointed by the Jharkhand State Legal Services Authority to defend the case of the appellant from the legal services panel lawyer and therefore, let a copy of this judgment be communicated to the Member Secretary, Jharkhand State Legal Services Authority to do the needful for the payment of his professional fee as per the prescribed Rules and Regulations. 19. Let the Lower Court Record be sent back forthwith to the concerned court below.