Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 327 (JHR)

Shambhoo Mahto v. State of Jharkhand

2022-03-22

NAVNEET KUMAR

body2022
JUDGMENT : This appeal is preferred against the Judgment of Conviction and order of sentence dated 23.08.2003 passed by the learned 9th Additional Sessions Judge, Hazaribagh in S.T. No.528 of 2001, arising out of Gola P.S. Case No.16 of 2000, corresponding to G.R. No.955 of 2000, whereby and where under accused appellants Shambhoo Mahto and Balram Mahto were held guilty for the offence punishable under sections 304 part II/34 of IPC, for which they were directed to undergo RI for 7 years and to pay a fine of Rs.1000/- each and in default of payment of fine they were further directed to undergo RI for two months. 2. The prosecution case arose in the wake of fardbayan of one Makhan Thakur recorded on 19.05.2000 at 15.15 pm at Gola Hospital, Gola. It has been alleged therein that the informant on Friday dated 19.05.2000 at 12.30 pm was getting his house repaired with the help of labourers, meanwhile Chatru Mahto, Balram Mahto and Shambhoo Mahto came up there with lathi, danda and began to scold him and stopped him from doing repairing work saying that the land was belonging to them, but when the informant said that it was his land, the aforesaid three accused persons began to assault him by lathi and as a consequence he sustained injury on his head and when his son Pancham Kumar Thakur, wife Panchami Devi, daughters Jyanti Devi and Sarswati Devi came to rescue, the accused persons injured them also. Meanwhile Dewanand Mahto and Pramod Mahto also arrived there with lathi in their hands and entered into the house and on being protested they also assaulted the informant and his family members and then several people from the village gathered there and rescued him being assaulted more. The reason assigned by the informant for the quarrel was landed property dispute. 3. On the basis of fardbayan lodged by the informant, Gola P.S. case No. 16/2000 was registered under Sections 323, 448, 341/34 of IPC and later on added section 304 of the IPC against the accused and investigation was taken up. The reason assigned by the informant for the quarrel was landed property dispute. 3. On the basis of fardbayan lodged by the informant, Gola P.S. case No. 16/2000 was registered under Sections 323, 448, 341/34 of IPC and later on added section 304 of the IPC against the accused and investigation was taken up. After investigation, the police submitted the charge-sheet in this case, on the basis of which, cognizance was taken and the case was committed to the Court of Sessions 9th Additional District & Sessions Judge, Hazaribagh, framed charge on 31.05.2002 under Sections 426, 337, 304 of IPC and after trial, the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. Heard Anoop Kumar Mehta learned defence counsel appearing on behalf of the appellants and learned APP Mr. Azeemuddin appearing on behalf of the State. 5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel contended that the conviction and sentence passed by the learned trial court is contrary to the fact and circumstance of the case and contrary to the settled principles of law and learned court below failed to appreciate the vital omission and commissions in the depositions of PWs. It has been submitted by the learned defence counsel that the learned court below erroneously and illegally treated the fardbeyan of the informant as dying declaration under section 32 of the Evidence Act whereas admittedly the deceased informant died after 4 days of the occurrence and that too after taking treatment at primary health centre when he came back to his home. It has also been contended on behalf of the appellant that admittedly the alleged incident took place due to landed property dispute but the learned trial court in a criminal trial has evaluated the documentary evidences of the properties in dispute as whom the disputed land was belonging and further no independent witnesses have been examined in this case when admittedly co-villagers nor any labourers whose names were given by P.W.s were examined and further there is a major discrepancy about the place of death of the deceased as P.W.1 to P.W.4 have said that the informant died at Gola Hospital on 24.5.2000 but P.W.8 I.O. stated that the deceased died in his house and no document has been produced by the prosecution about the place of death of the deceased and the appellants have not been properly examined under section 313 of Cr.P.C. and further as per the depositions of the P.W.s that two more people were involved in the alleged incident but interestingly enough they were not made accused in this case i.e. Chottu Mahto and Promod Mahto and as such, the impugned judgment of conviction and order of sentence passed by the Court below is fit to be set-aside. 6. On the other hand the learned APP appearing on behalf of the State contended that the learned trial court has rightly convicted the appellant on the basis of the legal evidences available on record for the offence punishable under sections 304 part-II/34 of the Indian Penal Code and awarded the sentence accordingly and there is no merit in the appeal and it is fit to be dismissed. Appraisal & Findings 7. Having heard the parties, perused the materials available including the lower court records. 8. It is found that in order to substantiate the charges levelled against the accused persons, the prosecution has been able to examine altogether nine witnesses, which are PW-1 Sarswati Devi, PW-2 Jayanti Devi (daughter of informant), PW-3 Panchami Devi(wife of informant), PW-4 Pancham Kr. Thakur(son of informant), PW-5 Bindia Devi, PW-6 Manju Devi, PW-7 Mahavir Uraon, the Medical Officer, PW-8 Baldeo Paswan, the I.O. of this case and PW-9 Amitabh Ganguli, who was posted as CAS in Sadar Hospital Hazaribagh and held the post mortem of the dead body of informant. Apart from the oral evidences, the prosecution has also proved the documentary evidences. 9. Apart from the oral evidences, the prosecution has also proved the documentary evidences. 9. It is admitted case of the prosecution that there had been a landed property dispute between both the parties (between the accused-appellants and informant’s people) and therefore the witnesses examined on behalf of the prosecution are inimical witnesses and that need to be appraised and evaluated in a very cautious and prudent manner inasmuch as enmity is double edged weapon and possibility of committing the offence and false implication are equally imminent. It is further found from the record, which is admitted case of the prosecution that apart from the family members of the informant (deceased), there were some labourers also working at the place of occurrence for erecting wall, but none of labourers has been examined as independent witness. The prosecution has relied upon the witnesses, who are partisan witnesses. No doubt, they are the natural witnesses, but it is also true that they are the son, daughter and the wife of the deceased and therefore the scrutiny of their testimonies needs more diligence and more attentiveness to come to a finding. It is also manifest that the FIR was instituted against the five accused persons including Chatru Mahto, Shambhoo Mahto, Balram Mahto, Dewanand Mahto and Parmod Mahto. After investigation, the police submitted the charge-sheet against three accused persons namely Appellant No.1 Shamboo Mahto, Appellant No.2 Balram Mahto and Dewanand Mahto and the rest of the two accused namely Chatru Mahto and Parmod Mahto were exonerated and final report was submitted against them. The learned trial court had framed the charges against three accused persons including these appellants namely Shamboo Mahto, Balram Mahto and one agianst Dewanand Mahto for the offences punishable under sections 426, 337 and 304 of the IPC and after trial these two appellants Shamboo Mahto and Balram Mahto were convicted and sentenced for the offence punishable under sections 304 part II/34 of IPC and the said Dewanand was found guilty only for the offence punishable under section 323 of IPC instead of awarding sentence he was released on admonition. It is found from the deposition of the witnesses examined on behalf of the prosecution consistently and uniformly that the said Chatru Mahto had assaulted pointedly upon the deceased, but after investigation, the police submitted the final report against him, therefore the testimonies of the witnesses with respect to charges against these appellants who were said to have assaulted the deceased needs a convincing corroboration to convict them for the offence punishable under sections 304 part II/34 of IPC. In the backdrop this Court now proceeds to evaluate the evidences adduced on behalf of the prosecution. 10. PW-1 Saraswati Devi is the daughter of the informant, who has stated that two of the accused appellants Shambhoo Mahto and Balram Mahto had assaulted the deceased by lathi apart from the other accused persons. The major contradiction is found in the deposition of this witnesses is that she stated that the deceased father (informant) had died on 24.05.2000 in hospital, whereas the I.O. of this case Baldeo Paswan PW-8 has categorically stated in para 12 that the deceased had died in the house. It is found that all the other witnesses like PW-3 Panchami Devi (wife of the deceased), PW-4 Pancham Kumar Thakur (son of the informant) and PW-2 Jayanti Devi (daughter of the informant), all of them had stated that the deceased had died in the hospital, but their versions gets falsified in the categorical deposition of the I.O. in para 12 of his deposition. It is further found that their depositions also get falsified because of their own versions that the deceased after the first aid treatment in the hospital on the same day of occurrence, was discharged and therefore the injuries, which was found immediate after the alleged assault was not so grievous and serious in nature to cause death of the deceased and thus it is also established that injuries alleged to have been inflicted upon the deceased was not the in ordinary course of nature to cause death and therefore I find force in the contentions raised on behalf of the defence that the appellants were not harbouring with intention or knowledge to cause death of the deceased and it was not even a case for culpable homicide not amounting to murder, because of the probabilities of death as emanating from the testimonies of the witnesses and the injuries found in the injury reports was very feeble and shaky, although the deceased succumbed to injury after five days of occurrence, i.e. 19.05.2000 and the deceased died on 24.05.2000. 11. Further PW-2 Jayanti Devi is the daughter of the deceased and she had stated that all the accused persons including these two appellants had assaulted her deceased father by lathi. Some major contradictions were found in the deposition of this witness from her earlier statement when the attention of the I.O. was drawn in para 14 that the co-accused Devanand had pelted stone upon her and her sister, by which, they sustained injuries as evident from the cross-examination of this witness. 12. PW-3 Panchami Devi is the wife of the deceased informant and she categorically stated in her deposition that apart from her husband (deceased), the daughters PW-1 and PW-2 and son PW-4, have been assaulted. There were some labourers also in the place of occurrence, but none of labours had been examined. This witness had categorically stated the name of the labours also as Takhur Manjhi, Sital Bedia, but the prosecution failed to examine these labourers. In the cross-examination, this witness (PW-3) had stated that at the time of occurrence, the wall had fallen, by which the deceased Makhan Thakur had sustained the injuries. This witness had categorically stated the name of the labours also as Takhur Manjhi, Sital Bedia, but the prosecution failed to examine these labourers. In the cross-examination, this witness (PW-3) had stated that at the time of occurrence, the wall had fallen, by which the deceased Makhan Thakur had sustained the injuries. Thus the version of this witness is strongly pointing the defence that injuries might have caused due to fall of bricks of the wall during the course of altercation as evident from the FIR also where it has been specifically stated that when informant people were doing the construction work of repairing house then the accused people came there and asked them to stop the work, upon which quarrel took place and the accused persons allegedly assaulted the deceased but from these established facts it is well founded that the appellants had neither an intention or knowledge of any degree to cause death of the deceased as evident from the injuries reports and the deposition of the doctor also where the deceased was discharged after first aid from the hospital on the same day. Thus it is found that the learned trial court has committed gross error in appreciating the evidences particularly the deposition of P.W.3 and the doctor P.W.7. Further this witness also had stated that the deceased had died in the hospital, which has been explicitly falsified by the I.O. who categorically stated in Para 12 that the deceased had died in the house and not in the hospital. 13. PW-4 Pancham Kr. Thakur is the son of the deceased and from the testimony of this witness, it is found that these two appellants had assaulted the deceased along with other co-accused persons. The version of this witness also gets falsified when he had stated that his father had died in the hospital while the I.O. of this case had stated in his categorical deposition in para 12 that the deceased had died in the house and not in the hospital. 14. PW-5 Bindia Devi and PW-6 Manju Devi, who were independent witnesses and they have been declared hostile as they had not supported the prosecution case. 15. 14. PW-5 Bindia Devi and PW-6 Manju Devi, who were independent witnesses and they have been declared hostile as they had not supported the prosecution case. 15. From the testimonies of the witnesses examined on behalf of the prosecution as elaborately discussed in the foregoing paragraphs, it is well founded that admittedly there was a dispute between both the parties including the prosecution party and the accused and at the place of occurrence, these two appellants along with others had assaulted the deceased, but the fact also remains to take into consideration as to whether their assault was intended to cause death and was sufficient in ordinary course of nature to cause death of the deceased in order to invoke the offence punishable under Section 304 part II of IPC or the injuries caused due to fall of wall out of quarrel being taken place at the time of occurrence which has been pointedly corroborated by the eye witness P.W.3 who is the wife of the deceased. 16. In this backdrop this Court proceeds to examine the injuries, which are alleged to have been inflicted by these two appellants. It is also very much clear from the testimonies of the witnesses that there is no repetitive assault by these witnesses. In this view of the matter, the injuries inflicted upon the deceased are found to have been medically examined by PW-7 Mahavir Oraon who on 19.5.2000 had medically examined the deceased Makhan Thakur and found the following injuries. 1. Lacerated wound on head upper and backside size 1”x1/4”x1/4” 2. Complaint of Lower back pain This witness had also examined the injured person PW-3 Panchami Devi and found the following injury on her:- 1. Lacerated wound on her right temporal side size 1/2”x1/4”x1/4” 2. Lacerated wound on right hand size 1”x1/4”x1/4” 3. Complaint on low back pain He has also examined PW-4 Pancham Thakur and found the following injuries:- 1. Swelling of big toe 2. Complaint of pain of left leg He also examined PW-1 Sarswati Devi and found the following injuries : 1. Lacerated wound on right leg size 1 1/2”x1/4”x1/4” 2. Complaint of body ache. It was categorically opined that the injury on all the injured was simple injury caused by hard and blunt substance and all the four aforesaid injuries reports are marked as Ext.-1, 1/1, 1/2 and 1/3 respectively. 17. Lacerated wound on right leg size 1 1/2”x1/4”x1/4” 2. Complaint of body ache. It was categorically opined that the injury on all the injured was simple injury caused by hard and blunt substance and all the four aforesaid injuries reports are marked as Ext.-1, 1/1, 1/2 and 1/3 respectively. 17. From perusal of the aforesaid injury reports, it is found that the injury inflicted upon the injured persons including the deceased Makhan Thakur was simple in nature and on the deceased there was only one injury that is lacerated wound on head upper back side 1”x1/4”x1/4”, whereas the injured Panchami Devi had sustained two injuries, Pancham Thakur had no injury and only complain of back pain and swelling and the injured Sarswati Devi had one injury, i.e. lacerated wound on right leg size 1 1/2”x1/4”x1/4” and complain of body ache. It is evident that the injuries inflicted upon the four person, out of whom, three had survived and one only the deceased Makhan Thakur who is said to be 72 to 75 years, succumbed to the injures and died and therefore from the injury reports, it is found that there had not been any intention or knowledge or any circumstances pertaining to the act of these appellants, that they had caused death of the deceased and utmost it is a case of simple injuries within the meaning of offence punishable under Section 323 of IPC. The learned trial court rightly considered the Fardbeyan (Ext.-2) as dying declaration but grossly erred in appreciating the contents of Fardbeyan (Ext.-2) vis-a-vis the injury report of the deceased, the manner, mode and opportunity in order to infer and to come to the conclusion that the appellants have caused the injuries with the intention or knowledge to cause death of the informant. Further it is also found that the attention of the doctor has been drawn to the cause of injures by the defence where the doctor PW-7 categorically stated that such injuries are swelling and might be caused by fall of the wall and therefore the possibilities of this aspect cannot be ruled out that in the alleged scuffle the bricks of the wall fell upon the deceased who succumbed to the injuries after 5 days as pointedly corroborated by the eye witness P.W.3 who is the wife of the deceased as she stated that on the date of occurrence the wall fell upon the deceased by which, he had sustained the injuries and hence the appellants deserve benefit of doubt. 18. Further PW-9 Amitabh Ganguly who had conducted the post mortem of the deceased after five days on 24.5.2000 of the alleged incident which took place on 19.5.2000 and he opined that the death was caused due to haemorrhage and shock due to injury over brain caused by hard and blunt substance and the post-mortem report has been proved by this witness, which has been marked as Ext.-6. This witness has also stated that such type of injury can be caused by falling the wall on the head and therefore the possibilities of this fact has also been corroborated by the statement by this witness PW-9, which has also been taken by the defence by the accused appellants, which has come in the categorical version of PW-3. 19. PW-8 is the I.O. of the this case and he has found some contradictions in the statement of the witnesses, which have been discussed in the foregoing paragraphs as evident from paragraphs 12, 13 and 14 with respect to the fact about the place of death of the deceased and also weapons used by the accused appellants as stated in the deposition of the PW-1 Saraswati Devi, who stated in examination-in-chief that Chatru (not the appellant before this Court) and Balram (appellant No.2) had come along with farsa (Sharp cutting weapon), but the I.O PW-8 categorically stated that it was not stated by Sarswati Devi in her statement that Chatru and Balram had come with farsa and therefore her version gets falsified, which appears to be a major contradictions in her testimonies because of the nature of the offence. 20. 20. On the other hand, during the course of trial, the defence has also been able to examine the defence witnesses DW-1 and some documents have been brought on record that is Ext. A to A/1 and Ext. B to B/10 in order to show that there had been a long standing dispute of landed properties between both the parties, which is an admitted fact and hence the inimical evidences have been appraised cautiously and diligently as above inasmuch as enmity is a double edged weapon where possibility of both: false implication and commission of offence are imminent. 21. Recapitulating the aforesaid evaluation of evidences adduced on behalf of the parties it is manifest that the learned trial court failed to appreciate the evidences in a holistic manner particularly considering the fardbeyan as dying declaration to the extent of causing intentional death of the deceased while evidences are not substantiating the offence punishable under section 304 Part II of IPC at all and it is a case of simple hurt within the meaning of section 323 of the IPC. It is well founded that these two appellants along with other persons reached to the place of occurrence, where the informant along with labours and his family members were doing some repair work in their house and a dispute arose between both the parties with respect to the ownership of the property and a quarrel took place between them, the accused persons assaulted the informant Makhan Thakur and the other injured persons including the daughters PW-1 Saraswati Devi and P.W.2 Jayanti Devi, PW-4 Pancham Thakur, the son of the deceased, and PW-3 Panchami Devi, wife of the deceased. It is emanating from the discrepancies of the witness that the injury inflicted upon the deceased Makhan Thakur was simple in nature and he was 70 to 75 years old at the time of occurrence and later on, after five days, he was succumbed to the injuries. There had not been any intention or knowledge from the depositions of the witnesses for causing death of the deceased, by which any knowledge or intention can be inferred to kill the deceased. There had not been any intention or knowledge from the depositions of the witnesses for causing death of the deceased, by which any knowledge or intention can be inferred to kill the deceased. It is found that only one injury was inflicted upon the deceased as evident from Ext.-1 and that too was also lacerated wound on head upper and back side size 1’’x1/4’’x1/4’’ and complaint of lower back pain and similarly the injuries of other injured persons including P.W.1, P.W.4, P.W3 are simple and superficial and therefore considering the circumstances in totality, it could not be ascertained as intentional injuries sufficient to cause the death of the deceased, although he succumbed to the injury later on after five days of the occurrence and further In the cross-examination, this witness (PW-3) had stated that at the time of occurrence, the wall had fallen, by which the deceased Makhan Thakur had sustained the injuries. Thus the version of this witness is strongly pointing the defence that injuries might have caused due to fall of bricks of the wall during the course of altercation as evident from the FIR also where it has been specifically stated that when informant people were doing the construction work of repairing house then the accused people came there and asked them to stop the work, upon which quarrel took place and the accused persons allegedly assaulted the deceased and thus from these established evidences it is well founded that the appellants had neither an intention nor knowledge of any degree to cause death of the deceased as evident from the injuries reports and the deposition of the witnesses also where it is found that the deceased was discharged after first aid from the hospital on the same day. Therefore this Court found that learned Trial Court committed gross error in appreciating the evidences particularly appreciating the FIR of the deceased as a dying declaration to the extent of causing intentional death of the deceased within the meaning of culpable homicide not amounting to murder in absence of iota of evidence to that effect and found the appellants guilty for the offence punishable under Section 304 part–II of the IPC. 22. Accordingly, this Court alters the conviction from 304 Part–II read with Section 34 of IPC to Section 323 /34 of IPC. 22. Accordingly, this Court alters the conviction from 304 Part–II read with Section 34 of IPC to Section 323 /34 of IPC. In this view of the matter, the impugned judgment of conviction and order of sentence passed by the learned 9th Additional Sessions Judge, Hazaribagh in S.T. No.528 of 2001, arising out of Gola P.S. Case No.16 of 2000, corresponding to G.R. No.955 of 2000, against these two appellants is set-aside and the appellants are held guilty for the offence punishable under Section 323 /34 of IPC and accordingly they are convicted therein. 23. Learned counsel appearing on behalf of the appellants submitted that both the appellants have already remained in jail during the course of trial of this case altogether more than one year and thus they have already suffered sufficient by remaining in jail. Further it is a case of the year 2000 and they have been suffering from trauma and miseries of the criminal proceedings for a long period of time and accordingly it is urged on behalf of the appellants that these are mitigating circumstances in awarding the sentence. 24. Having taken into consideration the aforesaid facts, this court finds that it is just and fair that instead of awarding the sentence of imprisonment by sending them again in jail, it would be just and fair and the ends of justice would be met out, if the appellants are sentenced to the imprisonment for the period already undergone and accordingly, both the appellants are sentenced to the imprisonment for a term of period already undergone by them. Both the appellants are on bail and hence they are discharged from the liabilities of their bail bonds. 25. Accordingly, this appeal is partly allowed as above. 26. Let the Lower Court Record be sent back forthwith to the concerned court below.