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2024 DIGILAW 210 (JHR)

Balram Mahto v. State of Jharkhand

2024-02-23

GAUTAM KUMAR CHOUDHARY

body2024
JUDGMENT : Gautam Kumar Choudhary, J. Heard the parties. 1. Both the aforesaid Criminal Appeals arise out of the Judgment of conviction dated 29.11.2012 and order of sentence dated 30.11.2012, passed by learned District and Addl. Sessions Judge-1, Jamtara in Sessions Trial No.69 of 2009 (Jamtara P.S. Case No.217 of 2008) and, therefore, they have been heard together and shall be disposed of by the common Judgment. 2. Appellants have been convicted and sentenced to undergo RI for 7 years and further to pay a fine of Rs.10,000/- each for offence under Section 307 IPC and in default, to undergo imprisonment for six months. They have also been convicted and sentenced to undergo imprisonment for four years and fine of Rs.5000/- each under Section 452 IPC. Appellant Bhirgu Mahato was also sentenced to undergo imprisonment for two years under Section 379 IPC. Appellants were also convicted under Sections 341, 323 and 504 of Indian Penal Code but no separate sentence regarding these offences were passed against them. 3. As per the prosecution case, the incidence took place at 7:30 PM on 08.09.2008 when the appellants/accused persons entered into his house and conjointly assaulted him. The genesis of the incidence is that the informant had earlier lodged a case against the accused persons, in which they had been arrested and sent to jail. Balram and Bhrigu physically assaulted the informant, whereas Rajesh attacked him with a knife. The informant sustained injury in his hand by knife and accused, Bhirgu Mahato took away the purse of the informant. When the mother of the informant came to his rescue, she was also assaulted. On hulla, Gandhu Mahato, Govind Mahato, Sudhir Mahato and others came there, the accused persons fled away. 4. On the basis of the aforesaid 'fardbeyan' of informant, the Police instituted First Information Report being Jamtara P.S. Case No.217 of 2008 corresponding to G.R. No.491 of 2008 under Sections 341, 323, 324, 452, 307, 379, 504, 34 of the Indian Penal Code. The appellants/ accused were put on trial under Sections 341, 323, 324, 452, 307, 379, 504, 307/ 34 IPC. 5. The prosecution has examined altogether 14 witnesses, and relevant documents including the injury reports were adduced into evidence and marked as Exhibits. 6. Judgment of conviction and order of sentence is assailed on the ground that the ocular evidence is not corroborated by the medical evidence. 5. The prosecution has examined altogether 14 witnesses, and relevant documents including the injury reports were adduced into evidence and marked as Exhibits. 6. Judgment of conviction and order of sentence is assailed on the ground that the ocular evidence is not corroborated by the medical evidence. The injuries are superficial in nature which will not make out an offence under Section 307 IPC, for which criminal intent to cause death is the necessary ingredients. As per the case of prosecution, there were three assailants and one of them was armed with knife. Had they such an intention, nothing would have prevented them to cause death or cause such bodily injury which was sufficient to cause death in the ordinary course of nature. 7. It is further submitted that except for the injured, all other witnesses are hearsay. Two witnesses have turned hostile and not supported the case of the prosecution. Indisputably there was land dispute, which was the sole motive for false implication. It is submitted that the Doctor has found abrasion which rules out any infliction of knife regarding cut injury on the person of the informant. 8. On the point of sentence, it is submitted that there is no past conviction against these appellants. At the time of judgment of conviction, the age of the appellants Balram Mahto, and Rajesh Mahto was 52 years and 34 years respectively in the year 2012. There is no criminal history and the matter involves the land dispute. 9. Learned counsel for the State has defended the impugned judgment of conviction and order of sentence. It is submitted that Umakant Mahato, informant of the case has been examined as P.W.10 who was injured in the incidence and there is no reason that he will exonerate the real assailant and falsely implicate the present appellants. It is argued that altogether 14 witnesses and relevant documents, including the injury report and FIR have been marked as exhibits. 10. Out of 14 witnesses examined, PW 10 is the informant who was injured in the incidence. Written report was made on 08.09.2008 and on the very same day of incidence the case was registered. The informant was examined by the doctor who has been examined as PW14 who has deposed that on 09.09.2008 he examined the injured and found the following injuries : i. Abrasion over right side of neck 1/2” x 1/4” ii. Written report was made on 08.09.2008 and on the very same day of incidence the case was registered. The informant was examined by the doctor who has been examined as PW14 who has deposed that on 09.09.2008 he examined the injured and found the following injuries : i. Abrasion over right side of neck 1/2” x 1/4” ii. Linear abrasion over chest wall left side 2½” x 1/8” iii. Linear abrasion over left forearm interior 3” x 1/8” iv. Abrasion over right forearm 2”x1/6” v. Swelling and tenderness over occipital region of scalp 1” x 1”. vi. Tenderness over chest on left side advise X ray for A.P. View of chest. 11. It is argued that promptness in institution of the FIR, examination of the injured by the doctor, and the corroboration of the testimony of the injured witness by independent witnesses, establish the prosecution case beyond the shadow of all reasonable and probable doubt. ANALYSIS 12. Evidence is to be appreciated as per principles settled by a long line of Judicial precedents. Before entering into appreciation of evidence, it shall be desirable to set out some of them, which have crystallized over time. There are four ways in which a trial court can hold a witness unreliable : I. The witnesses’ statements is inherently improbable or contrary to the course of nature II. The witness’s deposition contains mutually contradictory or inconsistent passages III. The witness is a bitter enemy of the opposite party and therefore, possesses ample motive for wishing him harm IV. The witness’s demeanor at the time of examination is found abnormal or unsatisfactory. In assessing the value of the evidence of an eye-witness, the two principles considerations are (i) whether, in the circumstances of the case, it is possible to believe, his presence at the scene of occurrence (ii) whether there is anything inherently improbable or unreliable in his evidence. It is also an established principle of appreciation of evidence that a testimony without a fringe or embroidery of untruth is rare. Testimony of an injured witness is entitled to a higher degree of credence. The court can reject it only when it is tainted to the core, that is, where falsehood and truth are inextricably intertwined. If it is not so, the court must separate the grain from the chaff. 13. Testimony of an injured witness is entitled to a higher degree of credence. The court can reject it only when it is tainted to the core, that is, where falsehood and truth are inextricably intertwined. If it is not so, the court must separate the grain from the chaff. 13. In the present case the incidence took place on 08.09.2008 and the Doctor examined the injured on the very next date i.e. 09.09.2008, wherein he found altogether five injuries on the person of the injured which corroborates the testimony of the witnesses that the informant was injured in the incidence. 14. Regarding the complicity of the appellants in the offence, name of both the Appellants have been stated in the FIR which corroborates the testimony of the informant who has been examined as PW10. Although there appears to be exaggeration in the account of the informant, regarding injury having been inflicted by knife, as that part has not been corroborated by medical evidence. There is however, no evidence which does not suffer from some embroidery of untruth. But this cannot be the sole ground to discard the complete evidence of any witness. As discussed above, informant is consistent with regard to date, time, place of the incidence and the persons who were involved in it in which he was assaulted. His testimony is corroborated by his mother PW12, who is a natural witness to the incidence. Other witnesses like PW2, PW3 and PW4 are also direct eye witnesses and corroborated the testimony of the informant. PW5 and PW8 is not direct eye witness to the incidence but he came there immediately thereafter, and saw the informant lying there in an injured condition. PW5 also saw Rajesh while coming out of the house. PW9 does not claim to be a direct eye witness to the incidence, but has deposed that when he reached there on hulla, he found Umakant lying there in an injured condition, who narrated to him that he had been assaulted by the Appellants. PW13 is the village headmen, he does not claim to be an eye witness, but has stated that the incidence did take place. 15. PW13 is the village headmen, he does not claim to be an eye witness, but has stated that the incidence did take place. 15. On the combined reading of the testimony of witnesses, I do not find any material contradiction or improbability in the prosecution story regarding the veracity of the incidence took place, in which the informant was assaulted by all the three accused persons. Defence, has failed to elicit any contradiction in their account to disbelieve the prosecution version. 16. The argument as made on behalf of the appellant(s) that since the part of the testimony of the witnesses has been falsified and, therefore, entire testimony be brushed aside cannot be accepted for the reason that falsus in uno falsus in omnibus is principle of English common law which has not received legal sanctity in Indian Criminal jurisprudence. There is no testimony where there is some element of exaggeration and it is the duty of the Court to separate grain from the chaff. 17. Matter for consideration is whether on evidence of assault, the charges are proved against the accused persons. 18. Intention is mental element which is demonstrated by the weapon used, injury caused and the part of the body in which the said injury is inflicted. In the present case although it is stated by the injured witness that the injury was caused by knife, but no incised wound has been found on his person. 19. This Court is of the view that the injuries as found by the Doctor do reflect that the incidence took place in which the informant was assaulted, but there is nothing on record to draw an inference that the intention of assault was to cause death and, therefore, conviction under Section 307 of the Indian Penal Code being not sustainable is accordingly set aside. 20. On perusing the evidence of the witnesses in its entirety, this Court is of the view that prosecution has proved the charge beyond shadow of reasonable doubt under Section 324/34 of the Indian Penal Code against the appellant(s)/ accused. 21. As far as offence of theft is concerned, this being uncorroborated statement of the informant by any other witness cannot be accepted. 21. As far as offence of theft is concerned, this being uncorroborated statement of the informant by any other witness cannot be accepted. Furthermore, there is no allegation that the accused persons had entered into the house to commit theft, but it has been added in the prosecution story that while returning from there, accused, Bhirgu Mahto also took purse of the informant containing Rs.451.50/-. Conviction of Bhirgu Mahto under Section 379 of the Indian Penal Code is accordingly set aside. 22. In the result I find and hold Appellants guilty for offences under Sections 324, 341,504, and 452/34 of the Indian Penal Code and, accordingly, convicted under these sections. 23. On the point of sentence, considering the age, antecedent and overall facts and circumstance of the case, instead of sentencing the appellants to any term of imprisonment at this stage, they are directed to be released on executing a probation bond of Rs.25,000 each with two sureties of like amount each, for keeping peace and good behaviour for a period of one year under Section 4 of the Probation of Offenders Act. Both Cr. Appeals are dismissed with modification of finding and sentence.