Ajay Mandal vs The State Of Jharkhand
2021 Latest Caselaw 794 Jhar

                                  [1]


     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Cr. Appeal (S.J.) No. 320 of 2010
(Against the judgment of conviction and the order of sentence, both dated 16.03.2010,
passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Dumka in
Special Case No. 06 of 2002)
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Ajay Mandal, son of Gaya Mandal, resident of Village Jarmundi Bazar, P.S.- Jarmundi, District- Dumka (Jharkhand) ...... ..... Appellant Versus-

The State of Jharkhand                                     ......   ..... Respondent


                        Heard through Video Conferencing
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CORAM: HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant           : Ms. Chaitali C. Sinha, Amicus Curiae
For the State               : Mrs. Lily Sahay, APP
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Heard Ms. Chaitaili C. Sinha, the learned Amicus Curiae as well as Mrs. Lily Sahay, the learned APP.

2. The present appeal is preferred against the judgment of conviction and the order of sentence both dated 16.03.2010 passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Dumka in Special Case No. 06 of 2002 arising out of Jarmundi P.S. Case No. 85 of 2000, G.R. Case No. 579 of 2000, whereby and whereunder, the appellant was convicted under Section 323 of the Indian Penal Code and sentenced to RI for three months.

3. The case of the prosecution, in brief, as per the fardbeyan dated 10.06.2000 of the informant PW-4 Babulal Murmu is that on 09.06.2000 at about 06:30 pm the informant was returning to his house after marketing from Jarmundi hatia (market). When the informant reached to Baltikari Dangal, he saw the accused Ajay Mandal, Magan Mandal, Ino Pasi along with 15-20 persons armed with sickle, fasuli and danda standing there and were saying to tribes, who were going from the way, that see santhals are going and no Santhals should be escaped. Ajay Mandal was armed with [2]

sickle, Ino Pasi and Magan Mandal, both were armed fasuli and other were armed with lathi, danda and sickle. Informant further stated that on seeing them the accused persons ran towards the informant and Ajay Mandal put sickle on the neck of the informant and told to kill the informant. Then other accused persons started assaulting the informant with lathi, danda and fist. Informant resisted by applying force with both his hands and pushed Ajay Mandal and ran away to save his life. Three other persons named Khuriya Murmu, Sunil Murmu (PW-1) and Gudai Murmu (PW-5) were also assaulted by the accused persons. When the informant returned back to his village, he received information that Sunil Murmu has been assaulted by fasuli on his head and he is in serious condition and Gudai Murmu, in an injured and unconscious condition is laying in Baltikari Dangal and then informant along with Murari Hansda, Modi Hembrom, Guru Murmu, Nigla Murmu and 25-30 persons went to Baltikari Dangal to see Gudai Murmu and found him in injured and fallen in an unconscious condition. Villagers took him to the Jarmundi Government Hospital. Informant further stated that before this occurrence a quarrel had taken place between the tribes of village-Hatakund and accused persons Magan Mandal, Ajay Mandal, Ino Pasi etc. and for revenge Ajay Mandal ganged up with 15-20 persons and started assaulting the Santhalis.

4. On the basis of the fardbeyan of the informant Jarmundi P.S. Case No. 85 of 2000 was registered under Sections 147, 148, 149, 341, 323, 324 and 307 of the Indian Penal Code and Section 3 (x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the accused persons. After investigation the police submitted the charge sheet under sections 147, 148, 149, 323, 324 and 307 of IPC and section 3(x) (ix) of SC and ST Act, against the accused persons. Cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed against the four accused persons including the appellants under Sections 148, 149, 323, 324 and 307 of IPC and under Section 3 (x) of the SC and ST Act. Trial was held against the three accused persons including the appellant and at the conclusion of the trial two of the accused persons were acquitted of all the charges but the appellant was acquitted of the other [3]

charges but was convicted under Section 323 IPC and sentenced as aforesaid. Hence, this appeal.

5. Prosecution in order to prove its case had examined six witnesses out of whom PW-4 Babulal Murmu is the informant of the case; PW-1 is Sunil Murmu; PW-2 is Huria Soren; PW-3 is Barbas Murmu; PW-5 is Gudai Murmu and PW-6 is Birsa Toppo, who is the Investigating Officer of the case.

6. PW-4 Babulal Murmu, is the informant of this case. Informant has stated in his evidence that on the day of occurrence he along with his friend had gone to Jarmundi haat. At about 06:00 pm in the evening, they were returning after marketing and when they reached Baltikari Dangal, he saw Ajay Mandal, Mangru Mandal, Ino Pasi and Manoj standing there armed with lathi, sickle and fasuli and were saying that if any tribes will come, they will be killed. Informant further stated that Ajay Mandal put sickle on his neck and his friends assaulted him with lathi, then he ran away to save his life. Sunil Murmu, Khuriya Soren and Udai Murmu were also with him and they were also assaulted by the accused persons. Udai Murmu was injured and due to bleeding he fainted. He was treated in hospital and he gave his statement in the hospital. Informant further stated that on the same day fighting occurred between Santhal tribes of Hatakund and Ajay Mandal, Magru Mandal, Ino Pasi and Manoj. A man in drunken state had fallen and accused were taking away his wrist watch at this the Santhal's objected due to which, accused persons started beating the Santhalis. Informant has proved his signature on the fardbeyan which was marked as Ext.-1. In his cross-examination, PW-4 stated that quarrel did not take place with them but firstly dispute occurred with the villagers of Harpur. He further stated that Ajay Mandal collects tax in the market, but there was no dispute regarding collection of Tax.

7. PW-1 Sunil Murmu has stated in his evidence that it was a hatiya (village market) day and he had gone to hatiya and at 6 p.m. he returned home from village market, then near Baltikari Ajay Mandal, Manoj Sharma, Magan Mandal, Ino Pasi had assaulted them. He further stated that the [4]

accused were armed with sickle, fasuli and knife. They told them Santhal and were saying to flee away. Ajay Mandal assaulted him with fasuli on the right side of head. PW-1 further stated that Gudai Murmu, after being assaulted, fainted and was taken to Jarmundi Hospital for treatment. Babulal Murmu and Khariya were on the spot and they were also assaulted by the accused persons. PW-1 identified the accused persons in the court. In his cross-examination PW-1 stated that in the occurrence of assault 15-20 persons were involved and he was assaulted by Ajay.

8. PW-2 is Huria Soren. He has stated in his evidence that on the day of occurrence he was returning to his house from hatiya at 06:30 pm. He further stated that he saw Ino Pasi, Ajay Mandal, Manoj Mandal near Baltikari Dangal. Ajay Mandal was armed with sickle and other persons were armed with bricks and stones. The accused persons were saying to kill Santhals. Ajay Mandal assaulted him with sickle due to which he sustained injury below his left eye. He further deposed that Babulal Murmu and Sunil Murmu were also along with him and accused persons also assaulted them. Gudai Murmu was also assaulted. PW-2 further stated that a drunkard Santhali of village-Harpur had fallen due to drinking and some persons were snatching his wrist watch and hence the accused persons assaulted the Santhalis. He was treated in Jarmundi Hospital. In his cross-examination PW-2 stated that the person whose watch was snatched did not give his statement in the police station.

9. PW-3 is Barbas Murmu. He has stated in is evidence that on the day of occurrence it was hatiya day and he was returning from hatiya. On the way there was dispute between Harilal Hembrom and accused persons Magru Mandal, Mangal Madiya and Ajay Mandal. Magru Mandal and Mangal Madiya assaulted him with lathi. In his cross-examination, PW-3 has stated that he was treated in hospital and on the next day police took his statement in the hospital.

10. PW-5 is Gudai Murmu. He has stated in his evidence that on the day of occurrence he was returning from Jarmundi haat along with Babulal and others. Ajay Mandal, Ino Pasi and Magru Mandal assaulted him with lathi [5]

due to which he sustained injury near his eyes. He was treated in Jarmundi Hospital. In his cross-examination he stated that his statement was not recorded by the police.

11. PW-6 is Birsa Toppo who is the Investigating Officer of the case. He has stated in his evidence that he had investigated the Jarmundi P.S. Case No. 85/2000 related to Harijan Atrocities Case. PW-6 has proved the fardbeyan which was marked as Ext.-1/1 and formal FIR which was marked as Ext.-1/2. PW-6 further stated that he had gone to Jarmundi Hospital for taking statement of the injured. Investigating Officer stated that place of occurrence is village Baltikari, P.S. Jarmundi. At the place of occurrence there is a Peepal tree under which Harilal Hembrom was sleeping.

ARGUMENTS ON BEHALF OF APPELLANTS:-

12. Ms. Chaitali C. Sinha, the learned Amicus Curiae appearing on behalf of the appellant has first taken the court through the evidence of the prosecution witnesses and referred to the evidence of PW-4 Babulal Murmu, who is the informant of the case and pointed out that there are two disputes mentioned regarding the incident. One is that a watch was being snatched from a person, who was laying on the ground due to which tensions arose and the other is that prior to the incident an altercation had taken place between tribes of village-Hatakund and Magru Mandal, Ajay Mandal, Ino Pasi etc. due to which the occurrence of assault took place. Amicus further submitted that out of 15 to 20 persons, none of them have been made prosecution witnesses. Amicus has then referred to the evidence of PW-1 Sunil Murmu and submitted that in his evidence PW-1 has stated that 15-20 involved persons were involved in assault and if PW-1 was assaulted by such number of persons, then it was impossible for PW-1 to run away but PW-1 has deposed that he flee away to his home.

13. Regarding the evidence of PW-2 Huriya Soren, the amicus submitted that in the fardbeyan his name does not figure as one of the injured but nevertheless he has been made a witness at the stage of the trial and PW-2 deposed that Ajay Mandal assaulted him with sickle. Hence, PW-2 is highly unreliable witness. Regarding the evidence of PW-3 Barbas Murmu, the [6]

learned counsel submits that PW-3 has not mentioned Ajay Mandal in his evidence but has mentioned other two persons. But, this witness was also not named in the fardbeyan by the informant as an injured or witness to the occurrence of assault and therefore, from the evidence of PW-3 the involvement of the appellant Ajay Mandal is doubtful and therefore, his conviction is also doubtful. Amicus has then referred to the evidence of PW-5 Gudai Murmu and submitted that he has deposed that he was assaulted by the appellant, Ino pasi and Mangru Mandal with lathi however, this is not corroborated by any injury report. Amicus also submitted that as per the evidence of prosecution witnesses as many as five witnesses were injured but there is no injury report and no doctor was examined. Amicus submission is that when so many injuries were inflicted upon so many persons, then at least some injury report should be on record but no any injury report has been exhibited by the prosecution.

14. After pointing out defects and contradictions in the evidence of the prosecution witnesses, amicus has then argued that charges were framed under sections 148, 149, 323, 324 and 307 of the Indian Penal Code and section 3(X) of Harijan Atrocities Act and trial was held against three accused persons including the appellant but two accused persons were acquitted of all the charges but appellant was convicted only under section 323 of IPC and appellant was acquitted of all the other charges. Hence, amicus submitted that section 307 IPC was a crucial section and if the other accused persons including the appellant have been acquitted of all sections then why the appellant herein was the only one, who was convicted for the offence under Section 323 of the Indian Penal Code. Amicus argues that when so many sections have not been substantiated then the assault made by this appellant on the injured also stand fully negated and on that basis the offence under Section 323 of the Indian Penal Code should also not be maintained. The question does arise that if all others charged accused have been acquitted then, how on similar circumstances and similar evidences this appellant remain convicted.

15. The learned Amicus Curiae has further submitted that the only accusation against the appellant is that he put a sickle to the neck of the [7]

informant and it is clear that he did nothing after that. The question thus arises what hurt did he cause to the informant or the others and that too when there is no any injury report. Amicus also submitted that Khuriya Murmu, Murari Hansda, Modi Hembrom, Guru Murmu and Nigla Murmu, whose names have been referred to in the fardbeyan were not examined. Amicus submits that if the incident was true, then these other persons named in the fardbeyan would surely been examined as prosecution witnesses.

16. The learned Amicus Curiae has further argued that why the occurrence happened has not been adequately explained by the prosecution as the two incidents attributed do not indicate sufficient cause of the incident leading to occurrence of assault. Amicus says that one of the incident as per the fardbeyan is drunken person presumably a tribe was laying on the ground from whom his wrist watch was being tried to be snatched and on protest by Santhals, tensions arose and the other is prior to this incident an altercation took place between Santhal and non-Santhal due to which again protest and tension arose and then this alleged particular incident occurred. Amicus says that no proper motive has been ascribed and two incidents which were ascribed lead to doubt in the prosecution case. Amicus once again argued that there were 15-20 other accused persons armed with sickle, fasuli, danda and lathi, who could have inflicted the injury, but it is not possible to attribute hurt only to this appellant when there were others and thus, convict him alone under Section 323 of the Indian Penal Code which is not proper.

17. The learned Amicus Curiae lastly submitted that more so, particularly, there is no injury report or doctor was examined to indicate or prove any injury or even simple injury or hurt that could come within Section 323 of the Indian Penal Code. Therefore, based on the doubts about assault and injuries, the conviction of the appellant is not sustainable and shall be set-aside by this court.

ARGUMENTS ON BEHALF OF STATE:-

18. Mrs. Lily Sahay, the learned APP has argued that it has been fully [8]

revealed that the fight with Harilal Hembrom was over a dispute and the genesis of this occurrence regarding the present appeal was the issue of the wrist watch being snatched from a person, who was drunk and laying. The learned APP further submits that it has clearly been indicated in the fardbeyan and deposition of the informant PW-4 that appellant Ajay Mandal had hooked the sickle to the neck of the informant and instigated others to attack. Regarding the argument that the signature of the informant was taken on a blank paper and the fardbeyan was not read over to him, counsel points out that from the cross-examination of the informant it can be fully concluded that the prosecution case is based on the fardbeyan of the informant and he had signed over it and informant has supported his fardbeyan in his deposition.

19. Learned APP further argued that PW-1, PW-2 and PW-5 are also an injured witnesses and they have deposed that they were assaulted by the appellant Ajay Mandal. From the evidence of the PW-6 Investigating Officer it is apparent that he had visited the place of occurrence and hence, place of occurrence is also proved. Learned counsel for the State has also cited a judgment passed by the Hon'ble Allahabad High Court in the case of "Radhey Vs. State" reported in (1970) CRI.L.J 1544, and pointed out that in the present case apart from the injury caused to the informant, PW-2 had also sustained injury below his left eye, would also lead to sustain the conviction of the appellant.

FINDINGS

20. Having heard both counsels, having gone through the records of the case and the evidences, I find that three accused persons were tried for the charges under Sections 307, 323, 324, 148 and 149 of IPC and Section 3 (x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 but, two accused persons were fully acquitted of the charges, but appellant was convicted only under section 323 of IPC and he was acquitted of all the other charges.

21. On going through the deposition of the informant PW-4 Babulal Murmu, I find that informant has deposed that he was assaulted with lathi.

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Further, on perusal of the evidence of PW-1 and PW-5, I find that PW-1 has deposed that appellant had assaulted him by sickle on the right side of his head and PW-5 has deposed that he was assaulted by the appellant and two other accused persons with lathi as a result he sustained injury near his eyes. Sickle is a dangerous weapon and PW-1 was said to be assaulted by sickle on his head but, injury report of alleged injured PW-1 was not exhibited. Further, the injury report of other two injured i.e. informant PW- 4 and PW-5 were also not exhibited and the doctor was also not examined to prove the alleged injuries on these three injured PW-1,PW-4 and PW-5. Hence, due to non-exhibition of injury report of the alleged injured PW-1, PW-4 and PW-5, weakens the case of the prosecution.

22. Apart from the three injured PW-1, PW-4 and PW-5 mentioned in the preceding para, I find that PW-2 Huria Soren and PW-3 Barbas Murmu have been examined by the prosecution and both have deposed that they had also sustained injuries in the assault. But, neither the informant had named them in his fardbeyan as injured or as witness to the occurrence of assault nor their names figure in the charge sheet in the list of witnesses and both PW-2 and PW-3 have been examined or imposed as a witness during the trial, which makes the prosecution case further doubtful.

23. Further, PW-3 Barbas Murmu has deposed that there was dispute between accused persons and one Harilal Hembrom and Investigating Officer or PW-6 of the case has also deposed that Harilal Hembrom was sleeping under the Peepal tree at the place of occurrence. But, this Harilal Hembrom was not examined by the prosecution though he is a charge sheet witness. Examination of Harilal Hembrom was essential to know the reason of dispute between the parties and hence ascertaining the motive of assault, but, prosecution did not examine Harilal Hembrom.

24. In summing up, out of six witnesses examined by the prosecution, five witnesses in series i.e. PW-1, PW-2, PW-3, PW-4 and PW-5 have deposed that they were assaulted by sickle and lathi and had sustained injury. Informant has named four accused persons including the appellant as an assailant and has stated in his fardbeyan that 15-20 other persons were [10]

involved in the assault on them. But, surprisingly prosecution has not exhibited any injury report or medical evidence to support its case. So, for the aforesaid reasons, appellant Ajay Mandal is acquitted of the charge under section 323 of IPC by giving benefit of doubt.

25. Accordingly, impugned judgment of the conviction and the order of sentence, both dated 16.03.2010, passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Dumka in special Case No. 06 of 2002 arising out of Jarmundi P.S. Case No. 85 of 2000, G.R. Case No. 579 of 2000 cannot sustain and are hereby set-aside. Appellant Ajay Mandal is discharged from the liability of bail bonds.

26. This Court appreciates the assistance rendered by Ms. Chaitali S. Sinha, the learned amicus curiae, who assisted the Court. Member Secretary, JHALSA is directed to pay remuneration to Ms. Chaitali S. Sinha, the learned Amicus Curiae, as per rules.

27. Accordingly, this appeal is allowed.

(Ratnaker Bhengra,J.) Jharkhand High Court, Ranchi, Dated 19th February, 2021 Nibha/Madhav- NAFR