Jharkhand High Court
Gullu Mahato Son Of Late Jhunu ... vs The State Of Jharkhand on 15 January, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 1054 of 2013
1. Gullu Mahato son of Late Jhunu Mahato
2. Bajendra Mahto son of Gullu Mahato
...... Petitioners
-Versus-
The State of Jharkhand ... ...Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Ms. Riya Narain, Amicus Curiae
For Opp. Party-State : Mr. Abhay Kr. Tiwari, A.P.P.
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Through Video Conferencing
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JUDGMENT
15/C.A.V. on 05.01.2021 Pronounced on 15.01.2021
Heard Ms. Riya Narain, the learned Amicus appointed by
this Court to argue this case on behalf of the petitioners.
2. Heard Mr. Abhay Kumar Tiwari, learned A.P.P.
appearing on behalf of the Opposite Party-State.
3. This criminal revision petition is directed against the
Judgment dated 26.08.2013 passed by the learned District &
Additional Sessions Judge-I, Dumka in Criminal Appeal No.
117 of 2010 whereby and whereunder the learned appellate
court confirmed the Judgment of conviction and the order of
sentence of the petitioners passed by the learned trial court and
dismissed the appeal.
4. The petitioners had preferred the criminal appeal against
the Judgment of conviction and the order of sentence dated
17.08.2010 passed by the learned Judicial Magistrate, 1st Class,
Dumka in G.R. Case No. 1359 of 2007/ T.R. Case No. 763 of
2010 (arising out of Jarmundi P.S. Case No. 212/2007 dated
20.10.2007) whereby and whereunder the petitioners were
convicted under Sections 324/323/34 of the Indian Penal Code
and were sentenced to undergo Rigorous Imprisonment for 20
days under Section 323 of the Indian Penal Code and Rigorous
Imprisonment for 02 months under Section 324 of the Indian
Penal Code. It was directed that both the sentences will run
concurrently and the period undergone for detention shall be
set off as per law.
Arguments on behalf of the petitioners
5. The learned Amicus appearing for the petitioners
submitted that all the prosecution witnesses are hearsay
witnesses. She further submitted that P.W.-1 has stated that
when he came to the place of occurrence, the victim was lying
injured on the floor and accordingly, P.W.-1 had not seen the
occurrence. She submits that P.W.-3 is the brother of the victim
and is an interested witness. She further submitted that P.W.-5
is the Doctor who had examined the informant/victim and he
deposed that the injury was simple. She also submitted that X-
ray report was not exhibited before the learned trial court. She
submitted that there is long standing enmity between the
accused and the informant party and the petitioners have been
falsely implicated in the case. She further submitted that both
the learned courts have failed to appreciate the evidences
properly and therefore, both the impugned judgments are
perverse and are fit to be set aside.
Arguments on behalf of the Opposite Party-State
6. Learned A.P.P. appearing on behalf of the Opposite
Party-State, on the other hand, submitted that the victim of the
incident is the informant of the case who has been examined
before the learned trial court and was fully cross-examined on
behalf of the defence and he has fully supported the
prosecution case and his evidence is fully corroborated by the
evidence of the Doctor who stated that there was sharp cutting
injury. He further submitted that concurrent findings of facts
have been recorded by the learned courts below and the basic
ingredients of the offences for convicting the petitioners have
been satisfied and accordingly, no interference is called for in
the revisional jurisdiction. The learned A.P.P. further submitted
that he has filed a counter-affidavit in the present case
indicating that the petitioners have already served the
sentences awarded to them.
Findings of this Court
7. After hearing the learned counsel for the parties and
going through the impugned judgments as well as the lower
court records of the case, this Court finds that the prosecution
case is based on the written report of the Informant namely,
Falali Mahto (P.W.-4) submitted on 20.10.2007 before the
Officer-in-charge, Jarmundi P.S., Dumka alleging inter-alia that
on 20.10.2007 at about 03:30 A.M., when the Informant was
trimming grass in front of his house, his gotiya Gullu Mahto
and his son Bijendra Mahto came there abusing him. When the
son of the Informant caught him, Gullu Mahto assaulted the
Informant by means of 'dab' causing bleeding injury on his
head. When the Informant began to weep and cry, his younger
brother Chhedan Mahto came there to save him and Gullu
Mahto hurled the 'dab' over Chhedan Mahto who caught the
'dab' which caused cut injury on his palm.
8. On the basis of the written report, the case was registered
as Jarmundi P.S. Case No. 212/2007 dated 20.10.2007 under
Sections 341, 323, 324, 504/34 of the Indian Penal Code against
the petitioners and after completion of investigation, charge-
sheet was submitted against them under the same sections and
thereafter, on 17.01.2008, cognizance of the offence was taken
against them under the same sections.
9. On 30.04.2008, the charges under Sections 341/34, 323/34,
324/34 and 504/34 of the Indian Penal Code were framed
against the petitioners which were read over and explained to
them in Hindi to which they pleaded not guilty and claimed to
be tried.
10. In course of trial, the prosecution examined altogether
five witnesses to prove the charges against the petitioners.
P.W.-1 is Sunil Mandal who is an independent witness, P.W.-2
is Kalika Devi who is the wife of the Informant, P.W.-3 is
Chhedan Mahto who is the brother of the Informant, P.W.-4 is
Falali Mahto who is the injured Informant of the case and P.W.-
5 is Dr. Shambhunath Ghosal who had medically examined the
injured Informant. The prosecution exhibited the signature of
the Informant on the written report as Exhibit-1 and the injury
report of the Informant as Exhibit-2 as documentary evidences.
11. On 15.07.2010, the statements of the petitioners were
recorded under Section 313 of Cr.P.C. wherein they simply
denied the occurrence. The petitioners did not adduce any oral
or documentary evidence in their defence.
12. This Court finds that the learned trial court considered
the oral and documentary evidences adduced on behalf of the
prosecution and summarized its findings in Para-8 which reads
as under:
"8. Thus all the witnesses have categorically stated that
Gullu Mahto and Bajendra Mahto with common intention
assaulted the Informant and his brother. It is brought on record
that accused persons are the Gotiyas and they assaulted the
informant when he was trimming grass in front of his house.
P.W.-4 Falali Mahto in his cross-examination has stated that
accused persons have also filed one case against them being no.
213/07 pending in the court of Sri Alok Kr., J.M. Ist Class. But
P.W.-1 Sunil Mandal who is the independent witness has
stated that he did not see any injury on the person of Gullu
Mahto. The doctor who is the material witness has supported
that Falali Mahto sustained injury on his head and was treated
by him. Thus, it is well proved that the accused persons above
named assaulted the informant with common intention by
sharp cutting weapon due to which head of the informant
started bleeding and he was treated by the doctor. As far as
other sections are concerned, prosecution has failed to prove the
charges against the accused persons u/ss. 341 and 504 of the
I.P.C.."
13. The learned appellate court also discussed the
prosecution evidences in detail and considered the arguments
advanced on behalf of the petitioners and recorded its findings
in Para-11 which reads as under:
"11....................................... There are ample & cogent
evidences on record to establish the charges against the
appellants. The appellants / defence is not highly prejudiced as
there is no contradiction in the testimony of the prosecution
witnesses and further there is no different P.Os., rather only
one P.O. as projected by the prosecution which got full support
from the evidences of the P.Ws.. There are quite consistent
statement on the point of P.O.. Further the ruling as reported
in 2003(2) JCR 392 (Jharkhand) is not helpful for the
appellants, rather helpful for the prosecution. It is not
applicable in this case on the point of getting benefit U/s. 360
Cr.P.C./probation of Offenders Act to the appellants as the case
in hand, the appellants are not student, but in the case reported
in the ruling, the appellants were students and first offenders.
The prosecution case got support & full corroboration of the
testimony of the prosecution witnesses by the medical evidence
and there is specific allegation against the appellant for
assaulting the injured which was fully supported by the
informant / injured witnesses. Further, the prosecution case got
full corroboration by the medical evidence vide evidence of
P.W.-5 and Exbt.-2. There is opinion of medical evidence that
the appellant Gullu Mahto inflicted injury on the person of the
injured/informant by sharp cutting weapon. The principles laid
down in this ruling that on the basis of these evidences,
conviction rightly passed by the trial court. Thus, this ruling
supports the prosecution case. It is true that the appellants are
first offenders, but they are not students. In the case cited in the
ruling, the appellants were students and first offenders and as
such, the ruling cited by the learned lawyer of the appellants is
not helpful for them, rather for the prosecution. The other
ruling such as: 2007(3) JLJR Page 502 (Jharkhand) is also
not applicable in this case as in the case in hand, the
independent witness has been examined vide P.W.-1 and there
is no delay in lodging the case. Further injury report proved by
doctor has supported the prosecution case on the point of on the
injury received by the informant / injured. The ruling as
reported in 2007(4) East Criminal Case 322 (Jharkhand) is
also not applicable here as the appellants have not suffered any
detention/custody & long period of trial and further there is eye
witness of the occurrence. Furthermore, the conviction has been
affirmed in the ruling, but sentence has been modified. The case
in hand is on different footing as the case reported in the ruling
and as such, this ruling is not helpful for the appellants. The
learned lawyer of the appellants further argued that the
prosecution witnesses including the informant has given their
statements before the court first time and not before the police
and as such, the law laid down in the ruling such as 2006(1)
Eastern Criminal Case Page 290 (Patna), the appellants are
liable for acquittal by giving benefit of doubt. The
informant/witness deposed before the court for the first time &
not save to rely on such statement. But in the case in hand, the
informant/injured has given written report of the occurrence
which has been proved by this witness (P.W.-4)
informant/injured vide Exbt.-1 and as such, it cannot be said
that the injured/informant has given his evidence before the
court for the first time and has not given statement before the
police. Thus, this ruling is also not applicable in this case and
helpful for the appellants. So far enmity is concerned, on this
ground only, the prosecution case cannot be disbelieved. It is
settled principle of law that enmity is double edged weapon &
can be used either side."
14. This Court finds that P.W.-4 is the injured Informant of
the case. He deposed that the occurrence took place one year
three months ago on Saturday at 03:30 P.M. and Bajendra
Mahto came by abusing him and caught him and Gullu Mahto
came following him and assaulted him by 'hasua' on his head
causing cut injury on his head. He further deposed that his
younger brother Chhedan Mahto came to save him, then he
also assaulted him on his hand causing cut injury. He identified
his signature on the written report as Exhibit-1. He identified
Gullu Mahto in court and claimed to identify the other
petitioner. In cross-examination, he admitted that for the same
incident, the petitioners have filed Case No. 213/2007 and he
has given a detail description of the place of occurrence. This
Court finds that no material facts have been taken on behalf of
the petitioners to discredit the testimony the injured informant
(P.W.-4) who has fully supported his version stated in his
written report and therefore, his evidence is fully trustworthy
and reliable.
15. This Court further finds that P.W.-5 is the doctor who had
examined the injured Informant on 20.10.2007 and had found
the following injuries: (1) One sharp cut wound - size 1 ¾" x
¼" x ¼" over vertex in the midline with fresh blood oozing
from margins of the wound. This witness further deposed that
the age of injury is within 06 hours of examination and the
injury was simple caused by sharp instrument. He exhibited the
Injury Report as Exhibit-2.
16. This Court further finds that P.W.-1 is an independent eye
witness to the occurrence and he has corroborated the injury
received by the injured informant and has also given detail
description of the place of occurrence. P.W.-2 and P.W.-3 have
also corroborated the occurrence as well as the injury of the
informant caused by the Petitioner No.1-Gullu Mahto and he
has also given detail description of the place of occurrence.
P.W.-3 is also an eye witness to the occurrence. This Court finds
that P.W.-1, P.W.-2 and P.W.-3 had seen the injury on the
person of the Informant at the time of the occurrence.
17. This Court is of the considered view that P.W.-1, P.W.-2
and P.W.-4 have proved the place, date, time and the manner of
the occurrence and P.W.-1, P.W.-2, P.W.-3, P.W.-5 and the
Injury Report of the Informant (Exhibit-2) have fully
corroborated the prosecution case on the point of injury
received by the Informant. The informant has been thoroughly
cross-examined by the defence and his evidence remained
consistent on the point of his injury and also the occurrence.
18. This Court finds that both the learned courts below have
carefully scrutinized the evidences of the prosecution witnesses
and have recorded consistent and concurrent findings of facts
after properly considering the evidences available on record
including the medical evidence and have found sufficient
evidence for conviction of the petitioners under Sections
324/323/34 of the Indian Penal Code.
19. Considering the entire facts and circumstances of this
case, this Court finds that the contradictions pointed out on
behalf of the petitioners are not material contradictions to draw
any conclusion of illegality or perversity in the impugned
judgments.
20. This Court finds that both the learned courts below have
passed well-reasoned judgments considering every aspect of
the matter and every argument advanced on behalf of the
petitioners and there is no illegality or perversity in the
impugned judgments and accordingly, there is no scope for re-
appreciation of evidences for any interference in revisional
jurisdiction.
21. Accordingly, the judgment of conviction and the order of
sentence of the petitioners passed by the learned trial court and
confirmed by the learned appellate court is hereby upheld and
the present criminal revision petition is hereby dismissed.
22. Pending interlocutory application, if any, is dismissed as
not pressed.
Appreciation for Amicus Curiae and Payment:
23. This Court observes that vide order dated 28.02.2020, Ms.
Riya Narain, Advocate was appointed as Amicus Curiae in this
case by this Court. This Court records its appreciation for the
valuable assistance accorded by the learned Amicus Curiae in
final disposal of this case. The Secretary, Jharkhand High Court
Legal Services Committee is directed to ensure that the legal
remuneration of the learned Amicus Curiae is duly paid to her
within a period of 4 weeks upon submission of bills by her.
24. The office is directed to provide a copy of this order to
Ms. Riya Narain, the learned Amicus Curiae and also to the
Secretary, Jharkhand High Court Legal Services Committee.
25. Let the lower court records be sent back immediately to
the court concerned.
26. Let a copy of this order be communicated to the learned
court below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.)
Saurav/
