Kripa Mahto vs The State Of Jharkhand
2021 Latest Caselaw 1107 Jhar

                                      1


            IN THE HIGH COURT OF JHARKHAND AT RANCHI

                       Cr. Appeal (S.J.) No. 749 of 2002
(Against the Judgment of conviction and order of sentence dated 24.09.2002
passed by the learned Additional District and Sessions Judge, Fast Track
Court -Vth, Giridih in Sessions Trial No. 63/91)
                                             ...

1. Kripa Mahto

2. Tulsi Mahto

3. Ruplal Mahto

4. Pritam Mahto All are sons of Murat Mahto, resident of village-Hirodih, PS-Hirodih, Dist.-Giridih. ... Appellants

-Versus-

The State of Jharkhand                                   ... Respondent
                                 ....
CORAM :- HON'BLE MR. JUSTICE RATNAKER BHENGRA
                                 ...

For the Appellants : Mr. Ram Lakhan Yadav, Advocate.

       For the State      : Mrs. Priya Shreshtha, A.P.P.
                                ...
CAV on: 20/09/2019                            Pronounced on:05/03/2021
Ratnaker Bhengra, J:
      Heard the parties.

2. This criminal appeal is directed against the Judgment of conviction and order of sentence dated 24.09.2002 passed by the learned Additional District and Sessions Judge, Fast Track Court -Vth, Giridih in Sessions Trial No. 63/91, whereby and where under, the learned court below has convicted the appellant No. 2 Tulsi Mahto and appellant No.3 Ruplal Mahto for the offence under Sections 148, 341 and 324 of IPC and sentenced them to undergo RI for one year under Section 148 of IPC, one month under Section 341 of IPC and RI for three years under Section 324 of IPC. Appellant No. 3 Ruplal Mahto was further convicted for the offence under section 325 of IPC and sentenced to undergo RI for three years. Appellant No.1 Kripa Mahto has been convicted under Section 307 and 341 of IPC and sentenced to undergo RI for three years under section 307 of IPC and Appellant No. 4 Pritam Mahto has been convicted under Sections 341 and 323 of IPC and sentenced to undergo RI for one month under Section 341 of IPC and one year under Section 323 IPC. All the sentences were directed to run concurrently.

3. However, as per communication received by letter No. 3586/2019 dated 23.07.2019 from Principal District and Session Judge, Giridih wherein

it is stated that Appellant No.1 Kripa Mahto and Appellant No. 4 Pritam Mahto have passed away. Hence, appeal qua Appellant No.1 Kripa Mahto and Appellant No. 4 Pritam Mahto stands abated.

4. The prosecution case, in brief, as per the written report dated 04.10.1990 of the informant of Deo Narayan Prasad Verma PW-3 is that on 04.10.1990 his father Kishun Mahto was ploughing the land situated in village Jamdiha. In the meantime five accused persons 1. Kripa Mahto, 2. Tulsi Mahto, 3. Ruplal Mahto, 4. Pritam Mahto and 5. Murat Mahto armed with lathi and tangi came there and said his father "why are you ploughing this land?" On this his father replied "the field is mine, why I shall not cultivate it". Thereupon, accused No.2 Tulsi Mahto tried to cut Kishun Mahto's right leg's knee with axe, but his father somehow saved himself. In course thereof, he received bleeding injuries on his knee and blood oozed out. Thereafter, accused Ruplal Mahto gave tangi blow on the left forearm of his father as a result his left arm was broken and blood oozed out. The accused Pritam Mahto and Murat Mahto (since died) assaulted informant's father with lathi on his back and other portion of his body causing swelling over the body and his father fell down on the ground. Then, the accused No.1 Kripa Mahto started to strangulate his throat with a gamcha around his neck with intention to kill him. On hulla of informant's father witnesses, namely, Parmeshwar Mahto, Magister Singh, Babu Singh, Most. Sabo Devi, Most. Chura Devi and Kishun Singh reached there and rescued him.

5. On the basis of written report, Giridih Sadar P.S. case no. 41/ 1990 dated 04.10.1990 under Section 147, 148, 149, 323, 324, 341 and 307 of IPC was registered against the accused persons. After completing the investigation, charge sheet was submitted and cognizance of the offences were taken and the case was committed to the Court of Sessions. Charges were framed against all the accused persons under section 148, 341 and 307 of IPC. Accused Tulsi Mahto and Ruplal Mahto were separately charged under section 148 of IPC and accused Ruplal Mahto was also charged under section 325 of IPC. Trial was held and at the conclusion of the trial the accused persons or the appellants herein were convicted and sentenced as aforesaid. Hence, this appeal.

6. The prosecution has examined altogether four witnesses in order to prove its case out of whom PW-3 Deo Narayan Prasad Verma is the informant of the case; PW-1 is Babu Singh; PW-2 is Majister Singh; PW-4 is

Dr. Suresh Brahmachari who had examined the injured.

7. Defence has produced documentary evidence, which is Certified copy of judgment of the Judicial Magistrate 1st class, Giridih passed in complaint case no. 707 of 1990/ T.R. case no. 111 of 1996 which was marked as Ext.- A.

8. PW-3 Deo Narayan Prasad Verma is the informant of the case. He has stated in his evidence that the occurrence is of 04.10.1990 at about 7 a.m. in the morning. On that date, he was in his field and his father was ploughing the adjoining field. In the meantime, the accused Kripa Mahto, Tulsi Mahto, Ruplal Mahto, Pritam Mahto and Murat Mahto came there and prevented his father from ploughing the field. His father resisted where upon accused Ruplal Mahto and Tulsi Mahto, armed with tangi started assaulting him. Accused Tulsi Mahto gave tangi blow on the knee of the right leg of his father as a result he sustained injury. Accused Ruplal Mahto gave tangi blow on his father's left hand elbow causing fracture of his hand. The remaining accused persons armed with lathi and danda assaulted his father with lathi and danda as a result his father fell down. Thereafter the accused Kripa Mahto started strangulating the throat of his father with gamcha around his neck as a result of which he became restless. Informant has further deposed that he and the villagers rescued his father. Informant has proved his written report which was marked as Ext.1. He has further deposed that his father was treated at Giridih Sadar Hospital. In his cross-examination informant stated that his father became unconscious at the place of occurrence.

9. PW-4 Dr. Suresh Barahamchari had examined the injured Kishun Mahto, aged about 55 years, on being referred from Primary Health Centre, Jamua. Doctor on examination, had found the following injuries on the person of Kishun Mahto:

(i) Multiple abrasion over left leg 1/2" x 1/4" to 3/4" x 1/4"

with swelling of the whole of left leg and feet, three in number;

(ii) An incised wound ½" x ¼" x skin deep over the web space between left little toe and adjacent toe on the left side;

(iii) Two incised wounds ½" x ¼" x skin deep over right leg with swelling of calf;

(iv) A lacerated wound ½" x ¼" x over left forearm with tenderness over mid part. Radiological fracture of saft of left radius;

(v) Swelling of neck with pain;

(vi) Linear abrasion ¼" over right side of the nose;

(vii) A bruise 4" x 1" over right lower chest;

(viii) A linier abrasion ¼" on the left middle finger and little finger right.

Doctor opined that injury no.4 was grievous in nature whereas the rest injuries were of simple in nature and injury no.2 and 3 were caused by sharp-cutting weapon and the rest injuries were caused by hard and blunt weapon. Doctor has proved the injury report of Kishun Mahto which was marked as Ext.-2.

10. PW-1 Babu Singh did not stated anything about the occurrence and and PW-2 Majester Singh was declared hostile.

Arguments of learned counsel for the appellants:

11. Mr. Ram Lakhan Yadav, learned counsel for the appellants submitted that the entire case stands on the basis of the evidence of PW-3, the informant, who is the son of the injured therefore informant is highly an interested witness and hence, his trustworthiness and credibility must be tested at first because none of the witnesses have supported the version of PW-3, nor the independent witnesses been examined by the prosecution.

12. Learned counsel further submitted that in the written statement which is in the hand writting of the informant but in his written report the informant or P.W.3 has not stated that he was at the place of occurrence as informant has said that he came at place of occurrence on alarm. But in his evidence, informant has stated that he was at the place of occurrence. Learned counsel further submitted that Parmeshwar Mahto, Most. Sabo Devi and Most. Chura Devi was not examined and the prosecution has not explained as to why these witnesses could not examined. Learned counsel further submitted that PW-3 was not been examined by the Investigating Officer at the place of occurrence in the field and hence, the veracity of the statement made by PW-3 could not be proved and it belies the prosecution story.

13. Learned counsel further submitted that PW-3 had left his father in the hospital and it cannot be believed that an injured person will stay in the hospital alone which also belies the prosecution story and therefore, informant or P.W.3 is not a trustworthy witness. PW-3 has denied litigation with appellant. This evidence is also contemptuous and PW-3 may be prosecuted for deposing false evidence since he has admitted in para-8 and 9

of his deposition that there exists a land dispute between them. Hence, PW-3 who is informant and son of the injured is not a trustworthy witness and therefore, his evidence cannot be relied upon. Learned counsel pointed out that the fact of enmity and existing land dispute are admitted and enmity cuts both ways so everything is possible where enmity is established which also proves that the appellants have been falsely implicated in this case.

14. Learned counsel also submitted that PW-1 Babu Singh has not been declared hostile and therefore, his evidences cannot be discarded and when two opinions are possible, benefit of doubts should be given to the appellants since PW-1 has not supported the prosecution case whereas PW-3 supports the prosecution case.

15. Learned counsel further submitted that though appellants have been convicted under several sections, but, while sentencing the appellants Section 34 or 120-B or 147 of IPC has not been added and hence, the conviction order is bad.

16. Learned counsel further submitted that alleged injured Kishun Mahto or father of the informant has not been examined and in absence of examination of the injured, it is impermissible to record the conviction against the appellant. Learned counsel has cited the case of "Siddapuram Siva Reddy versus State of A.P." reported in [1995 (1) ALT (Cri.) 71 (AP)]. In this case, there is no corroborative evidence. It is a theory in law that corroborative evidence has no meaning if substantial evidence is not there. In the case in hand, injured person has not been examined, hence, there is no substantial evidence.

17. Learned counsel also submitted that the Investigating Officer of this case has not been examined and therefore, the genesis of the occurrence, place of the occurrence and the referral slip of the Primary Health Centre, Jamua has not been proved where the father of the informant was given First Aid and the prosecution has not assigned the reason as to why the Investigating Officer has not been examined in this case to prove the veracity of above mentioned facts.

18. It is also submitted by learned counsel for the appellants that the evidence of the informant is not a reliable piece of evidence because it has not come in his evidence that while his father was being assaulted by lathi and by means of tangi what he was doing if he was present at the place of occurrence since the informant has not received even a single injury on his

person because a son cannot be standing as a spectator when his father was being assaulted by the appellants and, therefore, on this score the prosecution case seems to be false and concocted.

19. Learned counsel for the appellants further submitted that PW-3 has deposed that the appellants have assaulted the father of the informant by means of tangi, then it would be presumed that the assault was made by sharp side of the tangi until and unless it deposed specifically that the assault was made by the blunt portion or side of the tangi as has been held in the case of Mahadeo Kundalik Vaidya and Ors vs State of Maharashtra reported in 2001 CRI. L.J. 4306 (Bombay High Court) but the medical evidence does not support the evidence of PW-3.

20. Learned counsel further submitted that in the present case injury No.- IV, according to PW-4 or the doctor is grievous with lacerated wound ½" x ¼" over left forearms with tenderness over mid part and doctor stated that it was radiologically fracture of saft of left radius. But, it may not be possible by the sharp-cutting weapon, that is, axe and thus, the oral evidence of PW- 3 is not supported by medical evidence. Moreover, the X-ray plate was not produced in the Court, nor it has been exhibited and therefore, the consideration of radiologically fractured by the Court is bad in law.

21. Learned counsel further submitted that injury no.-III is two incised wound ½'' x ¼" x skin deep over the right leg with swelling of calf cannot be made by an axe because the injury is not on knee on right leg and the size which is mentioned in the medical evidence does not match with the sharp side of an axe and therefore, the medical evidence does not support oral evidence of the informant PW-3.

22. Learned counsel further submitted that linear abrasion may not be caused by an assault of lathi rather hematoma injury occurs when an assault is made by a lathi, which also belies the story of the prosecution.

23. Learned counsel further submitted that from the evidence it does not appear which party assaulted first and there is no cogent evidence on record to show that the appellants have assaulted the father of the informant or as a private defence they assaulted the injured or on the provocation of the injured the occurrence took place and therefore, where two views are possible, the appellants be not held guilty for the said offence. Arguments of learned counsel for the State:

24. Mrs. Priya Shreshtha , learned counsel for the State has argued that PW-3 Devnarayan Prasad Verma, who is the informant has totally supported the FIR in his evidence. There is entire corroboration of the FIR in the deposition of PW-3. Counsel further submits that it is to be noted that in the case in hand provocation was not from the side of the informant side rather provocation was from the side of accused persons or the appellants herein because it is clear from the evidence of PW-3 that it was the appellants who were carrying the tangi (axe) and hence, the informant's father sustained injuries due to assault and this has been proved in the evidence of the doctor. There was no corresponding injury report of any injury inflicted on the appellants in the counter case. The injury report or medical report which is marked as Ext.2 supports the assault and the injuries that have occurred as has been indicated in the FIR as well as in the evidence of PW-3. The injuries viz. Ext.-2 are reflective of assault by tangi as well as lathis resulting in incised wound and lacerations.

25. Learned counsel for the State further points out that the injury No.4, that is, the fracture can be attributed to Ruplal Mahto. Even in the impugned judgment it is indicated that the fracture is attributed to the assault by Ruplal Mahto and hence, conviction of the appellant Ruplal Mahto under Section 325 of IPC is fully justified.

26. Learned counsel for the State also argues that injury No.(iv) has been indicated as grievous by PW-4 or the doctor and Injury Nos. (ii) and (iii) are attributed to sharp-cutting weapon and the rest of the injuries have been attributed to hard and blunt substance. Learned counsel for the State submits that the injuries are fully caused by assault by lathis as well as tangies. Regarding the assault by Tulsi Mahto, learned counsel for the State argues that in the case of assault, the precise point of assault on the body may not be pinpointed, therefore, when it is said that Tulsi Mahto had assaulted on the leg then it can also mean that the injury either on the calf or even in the knee. Learned counsel for the State submits that the calf is very near the knee, hence, the injury on the leg matches the assault made by Tulsi Mahto. Therefore, the conviction of the appellant Tulsi Mahto under Section 324 of IPC is fully justified.

27. Learned counsel for the State also argues that the conviction under Section 148 of IPC is fully justified because it is indicated in the FIR and it is on record that initially they were five accused persons and one of them

had earlier passed away and subsequently, two of the appellants have passed away but in the evidence it has come that five accused persons, forming an unlawful assembly had arrived there with lathies and tangies, committed the assault. Therefore, the conviction under Section 148 of IPC is fully justified and then it may not be necessary to include Section 34 of IPC anyway in the conviction. Learned counsel for the State also argues that since there is a case and counter case there can be no denying that an occurrence had not taken place. Regarding as to who had initiated the aggression and who was provoked, in the evidence of the informant or PW-3 and in his written report, informant has stated that it was Kishun Mahto, who was ploughing the adjoining field, so the informant side could not have provoked for violence and, therefore, the remaining appellants stand fully guilty for the offences and deserve the accompanying sentences.

FINDINGS

28. Having heard the learned counsels and going through the records and evidences of the case, I find that occurrence of assault took place on 04.10.1990 and charges were framed against the appellant on 28.08.1997 but, sole injured Kishun Mahto (father of the informant) died before the framing of the charge and hence evidence of the injured Kishun Mahto could not be recorded. In this case appellant no.1 and appellant no. 4 have already passed away, so that leaves the remaining appellant no. 2 Tulsi Mahto and appellant no. 3 Ruplal Mahto. The learned court below has convicted the remaining appellant no. 2 and appellant no. 3 under sections 148, 341 and 324 IPC, whereas appellant no. 3 Ruplal Mahto was also convicted under section 325 IPC.

29. Regarding conviction of the appellant no. 2 and appellant no. 3 under sections 148, 341 and 324 IPC, I find from the fardbayan and evidence of informant P.W.3 that appellant no. 2 Tulsi Mahto tried to cut Kishun Mahto (informant's father) right leg knee with an axe, but his father anyhow saved himself but as a result of assault, he received bleeding injuries on his knee. Thereafter, appellant no. 3 Ruplal gave tangi blow on the left forearm of Kishun Mahto as a result his left arm was broken. P.W.4 or Doctor had examined Kishun Mahto and had found eight injuries on the person of Kishun Mahto out of which injury no. 2 and injury no. 3 were caused by sharp cutting weapons. Doctor found that injury no. 2 was an incised wound 1/2" x 1/4" x skin deep over the web space between the left little toe and

adjacent toe on the left side and injury no. 3 was two incised wounds 1/2 x 1/4 x skin deep over right leg with swelling of calf . So, ocular evidence of the informant is corroborated by the medical evidence of the doctor and hence, the charges under sections 148, 341 and 324 IPC against the appellant no. 2 and appellant no. 3 are proved.

30. Regarding conviction of appellant no. 3 Ruplal Mahto under section 325 IPC, I find that learned court below had convicted the appellant no. Ruplal Mahto under section 325 IPC for causing injury no. 4 to the injured Kishun Mahto. The injury no. 4 is lacerated wound 1/2" x 1/4" x over left forearm with tenderness over mid part. Radiological fracture of shaft of left radius. Learned counsel for the appellant has rightly submitted that informant has in his fardbayan as well as in his evidence stated that Ruplal Mahto had given tangi blow on his father's left hand elbow and so, there should be sharp cut injury but, the doctor had found lacerated wound over left forearm of the injured. Moreover, X-ray plate was not produced in the court and therefore, radiological fracture of shaft of left radius and opinion of doctor that injury no. 4 was grievous becomes doubtful. Hence, prosecution has failed to prove the charge under section 325 of IPC against the appellant no. 3 Ruplal Mahto.

31. Appellants had filed documentary evidence, which is Certified copy of judgment of the Judicial Magistrate 1 st class, Giridih passed in complaint case no. 707 of 1990/ T.R. case no. 111 of 1996 which was marked as Ext.- A. On perusal of Ext.-A, I find that for the same date of occurrence appellants had filed complaint case in which the informant and informant's father were accused and learned Judicial Magistrate 1st class had convicted them for the charges under section 323 and 427 IPC. Hence, there was a case and counter case between the parties and so, there is no reason to doubt the place of occurrence.

32. Appellants counsel's argument that conviction is defective or vitiated by not applying or including sections 34, 120-B or 149 IPC may have some force, but it cannot do away with the entire case against the remaining appellants or their convictions.

33. Learned counsel for the appellants had argued forcefully that the non- examination of the injured Kishun Mahto and non-examination of the Investigating Officer has caused prejudice to the appellants as examination of the injured and Investigating Officer of the case was crucial and without

his examination there is no corroboration. But, as matter relates to case and counter case and in the counter case, injured Kishun Mahto was an accused and he was convicted under section 323 and 427 of IPC by the court of learned Judicial Magistrate 1st class, Giridih in complaint case no. 707 of 1990/ T.R. case no. 111 of 1996 and hence non-examination of injured Kishun Mahto and non-examination of the Investigating Officer did not cause any prejudice to the appellants. Moreover, injury report or Ext.-1 of the injured was exhibited without objection in the trial and P.W.4 or the doctor had examined injured Kishun Mahto and found as many as eight injuries on his person.

34. Accordingly, impugned judgment of conviction dated 24.09.2002 passed in Sessions Trial No. 63/91 against the appellant no. 2 and appellant no. 3 under sections 148, 341 and 324 IPC is sustained and upheld but the conviction of the appellant no. 3 Ruplal Mahto under section 325 of IPC is set aside.

35. As far as sentence is concerned, I find that matter relates to case and counter case between both the parties and resulting in two judgments - one is the impugned judgment dated 24.09.2002 passed in S.T. Case no. 63/ 1991 arising out of Giridih Sadar P.S. case no. 41 of 1990 dated 04.10.1990 and the other judgment is Ext.-A (filed by the appellants party herein) which is judgment dated 12.02.1996 passed by Judicial Magistrate 1st Class, Giridih in complaint case no. 707 of 1990/ T.R. case no. 111 of 1996. At this juncture it would pertinent to note the judgment of Hon'ble Apex court delivered in case of Nathi Lal and others v. State of U.P. and another reported in 1990 (Supp) Supreme Court cases 145 wherein Apex Court has held that both the cross cases must be tried by same learned judge one after another and both the judgments must be pronounced by the same learned judge one after the other. But on perusal of both these judgments, it is clear that ratio of Nathi Lal case (Supra) has not been followed by the learned trial court in deciding the case and counter case as both the judgments has been delivered by the two different learned judges. Further, on perusal of Ext.-A i.e. judgment passed by the Judicial Magistrate 1 st Class, Giridih in complaint case no. 707 of 1990/ T.R. case no. 111 of 1996, I find that P.W.3 informant Deo Narayan Verma herein and his father Kishun Mahto were accused in complaint case no. 707 of 1990/ T.R. case no. 111 of 1996 and they were tried for the offence under sections 323, 325, 427 and 506 of IPC

and were convicted under section 323 and 427 of IPC but both informant and his father were acquitted of the charges under section 325 of IPC on the ground that doctor was not examined. Further, both the convicts were not imprisoned and were ordered to be released on furnishing P.R. bond worth Rs. 500/- each with condition to maintain good relations and harmony with other side for a period of one year and the learned Judicial magistrate also noted that it would helpful in restoring good relationship in between both the parties, who are having blood relations between them. So, due to overlooking of Nathi Lal case (supra) by the prosecution, consistency in both these judgment could not be maintained. Hence, for parity of sentence and for the ends of justice, appellants herein are not required to sent to jail after about 30 years of occurrence and period already undergone by them is considered as sentence sufficiently served. However, both the remaining appellants i.e. appellants no. 2 Tulsi Mahto and appellant no. 3 Ruplal Mahto will pay a consolidated compensation of Rs. 10000/- to the informant P.W.3 Deo Narayan Prasad Verma for causing injury to the informant's father Kishun Mahto (now passed away) within two months of the date of receipt of copy of this judgment and in default of which appellants will undergo imprisonment of two months S.I. The compensation amount may be deposited in the concerned court below and appellants will be discharged from the liability of bail bond after payment or deposit of compensation amount.

36. Accordingly, this criminal appeal is dismissed with modification in conviction and in sentence.

(Ratnaker Bhengra, J.)

Jharkhand High Court, Ranchi Dated:05/03/2021 S.B-NAFR