Jharkhand High Court
Wakil Mandal vs The State Of Jharkhand on 30 November, 2021
1
Cr. Appeal (SJ) No. 1006 of 2003
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 1006 of 2003
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(Against the judgment of conviction dated 15.07.2003 and order of
sentence dated 16.07.2003 passed by the learned 6 thAdditional
Sessions Judge, (F.T.C.-3), Godda in Sessions Case No. 90/1994 &
19/2003.)
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1. Wakil Mandal
2. Ajablal Mandal
3. Jaykrishna Mandal
4. Shanti Devi
5. Rukmini Devi ... Appellants
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Jai Prakash Jha, Sr. Advocate
Mr. Aishwarya Prakash, Advocate
For the Respondents : Mr. Abhay Kr. Tiwari, A.P.P.
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CAV on 26.10.2021 Pronounced on: 30 /11/2021
1. This appeal is directed against the judgment of conviction
dated 15.7.2003 and order of sentence dated 16.07.2003 passed by the
VIth Additional Sessions Judge, F.T.C.-III, Godda by which the
appellants were convicted for the offences punishable under sections
148, 307/ 149 of the IPC and further the appellants Wakil Mandal,
Jaykrishna Mandal and Ajablal Mandal were sentenced to undergo
for RI for 2 years for the offence punishable under sections 148 of IPC
and further the said three appellants were sentenced to undergo RI
for 7 years for the offence punishable under sections 307 read with
149 of IPC and they were also liable to pay a fine of Rs. 2000/- each
and in default thereof, they shall further be directed to serve simple
imprisonment for six months, however, all the sentences shall run
concurrently. Further the appellant nos. 4 & 5 were given the benefit
of section 4 of the Probation of Offenders Act. They were released on
furnishing bond of Rs. 2000/- with two sureties of the like amount
Cr. Appeal (SJ) No. 1006 of 2003
each for maintaining the peace and good behavior for a period of
three years with all the conditions attaching the same under section 4
of the Probation of Offenders Act.
2. Briefly stating the prosecution story as said in the fardbeyan
(Ext. -2) of Phuleshwar Mandal (P.W. 12) by which it has been alleged
by the informant (P.W. 12) that on 24.07.92 at about 8 a.m. in the
morning in village Simartari, Mauza Sarautiya, P.S. Godda (T)
District: Godda. When the informant Phuleshwar Mandal along with
his father Budhu Mandal (P.W. 2), wife Narangi Devi and the brother
Kamleshwar Prasad Mandal were sowing paddy crops over their
field situated in Mauza- Sarautiya near Kali Mandap, then the
accused Wakil Mandal along with seven others armed with lathis,
Farsa came there. Thereafter, the accused Wakil Mandal allegedly
asked as to why the plantation of paddy is being made in the field
and instantaneously exhorted other accused for assaulting, at this,
accused Kishan Mandal with an intent to kill gave a Farsa blow on the
neck of his (informant's) father Budhu Mandal which incidentally fell
on his (Budhu Mandal) head and thereafter the aforesaid Kishan
Mandal gave second blow which caused an injury on the right side of
Panjara of Kamleshwar Mandal (P.W.1). Consequently, the informant
and his other family members overpowered the accused Kishan
Mandal and snatched the said Farsa from his hand. It is further added
that thereafter the accused Wakil Mandal gave a Farsa blow on the
head of Narangi Devi (P.W. 8) wife of informant and the other
accused persons, namely, Ajab Lal Mandal, Bhujo Mandal, Ashok
Mandal, Arun Mandal, wives of Wakil Mandal and Ajablal Mandal
conjointly assaulted the informant and his family members, namely,
Kamleshwari Mandal (P.W.1), Kusum Devi, Jyotish Mandal and
Lochan Mandal with lathi, fist and slaps. On hulla, the witnesses,
namely, Sanjay Mandal son of Huro Mandal, Vidyapati Mandal,
Guru Govind Mandal sons of Kanchan Mandal of the same village
Simratari rushed there running and witnessed the occurrence with
their own eyes and removed the quarreling parties and further took
Cr. Appeal (SJ) No. 1006 of 2003
all the injured including him (informant) to the Sadar Hospital
Godda for treatment.
The aforesaid fardbeyan was recorded on 24.07.1992 at about 10
a.m. at Sadar Hospital, Godda and, thereafter, formal FIR was drawn
vide Godda(T) Police Station Case No. 398 of 1992 against 8 accused
persons.
3. After the investigation the charge sheet was submitted by the
police, cognizance was taken and the case was committed against
only 5 accused persons and the record of the 3 co-accused persons
were split up being juvenile and their case were referred to the
Juvenile Justice Board. Having received the case of commitment the
learned trial court framed the charges against five accused appellants
on 08.01.2001 for the offences punishable under sections 148, 307/149
of IPC and after concluding the trial the impugned judgment of
conviction and order of sentence were passed which is under
challenge.
4. Heard Mr. Jai Prakash Jha, learned Senior Counsel, on behalf of
the appellants and Mr. Abhay Kr. Tiwari, learned A.P.P. on behalf of
the State.
5. Assailing the impugned judgment of conviction and order of
sentence the learned senior counsel on behalf of the appellant
contended that the trial court has not discussed the oral evidences of
the prosecution available on record meticulously which demolished
the case of the prosecution against the appellants and failed to
discuss the nature of documentary evidences filed on behalf of the
appellants and brought on record vide Exhibit-A, the FIR, instituted
by the appellants no. 3 Jaykrishna Mandal which disclosed the fact
that the prosecution party members in the present case had come
over their land and uprooted the paddy crops planted by them and
thereafter, with a view to kill them assaulted with farsa, lathi and
sword to all the appellants and their family members and on all of
them had undergone for treatment at Sadar Hospital, Godda. It has
further been pointed out by the learned senior counsel for the
Cr. Appeal (SJ) No. 1006 of 2003
appellants that the vital fact mentioned in Ext.B (the FIR, lodged by
the appellant no. 3 Jaykrishna Mandal) wherein it was stated that the
paddy crops was planted by them on 23.07.1992 and it was the
prosecution party members including the informant and others had
intervened in their field with an intention to kill them and all the
appellants were badly injured. But, the learned trial court did not
appreciate the injury report of all the appellants and other family
members including the sons of the appellant nos. 1 & 2 and other of
the appellants.
It has also been urged on behalf of the appellants that the
learned trial court did not consider the fact about the non-explanation
of the injuries sustained by the appellants by the prosecution party
members in the present case which has demolished the entire case of
the prosecution and the manner of occurrence and the learned trial
court below has also not discussed the age and time of the injuries
sustained by the appellants and their family members and as such the
impugned judgment of conviction and order of sentence is perverse
for the reasons that the oral evidences of the prosecution witnesses
particularly of P.W. 1 and P.W. 2 have not been appreciated in the
right manner where both have admitted that the place of occurrence
was the land which has not been partitioned and there was no
occasion for the criminal trial for the learned court below to presume
the title of the land belonging to the prosecution party in the light of
the fact that the landed properties is still being the subject matter of
the proceeding under sections 145 & 146 of the Cr.P.C. and thus, the
impugned judgment of conviction and order of sentence is bad in law
and fit to be set aside. The learned senior counsel has relied upon the
rulings in support of his contentions as reported in Bhagwan Sahai
and Anr. Versus State Of Rajasthan (2016) 13 SCC 171 and Deo
Narayan Rai & Others Vrs. The State Of Bihar (1988) BBCJ 86 .
6. On the other hand, learned A.P.P. on behalf of the State
opposed the contentions raised on behalf of the appellants and
submitted that there is no legal evidence to interfere in the impugned
Cr. Appeal (SJ) No. 1006 of 2003
judgment of conviction and order of sentence as the learned trial
court has rightly appreciated the evidences available on record and
the findings of the learned court below is fully justified in view of the
oral and documentary evidences adduced on behalf of the parties.
7. Having heard the submissions of the parties, perused the
record of the case including the lower court record.
FINDINGS:
8. It is admitted case of the prosecution that both the parties
including the informant people and the appellants were the
descendants of the common ancestor and belonging to the same joint
family. It is also admitted case of the prosecution that there is a land
dispute between the parties for a long period of time as both the
parties were claiming the landed properties which is said to be the
place of occurrence. It is also found from the record that several
documents related to the title of the place of occurrence (landed
properties in dispute between the parties) have been proved and
brought in evidences vide exhibits in order to substantiate the claim
and counter claim between the parties over the possession for the
land, in question, which is evident from the Exts. 4, 5 and 6 including
the orders of respective Magistrate passed under section 144 vide
Criminal Miscellaneous No. 932 of 1992 and the order of Criminal
Revision Nos. 19/1993 / 48/1993.
9. P.W. 1- Kamleshwar Prasad Mandal is one of the injured
persons in this case. His deposition did not find any discrepancy in
the date, time and place of occurrence which took place in village on
24.07.1992 at about 8 a.m. in the morning when he was sowing the
paddy crops in his field then the accused appellants namely Wakil
Mandal, Ajablal Mandal, Jaykrishna Mandal and the wives of Wakil
Mandal and Ajablal Mandal and others armed with weapons reached
there and asked them as to why he was planting paddy crops,
thereupon this witness has told in response to that the said field
belongs to him thereupon the appellant Wakil Mandal, ordered his
other associates, then the accused JayKrishna Mandal gave a farsa
Cr. Appeal (SJ) No. 1006 of 2003
blow on the head of his father (P.W.2) and thereafter this accused
also gave a farsa blow in the very Panjara (waist) of Kamleshwar
Mandal (P.W.1) and further this accused again gave a farsa blow on
the head of Narangi Devi (P.W. 8) and after sustaining the aforesaid
injuries all the injured came to the Godda Hospital where they were
treated medically. Thereafter, the police came there and recorded the
statement. In cross examination at para -2 this witness has admitted
the filing of a counter case against him by accused Wakil Mandal
stating that there were none else was present on the P.O. except him
and his family members. Further this witness has also made clear that
the accused Jai Kishan Mandal was standing at a distance of two
hands from him and he was seen by him having armed with farsa on
his hand. Further he has also made clear that the P.O. land belongs to
him and both parties are belonging to the same khandan.
10. P.W. 2, Budhu Mandal, father of the informant, stated that 8
(Eight) persons including two women came there one of them namely
Kishan Mandal gave a farsa blow on his head and after sustaining
injuries this witness became unconscious. He stated that the landed
property was the place of occurrence which is an agricultural land
belonging to him and the accused persons were his gotias. In the cross
examination this witness has specifically stated that the quarrel had
taken place at the place of occurrence which is a landed properties
just before the occurrence.
11. P.W. 3 Shambu Mandal, who was the younger brother of the
informant, stated that the appellants had come to the field (place of
occurrence) and started quarreling with them on the plantation of
paddy crops and thereafter the appellant Wakil Mandal ordered the
appellant Jaykrishna Mandal to inflict injury by farsa blow on the
head of his father Budhu Mandal by which he became unconscious
and the said appellant Jaykrishna Mandal had also given a farsa blow
to his cousin Kamli Mandal (P.W.1) and also assaulted with lathi on
the head of Narangi Devi and Kusmi Devi. It has been admitted in
the cross examination vide para-2 of this witness that both the parties
Cr. Appeal (SJ) No. 1006 of 2003
were gotias and are belonging to the same genealogy and the landed
properties of both the parties pertaining to same Jamabandi and parcha,
but, no documentary partition has been taken place. This witness has
also admitted about the counter case instituted by the appellants.
This witness denied that the Wakil Mandal was admitted in hospital
due to injury inflicted upon him by the informant people.
12. P.W. 4- Lochan Mandal, who was the brother of the informant,
stated that the appellants had come there and a dispute arose due to
the plantation of the paddy crops thereupon the appellant Jaykrishna
Mandal had given a farsa blow to father of this witness and also to his
family members and after sustaining the injuries the father fell down
on the ground and he was taken to Sadar Hospital, this witness has
further stated that the appellant no. 1 Wakil Mandal had never
admitted in the hospital, but, he has admitted that a counter case has
been filed by the appellant no. 3 Jaykrishna Mandal against them. He
had also denied that the thumb of the appellant no. 1-Wakil Mandal
was chopped off by the assault of the informant people.
13. P.W. 5 Bongu @ Ghuteshwar Mandal, who is the uncle of the
informant and he stated that the appellants had come to the disputed
landed property over which paddy crop was sown by the informant
people and then the appellant no. 3 Jaykrishna Mandal had given a
farsa blow on the head of Budhu Mandal and in the panjra of
Kamleshwar Mandal (P.W.1) and in the cross examination he stated
that he was not assaulted by the accused persons. This witness has
also admitted that their land properties were still joint.
14. P.W. 6- Dukhani Devi, who was the wife of the brother of the
informant, has stated that the Wakil Mandal had inflicted injury to
her father-in-law, Budhu Mandal, by which he fell down in the field
and he had also inflicted farsa blow in the right panjra of her bhainsur.
15. P.W. 6/7-Lilawati Devi, who was the wife of Kamleshwar
Mandal (P.W.1) had stated that the appellant no. 3 had given farsa
blow on the head of Budhu Mandal upon the order of Wakil Mandal
(appellant no. 1). Thereafter, he had also given farsa blow on right
Cr. Appeal (SJ) No. 1006 of 2003
panjra of her husband P.W. 1 and has also stated that Narangi Devi
(P.W. 8) was also assaulted by the appellant Krishan Mandal and
other family members. The appellants assaulted the family members
of the informant by lathis and farsa. In the cross examinations she had
stated that all the injured persons had taken to Hospital where they
had gone under treatment.
16. P.W. 8, Narangi Devi, who was the wife of the informant, stated
that at the instance of Wakil Mandal (appellant no. 1) Kishan Mandal
had gave farsa blow on the head of Budhu Mandal and Kamleshwar
Mandal and this accused had also assaulted farsa blow upon her and
they were taken to hospital and has admitted the filing of the counter
case against the informant and his family members in which she was
also an accused, but, she had denied that the right thumb of the
appellant Wakil Mandal was chopped off. This witness admitted that
the occurrence had taken place due to land dispute arising out of the
share between the parties (informant people and the appellant).
17. Three witnesses namely P.W. 9 Sanjay Kumar Mandal, P.W.10
Bal Govind Mandal and P.W. 11 Vidyapati Mandal have been
declared hostile. But, all of them said about the occurrence between
the informant people and the accused persons and there was a land
dispute existed between the parties.
18. P.W. 12, Phuleshwar Mandal, who was the informant in this
case. He stated that all the appellants had come to the field when they
were sowing paddy crops and the appellant no. 1- Wakil Mandal had
instigated for assaulting them. There upon the appellant no. 3
Krishan Mandal gave a farsa blow on the head of Buddhu Mandal
and in the right Panjra of Kamleshwar Mandal and in the back
portion of the heads of Narangi Devi and Kusmi Devi were also
injured by the appellants by farsa and thereafter all the injured were
taken to the hospital where they had gone under treatment. In the
cross examination this witness accepted that the appellant no. 3
Kishan Mandal had also filed a counter case against him out of the
same occurrence in which all the accused persons were allegedly
Cr. Appeal (SJ) No. 1006 of 2003
assaulted by the informant's team. This witness has accepted that the
appellants were their gotias and the occurrence had taken place due
to the dispute in the landed properties which is the place of
occurrence.
19. P.W. 13 Dr. Satendra Mishra, who had examined the injured
persons which are as under:
a. On the alleged day 24.07.1992 at 11.20 a.m. examined
Lochan Mandal (P.W. 4) and found following injuries on the
person:
(i) Tenderness over the middle 3rd of left forearm.
(ii) Tenderness over the scapular (Right) region of back.
The medical witness has deposed that the nature of injury is
simple and cause by hard and blunt substance within six
hours of the alleged time of occurrence and the same injury
report is marked as Exhibit -1.
b. On the same day at about 11.30 am, he also examined the
injury of injured Kusmi Devi, wife of Sri Lochan Mandal
(P.W. 4) and found the following injures on her person:
(i) One incised wound 1 ½"x1/4"x1/4" on the right
temporal region of scalp.
(ii) Tenderness over the left half of back.
The medical witness has further deposed specifying
that the injury no. (i) was caused by sharp cutting weapon
but the injury no. (ii) by hard and blunt substance. Although
he has found both the injuries as simple ones and the same is
marked as Exhibit 1/1.
c. On the aforesaid day at about 9:40 am, he examined the
injuries of injured Jyotish Mandal and found following
injures on his person:
(i) One lacerated wound ½" in diameter on the left corner of
forehead.
(ii) Tender swelling 3"x2" on the left paravertebral region of
back.
Cr. Appeal (SJ) No. 1006 of 2003
This witness has further deposed that all the injuries
are simple and caused by hard and blunt substance within six
hours and the same is marked as Exhibit ½.
d. On the same day at about 10:10 am, he also examined the
injuries of the injured Lila @ Lilawati Devi (P.W.6/7) and
found following injuries on her person:
(i) One haematoma ½" in diameter over the occipital region
(ii) Tenderness over the middle 3rd left forearm.
He has further deposed that both the injuries are
simple and caused by hard and blunt substance within six
hours and the same report is marked as Exhibit 1/3.
e. On the same day at about 8:50 am, he examined the injury
of injured Kamleshwar Prasad Mandal (P.W. 1) and found
the following injuries on his person:
(i) One incised wound 2"x1/2"x1/2" on the right ant. chest
wall (7th Space) horizontal on the direction.
(ii) One abrasion 2"x1/8"on the right side of neck, over the
right collar bone
(iii) Tenderness over the base of left thumb.
He has further deposed that the injury no. (i)
was caused by a sharp cutting weapon but injuries nos. (ii) &
(iii) by hard and blunt substance which are simple in nature
caused within six hours. The same injury report is marked as
Exhibit ¼.
f. On the same day at 9:50 am, he examined the injury of the
injured Narangi Devi wife of Phuleshwar Mandal and found
following injuries on her person:
(i) One incised wound 1 ½"x ½" x1/2" on the left occipital
region of scalp.
The doctor has opined that though the injury is
simple but caused by a sharp cutting weapon within six
hours. The same injury report bears Exhibit 1/5.
Cr. Appeal (SJ) No. 1006 of 2003
g. On the same day at 8:35 am, he examined injury of Budhu
Mandal (P.W.2), the father of informant and found following
injuries on his person:
(i) One incised wound 3"x 1 ½" x ½" on the left parietal
region of scalp oblique in direction.
(ii) Tenderness over the different areas of back.
This witness has further deposed opining that both the
injuries are simple but injury no. (i) was caused by sharp
cutting weapon and injury no. (ii) by a hard and blunt
substance within six hours and the same injury report bears
Exhibit 1/6.
h. On the same day at 9:30 am he also examined the injury
of Phuleshwar Mandal (P.W. 12) and found the following
injures on his person :
Tenderness, swelling and crepitus over the lower 3rd right
forearm.
All the injuries causes by hard and blunt substance and have
been marked as Exhibits 1/7 and 1/8 and the injuries inflicted upon
the informant were also simple in nature. Thus from the versions of
P.W. 13 it is found that P.W. 1, 2, 4, 6/7, 8 and 12 and some other
persons were injured and the injuries were simple in nature in the
light of the depositions of this Doctor P.W.13 Dr.Satyendra Mishra.
20. P.W. 14- Bindeshwar Choudhary is the I.O. of this case. He has
stated about the place of occurrence which is found commensurate to
the version of the prosecution and no inconsistency is found in place
of occurrence and about the date and time. This witness has also
accepted that the counter case against the informant and their family
members has been instituted by the appellants. This witness has
prepared the OD Slip of the injured persons.
21. Recapitulating the evidences as discussed above it is well found
that both the parties including the informant people and the
appellants were gotias belonging to the same Khandan(Family) and the
descendants of the common ancestor. It is also admitted that both
Cr. Appeal (SJ) No. 1006 of 2003
were belonging to the same family, but, the partition of the landed
property have not taken place between them. It is also admitted case
that there is a case and counter case between the parties and from the
perusal of Exhibit B it is found that the appellant no. 3 Jaykrishna
Mandal had instituted a case against the informant of the present case
namely Phuleshwar Mandal (P.W. 12), his father P.W.2 Budhhu
Mandal, P.W.4 Lochan Mandal, P.W.3 Shambhu Mandal, P.W.5
Bongu Mandal, Kamli Mandal, wife of Pulchand Mandal, wife of
Lochan Mandal, wife of Shambhu Mandal and wife of Kamli Mandal
and Gongu Mandal for the offence punishable under section 147, 148,
149, 323, 324 307, 379, 447, 326 of IPC vide Godda P.S. Case No. 260 of
1992 dated 24.07.1992.
22. Further from the perusal of the injury reports of the injured
accused-appellants in the counter case (Ext.-B) instituted by the
appellants against the informant people which are found Exhibit A
series namely Ext. A, Ext. A/1, Ext. A/2, Ext. A/3, Ext. A/4, Ext.
A/5, Ext. A/6, Ext. A/7 and Ext. A/8 by which it is found that
several persons from the appellant side were sustained injuries in the
alleged same incident where case and counter case had been
instituted by both the parties. The injured persons from the appellant
side were Smt. Rukmini Devi (appellant no. 5 - Ext. A), Smt. Shanti
Devi (appellant no. 4 - Ext. A/1), Smt. Munni Devi (Ext. A/2), Shri
Dilip Kumar Mandal (Ext. A/3), Shri Ashok Kr. Mandal (Ext. A/4),
Shri Wakil Mandal (appellant no. 1 - Ext. A/5), Shri Jaykrishna
Mandal (appellant no. 3 - Ext. A/6) and Shri Ajablal Mandal
(appellant no. 2 - Ext. A/7 and Ext A/8). From the perusal of these
injury reports it is well founded that there had been a free fighting
between both the parties and several persons were injured from both
the sides.
From the perusal of the injuries of appellant no. 1-Wakil
Mandal, it is found that he had sustained grievous injuries also along
with simple injuries by sharp cutting weapons which is corroborated
by Ext. C which is the certified copy of the deposition of the Doctor
Cr. Appeal (SJ) No. 1006 of 2003
who has been examined in the Sessions Trial of the case instituted by
the accused-appellant against the informant people which established
that in the said fighting, several persons from both the sides were
injured but the facts remained to consider that the prosecution parties
members in the present case were injured by the assaults of the
appellants although the injuries were simple in nature and their
intention is not reflected to commit murder of the injured persons.
From the deposition of the witnesses examined on behalf of the
prosecution in the present case it is also found that there is a
consistency and uniformity that the appellants had also inflicted
injuries upon the informant including the P.W.s 1, 2, 4, 6/7, 8 and 12.
The date, time, and place of occurrence had been substantiate by the
evidence of the witnesses including the I.O. The injury reports vide
Ext. 1 series also supported by which it is established that the injured
persons had sustained simple injuries and they had gone under
treatment to the hospital. From the perusal of the injuries reports
which have been proved and marked as Ext. 1 series including 1,
1/1, 1/2, 1/3, 1/4, 1/5, 1/6, 1/7, & 1/8. From the perusal of these
injuries reports all are found simple in nature. Having been
established free fighting between the parties and the injuries caused
to the several persons of both the sides it is also well founded from
the documentary evidences apart from the depositions vide Ext. 5,
Ext. 6 and Ext. 7 that there had been a litigation between the parties
with respect to the landed properties and, therefore, the enmity is
well established between the parties. Particularly enmity is double
edged weapons and the motive can be inferred on both the sides
either to commit the offence or for its false implication.
23. In the present case in view of the glaring evidences as
scrutinized meticulously in the foregoing paragraphs it is well
founded that the appellants had inflicted injuries upon the informant
people with a clear cut motive of land dispute, but, at the same time it
is inferred that it was not a case to constitute the offence under
section 307 of the IPC. All the injuries have been found simple in
Cr. Appeal (SJ) No. 1006 of 2003
nature as discussed above and further there is no repeated blows
upon the informant people. Although several people from the
informant side were present at the place of occurrence and all were
the family members, and, therefore, the intention or knowledge to
cause murder to anyone of the family members is not emanating
from the testimony of the witnesses which is also corroborated from
the version of the doctor who has also been examined and proved the
injuries reports which are exhibited as Ext. 1 series. From the perusal
of Ext. 1 series all the injuries sustained by the injured persons are
found to be simple in nature as under:
a. The injury of Lochan Mandal (P.W.4) was simply Tenderness over
the middle 3rd of left forearm and tenderness over right scapular
region of back.(Ext.1)
b. The injury of injured Kusmi Devi, wife of Sri Lochan Mandal (P.W.
4) were one incised wound 1 ½" x1/4"x1/4" on the right temporal
region of scalp and Tenderness over the left half of back(Exhibit 1/1).
c. The injuries of injured Jyotish Mandal were found one lacerated
wound ½" in diameter on the left corner of forehead and Tender
swelling 3"x2" on the left paravertebral region of back.(Ext.-1/2)
d. The injuries of the injured Lila @ Lilawati Devi (P.W.6/7) were
found as 0ne hematoma ½" in diameter over the occipital region
Tenderness over the middle 3rd left forearm. (Exhibit 1/3)
e. The injuries of injured Kamleshwar Prasad Mandal (P.W. 1) were
one incised wound 2"x1/2"x1/2" on the right ant chest wall (7th
Space) horizontal on the direction,one abrasion 2"x1/8"on the right
side of neck, over the right collar bone and Tenderness over the base
of left thumb. (Exhibit ¼).
f. The injury of the injured Narangi Devi wife of Phuleshwar Mandal
was one incised wound 1 ½"x ½" x1/2" on the left occipital region
of scalp(Exhibit 1/5).
g. The injuries of Budhu Mandal (P.W.2), the father of informant were
found as one incised wound 3"x 1 ½" x ½" on the left parietal
region of scalp oblique in direction and Tenderness over the different
areas of back. (exhibit 1/6).
h. The injury of Phuleshwar Mandal (P.W. 12) on his person was
found as Tenderness, swelling and crepitus over the lower 3rd right
forearm. ( Exhibit-1/7&Ext.1/8):
Cr. Appeal (SJ) No. 1006 of 2003
All the injuries have been proved and marked as Exhibits 1 to
1/8 from the versions of P.W. 13 and it is found that P.Ws. 1, 2, 5,
6/7, 8 and 12 along with some other persons were injured and the
injuries were simple in nature and therefore, the learned trial court
has committed gross error in finding the guilt of the accused
appellants for the offence punishable under section 307 of IPC.
Further, neither any weapon used in the alleged offence has been
brought on record as material exhibit including farsa, nor it has been
shown to the doctor as to whether the injuries inflicted upon the
injured persons were caused by these weapons or not and, therefore,
it has become doubtful about the means of weapons used in inflicting
injuries and since it is a well admitted case and admittedly based on
inimical evidences and, therefore, in absence of legal evidences it is
not fair and just to hold the conviction under section 307 IPC, hence
utmost it is a case of 324 IPC.
It is well settled principle of law that in order to constitute
an offence under section 307 of IPC the intention or knowledge be
such as is necessary to constitute murder and in absence of this, there
can be no offence under section 307 IPC. Further the intention or
knowledge has to be deduced or inferred from the evidences
adduced on behalf of the prosecution including (a) nature of weapon
used (b) the place where injuries were inflicted (c) the nature of
injuries caused and (d) the opportunity available to the accused
holding weapon in inflicting injuries. In the present case, this Court
finds that nature of weapon said to have been used were hard and
blunt including Farsa, which is a dangerous weapon. But, the injuries
alleged to have been inflicted are simple in nature. Further both the
prosecution party and accused persons are admittedly Gotias
(belonging to same Khandan, Family-cousins). None of the accused
has been charged to inflict repeated Farsa blows when the accused
persons had ample opportunities to do the same as non-else was
present at the place of occurrence, other than the members of both the
Cr. Appeal (SJ) No. 1006 of 2003
families. Therefore, the ingredients of section 307 cannot be held to be
proved. It is also found that the injuries were not found on the vital
part of the body inasmuch as the injuries found to be simple in nature
which are categorical finding of the expert witness Doctor PW 13,
who has been examined by the prosecution and getting wholly
corroborated with the testimony of the prosecution witnesses as
discussed above. Thus, it is well founded that the requisite intention
or knowledge to commit murder under the circumstances are not
proved in absence of any one of the ingredients to constitute offence
punishable under section 307 of IPC. Further, it is well founded from
the evidences as discussed in foregoing paragraphs that several
accused persons by making unlawful assembly had gone to the place
of occurrence and have had free fighting between both the sides and,
therefore, learned trial court has rightly appreciated the prosecution
evidences and held the guilt of the accused- appellant for the offences
punishable u/s 148 IPC.
24. In the light of above findings, this Court does not find the guilt
of the appellants for the offences punishable under section 307 of IPC
rather their guilt are proved for the offences punishable under
sections 148 and 324 read with section 149 of IPC and hence this
Court alters the offences proved against the appellants and upholds
the guilt of the appellants for the offences punishable under sections
148 and 324 read with section 149 of IPC, accordingly the appellants
are convicted thereunder
25. Under the facts and circumstances of this case on the point of
sentence it is found that it is an admitted case of the prosecution that
both the parties are belonging to the same family and descendants of
the common ancestor and dispute had arisen due to landed
properties. There is a case and counter case and no criminal
antecedent is found other than the case and counter case, thus it is
found just and fair to take a liberal view in awarding sentence after
finding the guilt of the accused persons for the offenses punishable
under sections 148 & 324/149 IPC. There is no brutality or
Cr. Appeal (SJ) No. 1006 of 2003
heinousness in the commission of the offenses punishable under
sections 148 & 324/149 IPC for which they have been found guilty.
Neither any evidence of repeated blows/assault nor any intention or
knowledge to kill the victims have been substantiated. The appellant
no.1 Wakil Mandal has remained in jail for sixteen days, the appellant
nos. 2 and 3 have remained in jail for one month twenty two days
and the appellant nos. 4 and 5 were not sentenced for a term of
imprisonment by the learned trial court rather they were released on
furnishing bail bond of Rs. 2000.00 (Rupees Two Thousand Only)
with two sureties of like amount each for maintaining the peace and
of good behavior for a period of three years with all the conditions
attaching to the same under section 4 of the Probation Of Offenders
Act and the period of three years have already elapsed. Therefore, in
this view of matter, this Court finds it just and proper to award the
sentence of imprisonment for the appellant no.1 Wakil Mandal,
appellant no. 2 Ajablal Mandal and appellant no.3 Jaykrishna Mandal
for a term of period already undergone and for the appellant nos. 4
and 5, who were not sentenced for a term of imprisonment by the
learned trial court rather they were released on furnishing bail bond
of Rs. 2000.00 (Rupees Two Thousand Only) with two sureties of like
amount each for maintaining the peace and of good behavior for a
period of three years with all the conditions attaching to the same
under section 4 of the Probation Of Offenders Act and this period of
three years have already elapsed and hence, there is no need for any
modification in the order of sentence passed with respect to
appellants no.4 and 5.
26. In the result, the judgment of conviction dated 15.07.2003 and
order of sentence dated 16.7.2003 passed against the aforesaid
appellants by the court of learned 6th Additional Sessions Judge, Fast
Track Court No. 3, Godda is hereby modified as above and this
appeal is partly allowed accordingly.
27. The appellant no.1 Wakil Mandal, Appellant no.2 Ajablal
Mandal and appellant no.3 Jaykrishna Mandal of this appeal are on
Cr. Appeal (SJ) No. 1006 of 2003
bail and thus, they are discharged from the liabilities of their bail
bonds and appellant nos. 4 Shanti Devi and 5 Rukmani Devi had
already covered the period of bond for three years which is now over
in this case. Thus, all the appellants get free from the liabilities in this
case.
28. Let the Lower Court records be sent back to the Court
concerned forthwith, along with a copy of this Judgement.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 30/11/2021/NAFR
MM/-
