Satish Mandal vs The State Of Jharkhand
2021 Latest Caselaw 3968 Jhar

                                  1

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Cr. Appeal (SJ) No.1486 of 2003

(Against the Judgment of conviction and order of sentence dated
30.09.2003 passed by the Court of Additional District and Sessions
Judge, Fast Track Court-IV, Bokaro, in connection with S.T. No.131 of
2002, Pindrajora P.S. Case No.80 of 2001 and corresponding to G.R.
No.886 of 2001.)

Satish Mandal                            .....   Appellant
                         Versus
The State of Jharkhand                   ....      Respondent

     CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

For the Appellant     :         Mr. R.C.P. Sah, Advocate
For the Respondent State:       Mr. Santosh Kumar Sukla, APP
                            -----

C.A.V. on : 25.10.2021 Pronounced On : 28.10.2021

This appeal has been preferred against the judgment of conviction and order of sentence dated 30.09.2003 passed by the Court of Additional District and Sessions Judge, Fast Track Court-IV, Bokaro, in S.T. No.131 of 2002, by which the sole appellant Satish Mandal was convicted for the offences punishable under Sections 307 and 504 of the IPC and he was sentenced to undergo rigorous imprisonment for seven years for the offence punishable under Section 307 of the IPC and imprisonment of one year for the offence punishable under Section 504 of the IPC and both the sentences were directed to run concurrently.

2. The prosecution case has arisen on the basis of the fardbeyan of Bhim Mandal, son of Ratu Mandal of village Narayanpur, P.S. Pindrajora in the district of Bokaro. The informant Bhim Mandal alleged in the said fardbeyan that on 12.09.2001 at about 7:30 am in the morning, Smt. Tuku Devi, wife of the sole appellant Satish Mandal was plucking the ladyfinger (vindi) in the field of the informant. Thereupon the wife of the informant intercepted her and asked her as to why she was plucking the said vegetable vindi from her bari (Agriculture Field) and both the wife of the informant and wife of the accused started quarrelling over the matter. At that time, the

informant Bhim Mandal was busy in plantation of the Banyan tree in his bari (Agriculture field). He heard the abusive languages of the accused and rushed towards his khaliyan and asked Satish Mandal(Appellant) as to why he was taking side of his wife in the dispute between the ladies. Appellant Sastish Mandal inflicted Tangi blow on the head of informant Bhim Mandal causing bleeding injury. Bhim Mandal fell down on the ground and became unconscious. He was taken to hospital for treatment. His fardbeyan was recorded before A.S.I. R.S. Singh of Pindrajora P.S. Dist. Bokaro at Ideal Nursing Home, Chas Purlia Road on the same day at about 13 hours. The fardbeyan of informant Bhim Mandal was attested by two witnesses namely Praful Mandal and Mutuck Mandal.

On the basis of the fardbeyan Pindrajora P.S. case No.80 of 2001 dated 12.09.2001 u/sec. 323/324/341/307/504 IPC was registered and A.S.I. Sri R.S. Singh was entrusted to investigate the case.

After investigation charge sheet was submitted against the accused u/sec. 323,324,341/307/504 I.P.C. Accordingly cognizance was taken by the Ld. CJM, Bokaro. After completion of provision of u/sec. 207 Cr.P.C., the case was committed to the Court of Sessions.

3. After commitment, the charges were framed by the learned court below on 4.06.2002 for the offences punishable under Sections 323,324,341/307/504 I.P.C. and after trial, the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.

4. Heard Mr. R.C.P. Sah, learned counsel appearing on behalf of the appellant and Shri Santosh Kumar Shukla APP appearing on behalf of the State.

Arguments on behalf of the counsel for the appellant:

5. Assailing the impugned judgment of conviction and order of sentence, the learned defence counsel submitted that the findings of the learned trial court below are contrary to the facts and circumstances of the case and not according to the material evidences available on record. It has been pointed out that there are omissions

and commissions in the impugned judgment, which are contrary to the settled principal of law and under the facts and circumstances of this case, learned trial court below ought to have given benefit of doubt to the appellant. It has further been contended on behalf of the appellants that not a single independent witness has been examined and all of them are relatives. It has further been pointed out that both the parties are related to each other and the sole appellant is said to be the vaisur ( brother-in-law) of informant's wife and as a matter of fact, the informant had tried to outrage the modesty of the wife of the sole appellant finding her alone in the bari (agriculture field) and during the course of scuffle, the informant had received the injury by hasua of his wife and therefore the conviction of the appellant under Section 307 is wholly perverse and the impugned judgment of conviction and order of sentence is bad in law and fit to be set-aside. Arguments on behalf of the State:

6. On the other hand, learned APP appearing on behalf of the State has vehemently opposed the contentions raised on behalf of the appellant. It has been pointed out that the learned court below has relied upon the ample materials available on record and there is no legal point to interfere in the impugned judgment of conviction and order of sentence.

7. Having heard learned counsel for the parties, perused the records of the case including the entire lower court records.

FINDINGS

8. It is admitted case of the prosecution that the appellant Satish Mandal and the informant were cousin. PW - 1 Tupli Devi, the wife of the informant Bhim Mandal (PW-6), who had stated that the sole appellant Satish Mandal was her vaisur (brother-in-law). PW - 1 had also stated that the field of ladyfinger (vindi), i.e. the place of occurrence was situated to the western side of the field of the appellant Satish Mandal and as such, both were not only related to each other, rather they were neighbours also. From the trend of the cross-examination of PW - 1 vide paras 25 and 28, it is found that the

defense taken by the appellant was that the informant had been teasing the wife of the appellant in the garb of relationship of bhabhi and dewar and when she protested, the hasua (small sharp cutting weapon for cutting grass) was being held by the appellant's wife and during minor scuffles, the same hit upon the informant and thereby he got injured. PW - 1 categorically stated in para 29, that the information about the incident was not informed to any other single villager, whereas PW-2 Upen Mandal, PW-3, Hiru Chander Mandal @ Hiru Mandal and PW-4 Praful Mandal were co-villagers, who deposed about incident on behalf of prosecution. It creates a cloud of doubts upon the version of prosecution that the appellant had any intention to kill the informant in order to constitute the offence punishable under section 307 of IPC. This shows that the defence taken on behalf of the appellant cannot be ruled out and further the fardbeyan of the informant is falsified by the deposition of this witness P.W.-1 Tupli Devi (who is wife of informant and she is said to have been quarrelling with the wife of the appellant upon plucking of ladyfingers) in Para-29 she stated that not a single person was told about the incident whereas in the FIR it is stated that several villagers had come after hearing about the occurrence, but ironically not a single independent witness has been examined and all were partitioned and interested witnesses examined on behalf of the prosecution.

9. PW-2 Upen Mandal is not the eyewitness to the occurrence as stated by him in the cross-examination, when he stated that he did not see that the wife of the appellant was plucking vindi (ladyfinger). This witness categorically stated that he had not seen anybody plucking vindi and he is the cousin of appellant as well as Informant. This witness also did not utter about any intention or knowledge to kill the informant to attract the ingredients of Section 307 IPC in his statement.

10. PW - 3 Hiru Chandra Mandal is not the eyewitness and he came to know about the incident from one Rathu Mandal and this witness was the driver of the tempo, who had been engaged to take the victim

informant to the doctor at the instance of Rathu Mandal, who was the father of the Informant. This witness is said to be nephew of the informant Bhim Mandal. He did not utter any significant evidence to corroborate the case of the prosecution about the involvement of the appellant in the commission of offence to commit attempt to murder the informant.

11. PW - 4 Praful Mandal came to know that the appellant had assaulted the informant Bhim Mandal. He is said to have simply accompanied the victim informant to the doctor. Neither he had seen the incident nor any significant fact to corroborate the involvement of this appellant in the commission of offence as he is hearsay witness and PW - 4 came to know about the incident from the father of the informant. It is admitted case of prosecution that no villager was informed about the incident as evident from the para 29 of PW - 1, who stated that nobody of the village was informed about the incident.

12. PW - 5 is Mutak Dhari Mandal. Admittedly, he was not at the place of occurrence and when he went into the field, he stated that he had seen the injury on his head. He stated that both the appellant and the informant Bhim were his uncles. The ignorance of this witness is evident from para 6, where he stated that he did not know about the date and time of occurrence. No significant material has come out from the deposition of this witness to support the case of the prosecution for the offence punishable under Section 307 of IPC.

13. PW - 6 Bhim Mandal is the important witness, who is said to be the victim of the incident. In para 29, he had stated that he had not seen the wife of the appellant plucking vindi from the field. He had also stated that the wife of the appellant is his bhabhi and he had have speaking terms with her before the incident. The attention of this witness had also drawn to the fact that this witness having seen the wife of the appellant alone had started teasing her, upon which the wife of the informant protested, when her hand was caught by this

witness during the course of the said bickering, the hasua (small sharp cutting weapon) hit upon the informant.

14. PW - 7 Dr. T.M. Mallik, who has examined the victim informant and who is said to have treated the informant Bhim Mandal, in the examination in chief. This witness had categorically stated that the injury was caused by blunt substance and that may be caused by falling, whereas further he had stated that the injury was caused by sharp cutting weapon, which was grievous in nature and thus the major contradictions in his deposition is found when he was examined before the learned court below and the learned trial court has committed error in appreciating this inconsistency in the deposition of the doctor. Further, from the injury report, it is found that it was photo copy and not the original injury report, where the injury report has been marked with objection as Ext. - 3. From perusal of Ext. - 3 , it is found that there was a sharp cutting injury over the mid portion of the head of size about 4"x1/4"x1/4", which bleeds profusely. PW - 7 has also proved the Ext-2, which is said to be the admission slip, but neither the details of the treatment nor the condition has been mentioned in the admission slip, nor it is followed by any discharge and therefore this document gets clouded with doubts in absence of the examination of the I.O. in this case.

15. The I.O. of this case has not been examined and therefore the prosecution is unexplained on the point as to why the original injury has not been brought on record and further the injury also becomes doubtful as it has been examined in a private clinic and there was no prescription of his treatment nor any medical document for his discharge while his injury was found to be grievous in nature as stated by this doctor PW - 7 whose deposition remained uncorroborated in absence of the non-examination of the I.O. to support about the injury report and the treatment of the victim informant and therefore the offences punishable under section 307 of IPC could not be proved. In para 10,11 & 12 of PW- 6, it is stated that the police had come to the hospital, but the witness PW- 6 (the alleged victim-informant) did not

state that he did not know as to who has informed the police and he did not say as to when the police had come to the hospital. He further stated in para 11, that when the police had come to the hospital, then his father, wife and another person were present, but ironically, there is nothing on record to show about the initiative taken by the police about the original injury report, his admission, discharge or treatment.

Further, non-examination of I.O. in this case is the vital lacuna in the investigation of the case which causes prejudice to the defence of the appellant, particularly the alleged weapon used in causing assault has neither been seized nor it has been produced before the court inasmuch as there are two kinds of statements given by the doctor in his deposition: at one point the doctor P.W.7 stated that the alleged injury has been caused by blunt substance while subsequently he stated that it was caused due to sharp cutting weapon. Therefore the learned trial court has failed to appreciate the evidence on the point of alleged injury in order to constitute the ingredients of the offenses punishable under section 307 of IPC and thus it is utmost the case of simple assault in order to constitute the offence punishable under section 323 of the IPC which is established from the defece taken on behalf of the accused-appellant also. The place of occurrence has neither been proved nor the genesis of commission of offenses i.e. Vindi has been found or any kind of weapon has been collected during the course of investigation. All these factors are pernicious to just and fair trial of the case in order to establish the offenses punishable under section 307 of IPC.

16. PW - 8 Shankar Thakur has been examined on behalf of the prosecution, who had formerly proved the FIR, which was in the hand writing of Ashok Kumar, the then officer in charge of Pindrajora police station, who had also endorsed it. It has been marked as Exts. 1/1 and 1/2. This witness has stated that neither the fardbeyan was written before him, nor it was duly signed before him and in absence of non examination of I.O., the contents of the fardbeyan remains

unproved as to by whom, it was drawn / written at the instance of the Informant.

17. On the other hand, the defence witness DW - 1 has also examined on behalf of the appellant, who is Tuku Devi. This defence witness Tuku Devi is admittedly the wife of the appellant and she is said to be the cause of the alleged incident when it is alleged that this witness tuku Devi was plucking the vindi in the field of the informant and when the wife of the informant and informant himself alleged to have intercepted, the incident took place. This witness has also stated that she was plucking the vindi (lady finger) from her own bari (agriculture field). She categorically stated that the informant Bhim Mandal came there and started teasing her and tried to outrage her modesty by holding her hands and putting his hands on her breast, thereafter she protested and pushed him back, then he fell down and thereafter she ran away from the place of occurrence to her house and there was nobody in her house at that time. She also stated that she did not institute any case about the incident. Her deposition is quite convincing in the light of the evaluation of the evidences of the proceeding as appraised in the forgoing paragraphs.

18. In the statement recorded under Section 313 of Cr.P.C. of the accused appellant, the appellant also stated categorically that due to enmity, this false case has been instituted.

19. Recapitulating the aforesaid discussions and other evidences available on record, it is well established that there had been no intention or knowledge to kill the informant by the appellant. Injury report, which is ext. - 3 made by a private doctor without any requisition of the police is also not a reliable document and in absence of non-examination of the I.O., neither the genuineness of injury report has been established, nor the place of occurrence has been proved. It is also found that no weapon, alleged to have been used in inflicting the alleged injury upon the injured informant, has been found nor any seizure has been prepared to that effect. The cause of incident is said to be the plucking of the vindi (lady finger), but there is

no seizure list to that effect. Neither any discharge of the hospital nor the treatment prescription has been brought on record.

Further from the deposition of the Doctor, i.e. PW - 7, it is well founded that the versions are full of contradictions. At one place, he had stated that the injury has been caused by blunt substance and at another place, he has stated that the injury is caused by sharp cutting weapon and no weapon has been found or brought on record. It is also admitted case of the prosecution that the wife of the appellant was the bhabhi (sister-in-law) of the informant as admittedly the appellant and the informant are cousin. Therefore, the defence taken on behalf of the appellant that her wife was being harassed and teased by the informant and when she protested, the injury was caused, cannot be ruled out

20. Therefore, the appellant is entitled to get the benefit of doubt in absence of any cogent evidence brought on record by the prosecution. Not a single independent witness has been examined, while the cause of incident is said to be the quarrel between the wife of the appellant and the wife of the informant and it speaks a volume against the prosecution in the light of the defence taken on behalf of the appellant that when the informant was teasing the wife of appellant, she protested and pushed the informant and thereby the alleged injuru was caused.

In view of the aforesaid discussions based on the evidences available on record, it is well founded that it is a case of simple assault for the offence punishable under Section 323 of the Indian Penal Code. There is no evidence to hold the guilt of the appellant for the offence punishable under Sections 307 or 504 of the Indian Penal Code. There had been no intention, in which the cause of death or to any intentional insult to intend the breach of peace. Learned trial court has committed gross error in appreciation of all the evidences in the light of the aforesaid findings and this impugned judgment of conviction for the offences punishable under sections 307 and 504 and order of sentence is bad in law and it is fit to be set-aside.

21. Accordingly, the guilt found by the learned court below and the Judgment of conviction and order of sentence dated 30.09.2003 passed by the Court of Additional District and Sessions Judge, Fast Track Court-IV, Bokaro, in connection with S.T. No.131 of 2002, against the sole appellant for the offences punishable under Sections 307 and 504 of the IPC is set-aside and the sole appellant Satish Mandal is hereby held guilt for the offence punishable under Section 323 of the IPC and accordingly the sole appellant is convicted for the offence punishable under Section 323 of the IPC only.

22. Further it is found that the appellant had already remained in jail almost about three and half months and there is nothing on record to show about his criminal antecedent. It is also found that this incident is of 12.09.2001 and the appellant had already suffered reasonable hardships and misery of the criminal proceeding for a long period of time and therefore no purpose would be served to send the appellant again in jail under the facts and circumstances of this case.

Therefore after convicting the appellant under Section 323 of IPC, the sole appellant Satish Mandal is sentenced to imprisonment for the period already undergone. Since the sole appellant is on bail, he is discharged from the liabilities of the bail bond.

23. Accordingly, this Cr. Appeal is partly allowed as above. Let the lower court record be sent back forthwith to the court below concerned.

(Navneet Kumar, J.) Jharkhand High Court, Ranchi.

Dated: 28.10.2021 R.Kumar/N.A.F.R