Jharkhand High Court
Mojan Mahto vs The State Of Jharkhand on 25 October, 2021
1
Cr. Appeal (SJ) No. 762 of 2003
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 762 of 2003
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(Against the judgment of conviction dated 31.03.2003 and order of
sentence dated 31.03.2003 passed by the learned Additional District
& Sessions Judge, Fast Track Court No. IV, Bokaro in Sessions
Trial No. 241 of 1996.)
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1. Mojan Mahto
2. Kunwar Mahto
3. Radhe Mahto
4. Dilip Kumar ... Appellants
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'B LE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Ramawatar Sharma, Advocate
Mrs. Kavita Sharma, Advocate
For Respondents : Mr. Anup Pawan Topno, A.P.P.
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CAV on 21.10.2021 Pronounced on: 25 /10/2021
1. This appeal is directed against the judgment of conviction and
order of sentence dated 31.03.2003 passed by the Additional District
& Sessions Judge, F.T.C. IV, Bokaro in S.T. No. 241 of 1996 by which
the appellants have been convicted under sections 448, 323 of the IPC
and the appellants were directed to furnish the probation bond u/s 4
of the Probation of Offenders Act of Rs. 2000/- for maintaining peace
and good behavior for a period of one year and to appear and receive
sentence when called upon during such period.
2. The prosecutions story arises in the wake of written report of
the informant Sobha Devi, informant, in which it has been alleged
that the accused appellant no. 1 Mojan Mahto was the husband of the
informant Shobha Devi and the appellant no. 2 Kunwar Mahto and
the appellant no. 3 Radhe Mahto are the devars (brother-in-laws) of
the informant while the appellant no. 4 Dilip Kumar was the friend of
her devars. It has been alleged in the said written report that she was
the daughter of the Shri Govind Prasad Mahto and she was residing
Cr. Appeal (SJ) No. 762 of 2003
in the quarter of her father at Quarter No. 10 Street no. 1 Sector IX A.
She further disclosed that her marriage was solemnized with the
appellant no. 1 Mojan Mahto on 19.07.1990, but, she was harassed by
her husband and family members of the appellant no. 1 for which she
had instituted a Complaint Case No. 47 of 1991 against her husband,
father-in-law and other members in the family in which the case was
finally concluded in compromise. But, again the appellants started
torturing to her so she again filed a complaint against them vide C.P.
Case No. 84 of 1992 in which her husband Mojan Mahto, father-in-
law Kashi Mahto and mother-in-law Sushila Devi were convicted by
the Judicial Magistrate, First Class on 05.12.1994 and they were
sentenced to 1 year imprisonment and fine of Rs. 1000/- was also
imposed upon the accused persons. The accused persons had
preferred an appeal against the said order of conviction.
3. The informant Sobha Devi further alleged in her said written
report that after being aggrieved by the said judgment of conviction
and order of sentence, on 03.01.95 at about 10 a.m. all the four
appellants came to the quarter of her father Q.No. 10, Street No. 1
Sector - IX A, where she was residing and at that time she was in the
quarter with her brother Vishundeo Mahto. Her mother had gone to
the ground floor and her father had gone to this duty. The accused
persons knocked the door and the informant Sobha Devi had opened
the same, all the four accused persons entered into the room, they
caught hold of her and they forcefully dragged her towards the
ladder. She tried to get herself free and started raising alarm. She was
assaulted by the accused persons with the help of a black wire like
rod and was threatened by them. They threatened to kill her by
shouting. Her mother, brother and other muhalla people came there
for her rescue at which all the four accused persons assaulted the
mother of the informant and fled away after snatching golden chain
and golden balla. They fled away with their Tempo No. BR-20 S/2553
which was standing on the ground floor near the down stair.
Cr. Appeal (SJ) No. 762 of 2003
4. It has been further alleged that in course of fleeing away from
the place of occurrence they assaulted her and her mother with an
iron rod and the said iron rod was left there and so many persons
had seen the occurrence and they might disclose it.
5. On the basis of the aforesaid written application a formal FIR
was drawn, charge sheet was submitted, cognizance was taken, case
was committed to the court of Sessions, charges were framed and
after trial the learned Court below passed the impugned judgment of
conviction and order of sentence on 31.03.2003 which is under
challenge.
6. Heard Mr. Ramawatar Sharma, the learned defense counsel
appearing on behalf of the appellants and Mr. Anup Pawan Topno,
A.P.P. for the State.
7. Learned counsel appearing for the appellants further submits
that the trial court did not appreciate evidences as per the provision
of law and the impugned judgment is perverse as based on conjecture
and surmises. It has been contended on behalf of appellants that the
learned trial Court has itself observed that all the witnesses are
interested witnesses being the closed relative of the informant and
also on inimical terms between the informant and the appellants but
in spite of these facts passed the impugned judgement of conviction
and order of sentence. Learned counsel for the appellants has further
submitted that the evidence of the Dr. P.W. 6 should not have been
considered as the same is not corroborative and the injuries are not
corroborative injuries mentioned by the informant herself. Further,
the learned counsel for the appellants has pointed out that the trial
court is totally ignored the facts that there are only two independent
witnesses in this case out of which one was not examined and
another has not stated anything against the appellants and the I.O. of
this case has also not been examined and non-examination of the I.O.
seriously caused prejudice the defence case and even the relevant
papers were not proved as exhibits including FIR, Seizure list etc.
Cr. Appeal (SJ) No. 762 of 2003
8. It has further been argued on behalf of the appellants that there
had been a contradiction in the statement of the witnesses and the
adverse circumstances and the evidence adduced against the
appellants have not been brought into the notice of the court at the
time of recording their statement under section 313 Cr.P.C. Further, it
has been stated by the learned counsel for the appellants that the
learned trial Court had totally ignored the fact that the mother of the
informant who is also said to be a victim of the said alleged incident
has not been examined.
9. Learned counsel for the appellant further submitted that P.Ws.
2 & 3 are the brothers of the informant-wife and they cannot be relied
upon in absence of their names in the FIR. It has also been submitted
that since it is admitted position that the offences alleged had been
committed by the appellants arising out of dispute between the wife
and husband and their family members, the possibility of false
implications cannot be ruled out in order to given undue pressure
upon the husband.
P.W. 4 victims did not state in the FIR and also subsequently in
the deposition recorded in the course of trial that she did not state the
name of the specific assailants and further there is no evidence to
invoke the ingredients of offences punishable either under section 323
or under section 448 in absence of any assault.
In support of his contention learned counsel for the appellants
has referred the following rulings :
Ishwar Singh Versus The State Of U.P. AIR 1976 SC 2423
Bir Singh and Others Versus The State of U.P. AIR 1978 SC 59
10. On the other hand, learned A.P.P. has opposed the contention
of the appellant vehemently and submitted that there is no error in
the impugned judgment of conviction and order of sentence and the
learned trial court has rightly appreciated the evidences available on
record and there is no legal point to interfere in the impugned
judgment of conviction and order of sentence.
Cr. Appeal (SJ) No. 762 of 2003
11. Having gone through the submissions advanced on behalf of
the parties, perused the record of the case.
12. It is an admitted case of the prosecution that the appellant no. 1
Mojan Mahto who is the husband of the informant Sobha Devi and
the Appellant nos. 2 & 3 namely Kunwar Mahto and Radhe Mahto
were her devars while the appellant no. 4 Dilip Kumar was the friend
of her devars. It is the admitted case of the prosecution that there had
been a long standing matrimonial dispute between the husband and
wife and consequently between their family members. It is also
admitted that a Complaint Case No. 47 of 1991 was filed by the
informant and the same was concluded in compromise and again
another Complaint Case No. 84 of 1992 was filed which concluded
into conviction of appellant no. 1 and her father-in-law Kashi Mahto
and Mother-in-law Shushila Mahto. There was a Maintenance case
also between Appellant no. 1 husband and the informant-wife P.W.4
vide M.P. Case No.5/93. This is another case which is in hand. The
appellants were charged for the offence punishable u/s 448/323/
364/ 511/34 of the IPC and in addition to this section the accused
appellant no. 1 Mohan Mahto had also faced trial under section 379
IPC but the learned Trial Court acquitted the appellants in all other
sections364/511/34 I.P.C. and also appellant no.1 under section 379
of I.P.C. but convicted them under sections 448 and 323 of I.P.C.
13. The crux of allegation is that on 03.01.1995 at about 10 am all
the appellants had entered into the house of the informant Sobha
Devi at quarter No. 10, Street No. 1 Sector IX A in furtherance of their
common intention and attempted to kidnap her in order to kill her as
disclosed by the informant in the FIR itself. But, the learned trial
court after the trial, held guilty to the accused persons for the offences
punishable under sections 448 & 323 of the I.P.C. only and they have
been acquitted for the rest of the charges under sections 364 & 511 &
34 of the I.P.C. and also the appellant no. 1 was acquitted for the
charges punishable under section 379 IPC.
Cr. Appeal (SJ) No. 762 of 2003
14. After going through the evidence and facts of this case it is
found that the trial court could not comprehend the inimical
evidences in totality in view of the admitted long standing
matrimonial dispute between the parties.
15. There is an undue delay in the institution of the FIR as the
incident had taken place on 03.01.1995 at 10 am in the morning and it
is found that the FIR was formally instituted on 04.01.1995 and
further delay when the FIR was forwarded before Chief Judicial
Magistrate, Bokaro on 7.01.1995. Further it is admitted fact that the
long standing dispute is between husband and wife and the
appellants Nos. 2 & 3 are Dewars (brothers-in-laws) and appellant
No.4 is the friend of the devars of the informant and, therefore,
learned court below has committed error in appreciation of the
evidences in the light of these admitted facts. It is further pointed out
that PW - 1 Sita Ram Mahto and PW - 2 Sanjay Kumar Mahto and
PW-3 Bishundeo Kumar Mahto are the brothers of the informant and
PW-1 and PW-2 are hearsay witnesses as they were not in the quarter
(Place Of Occurrence) and P.W.-3 was in the room, although they had
deposed like eyewitness with full of contradictions in their testimony.
Thus being the brothers of the informant (wife of the appellant No.1)
and finding major inconsistencies, they cannot be relied upon. Since
PW-1 and 2 are hearsay witnesses and the informant PW - 4 did not
disclose the incident to these two witnesses PW - 1 and 2 as evident
from the FIR itself, their deposition cannot be taken into account to
support the case of the prosecution. This court finds force in the
submissions of the learned counsel for the appellant that due to
animosity and restrained relationship of husband and wife the
appellants have been falsely implicated in the present case in view of
the fact that apart from long standing matrimonial dispute between
the husband-appellant no.1 and his wife-informant (PW-4), the
appellant no.1(Husband) was employee in the BSL at Bokaro and he
was raising some issues of illegal occupants being the employee of
BSL, the appellants have been falsely implicated as evident from para
Cr. Appeal (SJ) No. 762 of 2003
11 of P.W.1 who has stated in para 11 that his shop was in the land of
BSL without allotment and neither he had taken the permission nor
he had been paying Tax of running shoe shop. It has further been
found that in para 8 of the PW - 2, he has stated that he had seen the
accused persons assaulting the informant and her mother while he
stated in para-13 categorically that he came to know about the
incident from her mother and the sister who had narrated about the
incident and therefore it is inferred that these witnesses have not seen
the occurrence and there is vital contradiction in his statement and
since he is the brother of the informant victim, his testimony is not
trustworthy in the light of such vital contradictions. In para 1 this
witness PW 2 has stated that he is at his shop at the time of incident
and he was coming from the shop to his house for taking breakfast as
stated in para 6 and as such he was not available in the house at the
relevant day, place and time of the incident.
From the perusal of deposition of PW - 3 it is found that he is
the brother of the informant. In para 46 Bishu Deo Kumar (PW-3)
stated that he had not seen any assault / injury on the body of his
sister and thus the entire case of the prosecution is demolished and as
such there is no legal evidence to find the guilt of the accused-
appellants under sections 448/323 of IPC and gross error as such is
found in the appreciation of evidences by the learned trial court.
16. P.W. 1 Sita Ram Mahto, cousin of the informant Sobha Devi
and he is a hearsay witness. The name of this witness has not been
disclosed in the FIR as to whether he has seen the occurrence or
whether he has been narrated the occurrence by the informant or not.
It is the admitted by him that he was present at the time of place of
occurrence on 03.01.95 at about 10 a.m. in his shoe shop. No specific
assault by any one of the appellants has been narrated by these
witnesses even after hearing the incident from the informant.
17. Similarly P.W. 2 Sanjay Kr. Mahto was also not present at the
time and place of occurrence and when the incident took place he
Cr. Appeal (SJ) No. 762 of 2003
was at his shop. At para 13 he has stated that he came to know about
the incident from his mother and sister. But, this fact has not been
narrated by the informant. It has also been admitted by this witness
that there had been a dispute between the parties since 1991. No
specific assault has also been stated by the witness.
18. P.W. 3 Vishnudeo Mahto, who is also the brother of the
informant Sobha Devi. He has categorically stated in para 8 that his
mother and sister had gone to the doctor in the evening whereas the
incident is said to have taken place in the morning at about 10 A.M.
This witness is said to be the eye witness. But, his statement shows
that no offence under sections 323 & 448 IPC has been committed
because neither the victim had gone for her treatment just after the
incident nor the allegations of kidnapping/abduction for the purpose
of committing murder of the informant has ever been proved nor the
charge of theft has been proved as there is no corroborative evidences
to that effect as held by the trial court itself for which these resulting
offences under section 323 & 448 of IPC are also not proved in
absence of any reliable and trustworthy evidences.
19. Thus the trial court has committed error grossly in not
appreciating the evidence of this eye witness P.W.4 who is the wife-
informant. This witness has also admitted that there has been a
maintenance case between them for which a sum of Rs. 450/- was
given by the appellant no. 1, husband. P.W. 4 is the wife of the
appellant no. 1 and it is an admitted case of the long standing
matrimonial dispute since 1990. Her false statement is manifest from
Para 6 in cross examination where she had stated that she did not
know as to whether the maintenance amount has been received by
her or not. Again she has told in subsequent para 8 that there has
been an order passed by the court below in the Maintenance Case No.
5 of 1993 under which a sum of Rs. 400/- has been fixed as
maintenance. It is also admitted that her husband had solemnized
another marriage and despite this fact she did not want divorce from
him and she was contesting matrimonial suit of divorce and therefore
Cr. Appeal (SJ) No. 762 of 2003
possibility of false implication cannot be eliminated. It has also been
admitted by this witness that her husband is an employee in BSL at
Bokaro and defense has been taken on behalf of the appellants that
due to the long standing matrimonial dispute between the husband
and wife (appellant no.1 and informant), the service of the husband
(Appellant no.1) is terminated in BSL at Bokaro as stated by P.W.2
who is full brother of informant-wife in Para 22. Thus the learned
Trial court has failed to appreciate the interested and inimical
witnesses as per the law laid down by Honb'le S.C. in plethora of
cases. In Akalu Ahir and Others versus Ramdeo Ram (1973) 2 SCC
583, the Hon'ble Supreme Court Of India has observed as under :
"2. But enmity as usual is a double edged weapon, providing
motive both for the offence as well as for false implication. The
evidence in such a case has, therefore, to be scrutinized with
care so that neither the guilty party wrongly escapes on the
plea of enmity, nor an innocent person gets wrongly convicted
on that basis."
In the light of aforesaid Principle of Appreciations it is found
that the learned Court below failed to evaluate the evidences under
the facts and circumstances of the case inasmuch as the informant
had the exaggerated allegations against the appellants about the
charges of Kidnapping or abduction in order to murder the informant
by dragging the informant-wife but the same has not been proved
before the learned trial court during the course of trial and therefore,
the alleged assault and house tress-pass becomes doubtful in the
absence of cogent evidences and further, due to admitted fact of the
long standing matrimonial dispute between the husband and wife,
the possibility of false implication for the appellants cannot be ruled
out in absence of iota of corroborative evidence.
20. P.W. 5 Govind Prasad Mahto is the father of the informant. He
was also a hearsay witness and he was not at the place of occurrence
when the alleged incident had taken place and his version is full of
contradictions and not reliable being highly partition witness and a
Cr. Appeal (SJ) No. 762 of 2003
number of matrimonial litigations had been continuing between the
husband and wife.
21. P.W. 6 Dr. Ramesh Prasad was the Doctor who is said to have
treated the informant. It has been admitted by the victim P.W. 4
Sobha Devi that they had gone to the doctor in the evening it shows
that there was neither any assault nor any bodily pain nor injury
because the incident had taken place at 10 am in the morning and
they had visited the doctor in the evening as stated by P.W. 3
Bishundeo. Mahto, who is the brother of the informant-wife, in para
8.
22. P.W.7 is the seizure list witness and the seizure list and his
signature have been exhibited as Ext.4 and Ext.4/1. It is found from
the perusal of seizure list that the alleged electric cable was recover
by the side of the road whereas the alleged incident is said to have
taken place at the 3rd floor of the quarter as stated by the P.W.4 in
Para 49 of her deposition. The learned trial court could not appreciate
the seizure list articles with the charges proved against the accused-
appellants.
23. The learned defense counsel appearing for the appellants
pointing the Ext. 3, ( the report of a private Doctor where the wife-
informant is said to have gone for treatment) urged that the learned
trial court has failed to appreciate the so called injury report
inasmuch as not a single medicine has been prescribed in the said
Ext.3 to the alleged wife-informant (Wife of Appellant no.1) when it
is stated by witnesses P.W.2 in para 2 that in the evening the
informant -wife and her mother had gone to the Doctor for treatment
while the alleged incident has taken place at about 10 A.M. in the
morning on 3.1.95 and further Ext. 3 reveals that only injuries have
been described indicating that the prosecution party had gone to
create the documents for the injury and not for the treatment. It
appears that there is a substance in the contentions raised on behalf of
the appellants. It is well founded from the deposition of P.W. 6 Dr.
Cr. Appeal (SJ) No. 762 of 2003
Ram Naresh Prasad that there was no requisition in his name. P.W. 6
the doctor has stated that injury might be caused because of the fall
on the ground and, therefore, the said version of this doctor is not
supportive the case of the prosecution. Further no alleged
means/weapons, namely, Iron Rod as stated in the FIR by the
informant-wife has been shown to doctor nor seized as evident from
the seizure list Ext. 4 and 4/1 where one electric cable is recovered by
the road side and that too, not from the place of occurrence, even the
seizure list has not been properly proved by its maker. Further the
non-examination of I.O. has also caused prejudice to the defense
when inimical terms due to long standing Matrimonial dispute is
admitted. The learned defence counsel has rightly relied upon the
Authority as reported in 1976 Cri.L.J. 1883 (Ishwar Singh Versus
State of Of U.P.) where under the circumstances of the case it has
been held that it was the duty of the prosecution, and no less of the
court, to see that the alleged weapon of the offence, if available, is
shown to the medical witness and his opinion invited as to whether
all or any of the injuries on the victim could be caused with that
weapon inasmuch as earlier there were allegations of kidnapping and
abducting in order to murder also which could not be proved during
the course of trial.
Further the informant-wife has stated in para 35 that no paper
for medical treatment or examination was given in the police station
and only oral advise was given in the police station for treatment and
further in para 39 the informant-wife categorically stated that no
Medical report was given by the police for the Medical examination,
thus this court comes to a significant finding that the exhibit 3 is not a
reliable document and thus this Court does not find any cogent
evidence against the appellants for causing hurt or house-trespass.
Further, Ext. 4/1 is the seizure list which is said to have been proved
by its one of the witnesses P.W. 7 Bhawani Shankar Sarkar from
which it appears that one electric cable wire was recovered by the
Cr. Appeal (SJ) No. 762 of 2003
side of the road while the said alleged incident is said to have been
taken place on the 3rd floor of the quarter and in the FIR it is also
stated that the iron rod was used for assaulting her and her mother,
but, no iron rod is said to have been recovered or produced by the
prosecution party before the police, thus by the version of this
witness the case of prosecution is falsified about the means used for
assaulting. Further, from the perusal of the statement recorded u/s
313 Cr.P.C. it appears that only evidence with respect to
abduction/kidnapping has been placed before the accused and the
charges of the same has not been proved by the prosecution as the
appellants have been acquitted for the charges of kidnapping or
abducting in order to murder by the learned trial court and therefore
no specific evidences with respect to House-trespass or assault has
been narrated before the accused for recording their defense
statement and, therefore, the statement of the accused persons
recorded by the trial court under section 313 of Cr.P.C. is faulty and
not according to the mandate of legal provisions where the trial court
is under obligation to explain all the circumstances appearing against
accused persons in the evidence as in the present case only about
abduction and kidnapping has been placed before the accused
appellants and as such one of the most important stages of the fair
and just trial is vitiated in view of the fact that the trial court has
failed to examine the accused appellant as per the provisions of law
in absence of any cogent evidences for the alleged House trespass
and the assault within the meaning of sections 448 & 323 IPC in order
to prove the charges levelled under the sections 448 & 323 of IPC.
24. In the backdrop of entire discussions as held above, it is well
founded that the learned trial court has committed error in the
appreciation of the evidences in totality taking into consideration the
aforesaid inferences of the deposition of the witnesses and also the
Exhibits including the written application of FIR, Injury report and
Seizure list and further the admitted position of the long standing
matrimonial dispute between the parties including a number of cases
Cr. Appeal (SJ) No. 762 of 2003
pending between them at the time of incident such as Maintenance
case no.5/93,Divorce case no.92/94,C.P. case no.84/92 etc. as evident
from the testimony of P.W.4 herself. Therefore, the impugned
judgment of conviction and order of sentence dated 31.03.2003 is bad
in law and deserves to be set aside.
25. In the result, the judgment of conviction and order of sentence
dated 31.03.2003 passed against the aforesaid appellants by the court
of learned Additional District & Sessions Judge, Fast Track Court No.
IV, Bokaro in Sessions Trial No. 241 of 1996 is hereby set aside and
this appeal is allowed.
26. The appellants of this appeal are on bail and thus, they are
discharged from the liabilities of their bail bonds in this case.
27. 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 25/10/2021/NAFR
MM/-
