Madan Mahto vs The State Of Jharkhand
2021 Latest Caselaw 3289 Jhar

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                       Cr. Revision No. 541 of 2003

           1. Madan Mahto S/o Jagan Mahto
           2. Raju Mahto @ Rajkishore Mahto S/o Shesh Nath Mahto,
           3. Mahadeo Mahto S/o Bhushan Mahto
              All are residents of Kalipur, P.S.- Baliapur,
              District-Dhanbad                         ...    ... Petitioners
                                    Versus
              The State of Jharkhand                   ...    ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through: Video Conferencing

08/07.09.2021

1. Heard Mr. Shubham Mishra, learned counsel appearing on behalf of the petitioners.

2. Heard Mr. Md. Hatim, learned A.P.P. appearing on behalf of the Opposite Party-State.

3. The present criminal revision application is directed against the judgment and order dated 17.12.2002 passed by the learned Additional Sessions Judge-XIII, Dhanbad in Criminal Appeal No. 10 of 2001, whereby the learned appellate court has dismissed the appeal preferred by the petitioners by upholding the judgment of conviction and order of sentence dated 09.01.2001 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in G.R. Case No. 3463/1995.

4. The learned trial court had convicted the Petitioner Nos. 1 and 3 for offence under Sections 323 and 341 of IPC and had sentenced them to undergo simple imprisonment for 10 days under Section 341 of IPC and simple imprisonment for four months under Section 323 of IPC. Further, the learned trial court had convicted the Petitioner No.2 for offence under Sections 354 and 341 of IPC and had sentenced him to undergo S.I. for 10 days under Section 341 of IPC and S.I. for eight

months under Section 354 of IPC. All the sentenced were directed to run concurrently.

Arguments on behalf of the petitioners

5. Learned counsel appearing on behalf of the petitioners submitted that in the present case, there are altogether three petitioners; out of them Petitioner Nos.1 and 3 have been convicted for offence under Sections 341 and 323 of the Indian Penal Code and have been sentenced to undergo simple imprisonment of 10 days under Section 341 of IPC and simple imprisonment for four months under Section 323 of IPC. The learned counsel submitted that so far as Petitioner No.2 is concerned, he has been convicted for offence under Sections 354 and 341 of IPC and has been sentenced to undergo simple imprisonment of 10 days for offence under Section 341 of IPC and simple imprisonment for eight months for offence under Section 354 of IPC.

6. The learned counsel submitted that the false implication of the petitioners cannot be ruled out in view of the fact that it has come on record that the complainant had made an allegation of rape against the Petitioner No.2 which ultimately ended in a compromise in village Panchayati. He submitted that this aspect of the matter has not been properly considered by the learned courts below and accordingly, the petitioners are entitled to benefit of doubt. He also submitted that no independent witnesses have been examined in the present case and both witnesses are the brothers of the informant and investigation officer of the case has been examined.

7. Without prejudice to the aforesaid submissions, the learned counsel submitted that the present offence is of the year 1995 and about 26 years have elapsed from the date of occurrence and the petitioners had surrendered before the learned court below on 16.06.2003 during the pendency of this

revision application and were directed to be enlarged on bail by this Court on 26.08.2003 and a few days must have been taken to furnish the bail bonds. Thus, the petitioners have remained in custody for about two and a half months. The learned counsel submitted that the age of Petitioner No.1 on the date of conviction i.e. 09.01.2001 was 44 years and that of Petitioner Nos.2 and 3 were 33 years and 26 years respectively and accordingly, the present age of the petitioners are 64 years, 53 years and 46 years respectively and much time have elapsed from the date of occurrence which is dated 18.09.1995. He also submitted that some sympathetic view may be taken as there is no previous conviction of the petitioners recorded as such.

Arguments on behalf of the Opposite Party -State

8. Learned A.P.P. appearing on behalf of Opposite Party - State, on the other hand, opposed the prayer and submitted that there are concurrent findings recorded by the learned courts below after scrutinizing the materials on record and there is no scope for re-appreciation of materials on record and coming to a different finding. He further submitted that so far as petitioner No.2 is concerned, the allegation against him is more serious particularly because of the fact that he has been convicted for offence under Section 354 of the Indian Penal Code, which is an offence against women. He further submitted that so far as petitioner Nos.1 and 3 are concerned, it is up to this Court to pass an appropriate order on the point of modification of sentence.

Findings of this Court

9. The prosecution case, in brief, is that one Sharma Devi (informant of the case) had gone to the field on 18.09.1995 at about 5 P.M. to attend the nature call and when she was returning to her house, the present petitioners came near the

pond and surrounded her, abused her and started teasing her. Petitioner No.1 Madan Mahto caught hold her hair due to which she fell down and Petitioner No.2 Raju Mahto started removing the clothes from her body. The informant raised alarm, upon which, her brother Binod Mahato alongwith Tarapodo Mahto came there. Petitioner No.3 Mahadeo Mahto assaulted the informant with bamboo, due to which, she sustained cut injury on her finger of her left hand. It was further alleged that Petitioner Nos.1 and 2 also assaulted her with fists and it was also mentioned in the F.I.R. that accused-Raju Mahto had earlier committed rape on her, for which, a rape case was registered against him, which ended in a village panchayati and the present offence had been committed with a view to taking revenge by the petitioners. The informant reported the matter to the police and after recording her fardbeyan, a case was registered under Sections 341/323/354/511 of IPC against the present petitioners. After investigating the case, charge-sheet was submitted under Sections 341/323/354/511 of IPC and cognizance was taken by the learned court below on 08.11.1995 under the same Sections. The substance of the accusation was explained to the petitioners in Hindi to which they pleaded not guilty and claimed to be tried. After closure of evidence of the prosecution witnesses, the statements of the petitioners were recorded under Section 313 of Cr.P.C. wherein they totally denied the allegation levelled against them and claimed to be innocent.

10. During the course of trial, altogether four witnesses were examined on behalf of the prosecution; out of them P.W.-3 is the informant of the case, who stated that on 18.09.1995 at about 5 P.M., she had gone to the field to attend the nature call and in the meantime, all the accused persons came there and accused- Madan Mahto (Petitioner No.1) caught hold her hair and she

fell down, accused-Raju Mahto (Petitioner No.2) with ulterior motive started removing her clothes from her body and accused-Mahadeo Mahto (Petitioner No.3) assaulted her with bamboo and she sustained injury on her finger of her left hand. When she raised alarm, the accused persons tried to take her to the hotel of accused-Madan Mahto in order to commit rape upon her. Upon hearing hullah, her brother and one Tarapado Mahto came there and then the accused persons fled away. She further stated that earlier accused-Raju Mahto had committed rape on her, for which, a case was registered against him, which was ultimately compromised in a village panchayati and that is why, the accused persons committed the offence in order to take revenge from her. She has been fully cross-examined from the side of the defence and in her cross-examination, she stated that after marriage, she did not go to her in-laws' house, but this fact was not found to be enough to discredit her testimony. During her cross-examination, it was put to her that she had taken money from the accused persons while she compounded the case of rape and again, she is willing to take money from the accused persons and thus, she had instituted a false case against them, but the informant denied this suggestion.

11. P.W.-1 Binod Mahto is the brother of the informant and he has fully supported the prosecution case. He stated that on hullah, he reached near the place of occurrence alongwith Tarapado Mahato. He stated that a rape case was instituted by the informant against the accused-Raju Mahto which was compromised in a village panchayati. He has been cross- examined from the side of the defence. P.W.-2 Tarapado Mahto has also fully supported the prosecution case.

12. P.W.-4 Rajendra Singh is the investigating officer of the case. He stated that he had recorded the statements of the witnesses and had inspected the place of occurrence. According

to his evidence, the place of occurrence was also established. He has proved the endorsement on the fardbeyan as Ext.-1 and the formal F.I.R. as Ext.-2.

13. The defence also examined one witness namely, Satya Pado Mahto (D.W.-1) who is a formal witness. He proved one application written by the villagers addressed to the Judicial Magistrate, Dhanbad which was marked as Ext.-A. The learned court below found that some persons had put their signatures and requested the court to exonerate the accused persons as they were of good character, but the learned court below was of the view that this document does not help the petitioners at all.

14. The learned trial court considered the evidences on record and held that the prosecution witnesses have fully supported its case and also supported the place of occurrence and the manner of occurrence. The learned trial court recorded that the prosecution has been able to prove the offence under Section 341 of IPC against all the accused persons. So far as the offence under Section 354 of IPC is concerned, only Raju Mahto Petitioner No.2 was convicted he was removing the clothes of the informant from her body. So far as conviction under Section 323 of IPC is concerned, the learned trial court convicted the Petitioner Nos. 1 and 3 under Section 323 of IPC. Accordingly, the learned trial court convicted the Petitioner Nos.1 and 3 for offence under Sections 323 and 341 of IPC and sentenced them accordingly and also convicted the Petitioner No.2 for offence under Sections 354 and 341 of IPC and sentenced him accordingly.

15. So far as the learned appellate court is concerned, it also scrutinized the materials on record and considered the plea of previous enmity between the Petitioner No.2 and the informant and recorded that it has come in evidence that the informant had instituted a rape case against Petitioner No.2 which ended

in a compromise in village Panchayati. The learned appellate court also recorded that previous enmity is established between the parties, but it is well-settled that enmity is a double-edged weapon which cuts the prosecution and the defence as well and in the view of the learned appellate court, it had cut the defence. The learned appellate court refused to interfere with the judgment and findings of the learned trial court which the learned appellate court found to be a well-reasoned order and there was nothing to interfere. The learned courts below also found that the sentences of the petitioners were sufficient.

16. This Court finds that the impugned judgments passed by the learned courts below are well-reasoned judgments and the judgment of conviction do not call for any interference in revisional jurisdiction. The learned counsel for the petitioners has not been able to satisfy to this Court on the point of any illegality, perversity or irregularity in the impugned judgments. Merely because there are no independent witness, the same by itself cannot be a ground for creating any doubt in the prosecution case, particularly in the instant case where the victim herself has been examined and the other witnesses as well as the victim have been fully cross-examined from the side of the defence.

17. However, considering the fact that there is no previous conviction of Petitioner Nos.1 and 3 on record and the incident is of 18.09.1995 and much time has elapsed and these two petitioners have at least remained in custody for a period from 16.06.2003 to 26.08.2003 during the pendency of the present revision application, this Court is of the view that ends of justice would be served, if the sentence of these two petitioners are modified to some extent as they have faced the rigour of criminal case for a long time. So far as the sentence under Section 341 of IPC is concerned, they have already served the

same as they were sentenced only for ten days. So far as the sentence under Section 323 of IPC is concerned, the sentence of Petitioner Nos.1 and 3 is hereby modified and limited to the period already undergone by them in custody with fine of Rs.1000/- each and victim compensation of Rs. 5,000/- each to be deposited before the learned court below within a period of two months from the date of communication of a copy of this order to the learned court below. The entire victim compensation amount is directed to be remitted to the victim- P.W.-3 upon due identification.

18. If the aforesaid fine amount is deposited within stipulated time frame, the bailors of the Petitioner Nos.1 and 3 shall be discharged from their liabilities under the bail bonds. In case, the fine amounts are not deposited within the stipulated time frame, the bail bonds furnished by Petitioner Nos.1 and 3 will be immediately cancelled by the learned court below and they would serve the sentences as imposed by the learned trial court.

19. So far as Petitioner No.2 is concerned, the allegation against him is more serious. He has been convicted under Sections 354 as well as 341 of IPC and considering the nature of offence and manner, in which, it has been committed by him, this Court is not inclined to modify the sentence of Petitioner No.2.

20. Accordingly, the conviction of the petitioners is upheld and the sentences of Petitioner Nos.1 and 3 are modified to the extent indicated above and no interference is called for, so far as Petitioner No.2 is concerned. Consequently, this criminal revision petition is hereby disposed of.

21. Bail bond furnished by the Petitioner No.2 is cancelled.

22. Pending interlocutory applications, if any, are closed.

23. Let the lower courts record be sent back to the learned court below.

24. Let a copy of this order be communicated to the learned court below through 'e-mail/FAX'.

(Anubha Rawat Choudhary, J.) Mukul