Jharkhand High Court
Ayodhya Mandal vs The State Of Jharkhand on 22 April, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (SJ) No. 442 of 2010
(Against the judgment of conviction and the order of sentence both dated 31.03.2010, passed by
the learned 5th Additional Sessions Judge, FTC, Dumka in Sessions Case No. 236 of 2007 and
Sessions Case No. 106 of 2008)
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1. Ayodhya Mandal, S/o-Late Suryanarayan Mandal,
2. Manikant Mandal, S/o-Ayodhya Mandal
Both residents of village-Kumarsal, PO-Sahra, PS-Taljhari, District-Dumka.
... ... Appellants
Versus
The State of Jharkhand ... .... Respondent
(Through V.C.)
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PRESENT
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellants : Mr. Onkar Nath Tiwary, Advocate
For the State : Mrs. Niki Sinha, APP
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C.A.V. on: 26/11/2021 Pronounced on:22/4/2022
Heard Mr. Onkar Nath Tiwary, the learned counsel for the appellants
and Mrs. Niki Sinha, the learned counsel for the State.
2. The present criminal appeal is preferred against the judgment of
conviction and the order of sentence both dated 31.03.2010, passed by the
learned 5th Additional Sessions Judge, FTC, Dumka in Sessions Case No. 236
of 2007 and Sessions Case No. 106 of 2008, whereby and whereunder, the
appellants were convicted under Section 325/34 of the Indian Penal Code and
sentenced to undergo RI for three years each.
3. The case of the prosecution, in brief, as per the fardbeyan dated
08.01.2007 of the informant Nageshwar Mandal (PW-9) is that on 08.01.2007 at
about 12:00 O'clock noon, informant with his wife were working as a labourer
for digging soil in construction of the dam in the village. Both the appellants
Ayodhya Mandal and Manikant Mandal, who were working with them, were
also digging the soil. Appellants threw soil in the pit, dug by the informant and
when informant tried to stop them, appellants abused the informant and his wife,
but, the other labourers pacified the matter. Informant further stated that when
they returned home in the evening, then, Ayodhya Mandal, Ramgopal Mandal,
2 Cr. Appeal (SJ) No. 442 of 2010
Manikant Mandal and Champa Devi abused them and entered into his house
armed with sticks and axe and started assaulting him. Ayodhya gave axe blow on
the informant's head, causing bleeding head injury. Ramgopal and Manikant
gave lathi blow resulting in fracture of informant's right hand and they also
assaulted on the informant's left hand and other part of the body as a result
informant fell down and became unconscious. Champa Devi assaulted his wife
with fist and blow. Thereafter, informant was taken for treatment at Referral
Hospital, where informant was treated and then he was referred to Dumka, Sadar
hospital.
4. On the basis of the fardbeyan, Jarmundi PS Case. No. 04 of 2007
dated 09.01.2007 was registered under Sections 341, 323, 324, 307, 452 and
504/34 of the Indian Penal Code. After investigation charge-sheet was submitted
against appellants Ayodhya Mandal and Manikant Mandal under Sections 341,
323, 324, 307, 504/34 of the Indian Penal Code and cognizance of the offences
were taken and the case was committed to the court of Sessions. Charges were
framed against both the appellants under sections 341/34, 504/34 and 307/34 of
IPC and trial was held. At the conclusion of the trial the appellants herein were
convicted and sentenced as aforesaid, hence, this appeal.
5. The prosecution had examined altogether ten witnesses out of whom
PW-9 Nageshwar Mandal, is the informant of the case; PW-2 is Manju Devi,
who is the wife of the informant; PW-7 is Prakash Mandal and PW-8 is Suresh
Mandal and both are the brothers of the informant and PW-10 is Dr. Rajeev
Sharma, who had examined the informant. PW-1 is hostile witness and all other
remaining witnesses i.e. PW-3, PW-4, PW-5 and PW-6 are hearsay witnesses.
Defence had examined DW-1 Shivmohan Rana, who is an Advocate Clerk and a
formal witness. DW-1 had proved the injury reports Ext.-A and Ext.- A/1 of
Ayodhya Mandal and Manikant Mandal, certified copy of FIR of Jarmundi PS
Case No. 05/07 and its charge-sheet Ext.-B and Ext.-C respectively.
6. PW-9 Nageshwar Mandal is the informant of the case. Informant had
stated in his evidence that incident was of 08.01.2007 at 07:00 O'clock, in the
evening and he was at his home with his family. Then, Ayodhya Mandal,
Ramgopal Mandal, Manikant Mandal and Champa Devi entered into his house
and dragged him out forcefully and assaulted him in front of the house of Dukhi
Mandal. Ayodhya Mandal assaulted him with tangi (axe) on his head due to
which blood oozed out. Ramgopal Mandal and Manikant Mandal assaulted him
3 Cr. Appeal (SJ) No. 442 of 2010
with lathi on his right hand due to which his hand broke. When his wife came to
save him, then, Champa Devi, slapped her. Informant had proved his signature
on his fardbayan which was marked as Ext.-1. Informant further stated in his
cross-examination that for the same day of occurrence Ayodhya Mandal had
filed a criminal case in which informant himself, his brothers Prakash, Suresh
Mandal and Pappu Mandal were accused and that case was pending.
7. PW10 is Dr. Rajeev Sharma, who had examined the informant
Nageshwar Mandal and had found the following injuries on his person:
"(I) cut injury on the head
(ii) cut injury on the right forearm with pain and swelling
(iii) cut injury below right eye about ½''
(iv) abrasion in face and low back pain"
Doctor further stated that he had advised for X-Ray and referred the
injured to Sadar Hospital, Dumka. Doctor further stated that, subsequently he
received supplementary injury report, on the basis of which he gave opinion.
Doctor opined that injury no.2, showed fracture of lower half of shaft of ulna,
which was grevious in nature. Injury no. 1 and 3 were simple in nature. Doctor
had prepared the injury report and supplementary report of the injured, which
were marked as Ext.-2 and Ext.-2/1 respectively.
8. PW2 Manju Devi, is the wife of the informant. PW-2 had stated in
her evidence that on the day of occurrence at about 5:00 pm, she was in her
home. Her husband had returned from Sahara market, in the meantime Ayodhya
Mandal, Manikant, Champa and Ramgopal arrived there armed with tangi and
lathi and started abusing them. Ayodhya gave tangi blow on the head and right
hand of her husband causing bleeding injury. Manikant, Ramgopal and Champa
assaulted her husband with lathi resulting in fracture of his right hand and
Champa slapped her. On halla, the villagers came then the accused fled away.
Manju Devi further stated that Ayodhya Mandal is her father-in-law in relation
and for the same day of occurrence, a counter case was instituted by Ayodhya
Mandal.
9. PW7 is Prakash Mandal, who is the brother of the informant. PW-7
had stated in his evidence that on halla he came out and saw Ayodhya Mandal
was assaulting the informant with tangi on the head, temple and right hand as a
result his right hand was broken.
10. PW8 is Suresh Mandal, who is also the brother of the informant.
PW-8 had stated in his evidence that he had seen the occurrence of assault.
4 Cr. Appeal (SJ) No. 442 of 2010
Ayodhya Mandal gave tangi blow on the head of the informant Nageshwar,
causing bleeding head injury and Manikant and Ramgopal gave lathi blow to the
informant causing fracture of his right hand.
ARGUMENTS ON BEHALF OF APPELLANTS
11. Mr. Onkar Nath Tiwary, the learned counsel for the appellants has,
first and foremost, submitted that the trail was proceeded in which altogether 10
witnesses were examined by the prosecution, out of which PW-1 was declared
hostile and PW-3, PW-4, PW-5 and PW-6 are hearsay witnesses and hence, not
an eyewitness and PW-2, PW-7 and PW-8 are the interested witnesses. Learned
counsel further submitted that there are contradictions in evidences of the
informant PW-9 and PW-10 doctor, which demolish the entire prosecution case.
12. Learned counsel for the appellants has further submitted that neither
the place of occurrence in this case is proved nor mentioned in the impugned
order as there is contradiction in the statement of the informant in the FIR and in
the deposition as well as in the case diary. Investigating Officer in paragraph No.
10 of the case diary had stated that the place of occurrence is 20 feet away in the
village road near the Dukhi Mandal's house and hence, the version of the PW-9
informant gets falsified in this case. Counsel has further submitted that the
Investigating Officer was not examined and, therefore, the relevant fact with
respect to the place of occurrence and institution of the First Information Report
could not be proved by the prosecution and no independent witnesses in this
case was also examined though the incident alleged to happen in a village road.
13. Learned counsel has also submitted that this incident may have
occurred due to spur of moment and who provoked or caused this situation
could not be proved as the informant and the appellants are the close relative
(gotiya) and, therefore, the appellants intention could not be proved in this case
rather the tangi blow over the informant is negated by the medical evidence of
PW-10 doctor.
14. The learned counsel for the appellant further submitted that
there is a case and counter case between both the parties. Appellant no. 1
Ayodhya Mandal had also lodged a First Information Report being Jarmundi P.S.
Case No. 05/ 2007 dated 09.01.2007 under Sections 341, 323, 325 and 504/34 of
the Indian Penal Code and police had submitted charge-sheet against the
informant Nageswar Mandal. Both the appellants herein were injured in this
scuffle and their injury reports Ext.-A and Ext.- A/1 are on record. Learned
5 Cr. Appeal (SJ) No. 442 of 2010
counsel further submitted that PW-9 informant, who is himself a perpetrator, by
holding a lathi had himself injured the appellants by the lathi blow and this fact
is further corroborated by the Ext.-D and Ext.-D/1 which is the injury
requisition.
15. Learned counsel further submitted that on the basis of the
prosecution evidences, the learned trail court had acquitted the other co-accused
Champa Devi by not relying upon the statement of PW-9 Nagehswar Mandal,
however, convicted the accused or the appellants herein Ayodhya Mandal and
Manikant Mandal by relying upon the statement of PW-9 Nageshwar Mandal
which is absolutely contradictory in nature and hence, benefit of doubts may be
given to the other co-accused or the appellants herein. The learned counsel has
referred to and relied upon the judgment passed by the Hon'ble Supreme Court
in the case of Jodhraj and others v. State of Rajasthan reported in (2020) 14
SSC 205, Pukar Singh & Anr. v. State of Bihar reported in 2012 (2) East Cr C
87 (Pat), State through C.B.I. Anti Corruption Branch, Chandigarh v. Sanjiv
Bhalla & Anr. reported in (2015) 13 SCC 444, Om Prakash & Ors. v. State of
Haryana reported in (2001) 10 SCC 477 and Balbhadar Sahu @ Bhadar & Ors.
v. State of Jharkhand reported in (2011)1JLJR461. Learned counsel referring to
the judgment of Balbhadar (Supra) submitted that due to non-examination of
the Investigating Officer in the case in hand has also caused prejudice to the
appellants as place of occurrence was not proved.
16. Learned counsel for the appellants further referred to the evidence of
PW-10 doctor and submitted that doctor had opined that out of the three injuries,
injury no.(i) and (iii) were simple in nature and injury no.(ii) was grievous. But
injury no.(II), which is fracture of lower half of shaft of ulna, was wrongly
opined as grievous in nature without the X-Ray report and the X-Ray plate.
17. Learned counsel lastly without admitting the guilt of the appellant
submitted that appellant no.1 Ayodhya Mandal is of 67 years of age and
appellant no.2 Manikant Mandal was of tender age of 19 years at the time of
occurrence and both the appellants have undergone near about 2 months in
custody and have served sufficient punishment and this circumstances shall be
taken into account while deciding the appeal.
ARGUMENTS ON BEHALF OF STATE
18. Mrs. Niki Sinha, the learned APP has, on the other hand, argued that
this is a case of sufficient reliable witness and corroboration by the medical
6 Cr. Appeal (SJ) No. 442 of 2010
evidence of the doctor. Hence, non-examination of the Investigating Officer is
of no adverse consequence. The learned APP has further argued that in the First
Information Report, PW-9 informant has clearly stated that appellants had
damaged the informant's work. Thereafter, in the evening, the accused persons
including the appellants herein entered into the house of the informant and
assaulted him. Description of assault is given in the fardbeyan as well in the
deposition of the witnesses PW-2 wife and two brothers of the informant PW-7
and PW-8, who were the eye-witnesses to the assault. Corroboration of injuries
by Dr. Rajeev Sharma PW-10, have established sufficient evidences to convict
the appellants and hence, their sentences may also be sustained.
FINDINGS
19. Having heard both the counsels, gone through the records of the case
and the evidences of the prosecution witnesses, I find that matter pertains to case
and counter case between both the parties. Informant PW-9 Nageshwar Mandal
had registered FIR being Jarmundi Case no. 04/2007 dated 09.01.2007 against
the appellants herein under sections 341, 323, 324, 307, 452 and 504/34 of IPC
and counter case being Jarmundi P.S. Case No. 05/2007 dated 09.01.207 was
registered by the appellant No.1 Ayodhya Mandal herein under sections 341, 323,
325 and 504/34 of IPC against the informant herein. But, the judgment of the
learned trial court of the counter case arising out of Jarmundi P.S. case no.
05/2007 is not on record. So, this court, is unable to come to the conclusion
whether the ratio of Nathi Lal and others v. State of U.P. and another reported
in 1990 (Supp) SCC 145 was followed or not, which says that both the cross
cases must be tried by the same learned judge one after the another and both the
judgments must be pronounced by the same learned judge one after the other.
Hence, which party was the aggressor cannot be ascertained.
20. As per the First Information Report, both the appellants Ayodhya
Mandal and Manikant Mandal had initially disturbed the informant Nageshwar
Mandal and his wife, who were working at the construction site or place.
Thereafter, when informant returned home then appellants Ayodhya Mandal had
given axe blow on the head of the informant causing bleeding injury on his head
while appellant Manikant Mandal had assaulted the informant with lathi which
resulted in fracture on his right hand and injuries on the other parts of the body.
In his evidence also informant PW-9 Nageshwar Mandal had deposed that
appellant no.1 Ayodhya Mandal had assaulted him with axe on his head due to
7 Cr. Appeal (SJ) No. 442 of 2010
which blood oozed out and appellant no.2 Manikant Mandal had assaulted him
with lathi, due to which, his right hand was broken. PW-2 Manju Devi, who is
the wife of the informant and two brothers of the informant PW-7 Prakash
Mandal and PW-8 Suresh Mandal had also witnessed the assault on the
informant and all these witnesses have corroborated the assault on the informant
in their depositions.
21. In the evidence of the doctor, it is seen that Nageshwar Mandal had
sustained four injuries (i) cut injury on the head, (ii) cut injury on the right
forearm with pain and swelling, (iii) cut injury below right eye about ½'', and (iv)
abrasion in face and low back pain. Doctor had referred the injured to the Sadar
Hospital, Dumka and had prepared supplementary report of the injured
informant which is Ext.-2/1. Doctor had opined that injury no.(ii), which was the
fracture of the lower shaft of ulna was grievous in nature.
22. Therefore, from a combined reading of the evidence of the injured
informant PW-9 and eye-witnesses PW-2, PW-7 and PW-8, which is supported
by the injuries report of the informant viz. Ext.-2 and Ext.-2/1, what seems to
appear is that the informant Nageshwar Mandal, was assaulted on the head by
appellant no.1 Ayodhya Mandal with an axe which led to bleeding injury on his
head. Appellant no.2 Manikant Mandal had assaulted the informant with lathis
leading to fracture of his right hand and injuries on other parts of the body. So,
the ocular evidence of the injured informant and the eye-witnesses PW-2, PW-7
and PW-8 are corroborated by the medical evidence of the doctor PW-10.
23. The learned counsel for the appellants has cited the judgment passed
by the Hon'ble Supreme Court in Balbhadar Sahu (supra) to stress on the
necessity of the Investigating Officer be examined and pressed that in this case
the Investigating Officer has not been examined and, therefore, the appellants
have been grossly prejudiced. However, this Court is of the view that there are
two definite eyewitnesses, that is, the husband and wife themselves of which the
husband or the informant is an injured witness and has received as many as four
significant injuries. Further, in view of injury reports Ext.-2 and Ext.-2/1 of the
injured informant, no prejudice is caused to the appellants.
24. Hence, based on the aforesaid reasonings this Court upholds the
conviction of the appellants dated 31.03.2010 passed by the learned
th
5 Additional Sessions Judge, FTC, Dumka in Sessions Case No. 236 of 2007
and Sessions Case No. 106 of 2008.
8 Cr. Appeal (SJ) No. 442 of 2010
25. So, far as sentence is concerned, it is noted that the occurrence is of
the year 2007 and the impugned judgment is of the year 2010 and by now
almost 15 years have passed. It is also said that both the parties are gotias.
Appellant no.1 Ayodhya Mandal at the time of conviction was 55 years of age
and by now he would be about 67 years of age and appellant no.2 Manikant
Mandal was a relatively young person of only 22 years at the time of judgment.
There is no reference in the judgment that the appellants had any prior criminal
case or antecedent prior to this occurrence. Hence, given the mitigating
circumstances and appellants have undergone some period of sentence, this
Court is of the view that, at this stage, it would not be appropriate to send the
appellants into custodial sentence and period undergone by the appellants are
considered as sentence adequately served. However, I impose compensation, for
causing injuries to the informant PW-9 Nageshwar Mandal of Rs. 5000/- each
on both the appellants, that is, total of Rs.10,000/- to be paid to the informant
Nageshwar Mandal within four months from the date of receipt of copy of this
judgment. In default of payment of the compensation, appellants shall undergo
two months SI. The compensation amount may be deposited in the concerned
court below and the appellants shall be discharged from the liability of bail
bonds after payment of compensation amount. The concerned court shall carry
out the order of this court.
26. Accordingly, appeal is dismissed with above modification in
sentence.
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated:22/4/2022
Madhav-NAFR
