Manohar Mandal vs The State Of Jharkhand
2022 Latest Caselaw 3117 Jhar

                                        1           Cr. Appeal (SJ) No.903 of 2005

               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         Cr. Appeal (SJ) No.903 of 2005

        (Against the Judgment of Conviction dated 20.04.2005 passed by learned
        1st Additional Sessions Judge, Dumka in Sessions Case No.263 of 1995,
        arising out of Saraiyahat P.S. Case No.68 of 1993, corresponding to G.R.
        Case No.590 of 1993.)

               Manohar Mandal                           ...     Appellant
                                     Versus
               The State of Jharkhand                ...    Respondent
                                      ---

CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

---

               For the Appellant          : Mr. Durga Charan Mishra, Advocate
               For the State              : Mr. Tarun Kumar, A.P.P.

6/10.08.2022        This appeal is directed against the Judgment of Conviction

dated 20.04.2005 passed by learned 1st Additional Sessions Judge, Dumka in Sessions Case No.263 of 1995, arising out of Saraiyahat P.S. Case No.68 of 1993, corresponding to G.R. Case No.590 of 1993, whereby and where under the accused appellant has been convicted for the offence punishable under Section 324 of IPC, and has been directed to be released under the provisions of section 4(1) of Probation of Offenders Act, 1958 read with section 360 of Cr.P.C. on entering in to a bond of Rs. 5000/- (Rs. Five thousands) with two sureties of the like amount each for a period of two years.

2. The prosecution case arose on the beyan of informant Bishwnath Mandal (PW-4) on 17.07.1993 at 12:45 p.m. The prosecution case, in brief, is that on 17.07.1993 at about 9.30 AM, the informant Bishwnath Mandal (PW-4) of village Kordiha, P.S.- Saraiyahat, Distt.-Dumka along with his family members came to the P.O. land with their Bullocks etc. for ploughing the land and was planting the seedlings there meanwhile all the accused persons, (Manohar Mandal, Raju Mandal, Biru Mandal, fuldhar Rout, Saru Mandal, Karu Mandal, Surendra Mandal, Bhopal Mandal, Raju Mandal, Sundar Mandal,) forming an unlawful assembly armed with deadly weapons along with one accused Sokhi Mandal & Sokhi Mahto (since dead) arrived there and surrounded the informant with a motive to kill him. It was stated the accused Manohar Mandal 2 Cr. Appeal (SJ) No.903 of 2005

gave a Tagari blow upon the head of the informant causing injuries to him and the rest accused persons assaulted the informant and his father Antu Mandal and to his brother Kailash Mandal. The witnesses of the village namely Jay Prakash Mahto, Nishiwar Ram and Jyotish Layak and others witnessed the occurrence. It was disclosed that the reason behind the alleged occurrence was that there was chronic land dispute between the accused Manohar Mandal and the informant since last five years and the P.O land at Aswari, P.S.-Saraiyahat, Distt.-Dumka was settled in his favour last year by the Settlement Officer.

3. On the aforementioned statement of the informant Bishwnath Mandal (PW-4), a case was registered by the Police as Saraiyahat P.S. Case No.8/93 dated 17.7.93 against the accused persons u/s 147, 148, 149, 447, 323, 324 and 307 I.P.C. The Police took up investigation and submitted charge-sheet against the accused persons and thereafter the cognizance was taken by the learned CJM on 13.9.93 in this case u/s 147, 323/307 of I.P.C. and subsequently on 30.08.95, the case was committed to the Court of Sessions. The 3rd Additional Sessions Judge, Dumka had framed charge under sections 147 and 307 of IPC and the learned trial court after conducting the full fledged trial, passed the impugned judgment of conviction and order of release on probation.

4. Heard Mr. Durga Charan Mishra, the learned defence Counsel appearing on behalf of the appellant and Mr. Tarun Kumar APP appearing on behalf of the State.

Arguments advanced on behalf of the appellant

5. Learned defence counsel appearing on behalf of the appellant submitted that the learned trial court committed gross error in the appreciation of the evidence because of the fact that neither the doctor nor the I.O. in this case has been examined and therefore the offence under Section 324 of IPC has not been substantiated and as such non-examination of the doctor and the I.O. has caused serious prejudice to the defence of the appellant. It has further been submitted that the learned trial court has failed to appreciate the 3 Cr. Appeal (SJ) No.903 of 2005

right of private defence of the appellant and no independent witness was examined to support the case of prosecution and only the family members, who are highly interested witnesses, have been examined on behalf of the prosecution. It has also been submitted on behalf of the appellant that even the co-villagers, who are said to be the eyewitnesses and named in the FIR in beyan have not been examined and therefore Sections 324 of IPC is not supported. Further it has also been pointed out that some documentary evidences have also been adduced on behalf of the appellant, which are Ext. A- the certified copy of settlement purcha in S.C. No.263/1995, Ext- B- certified copy of order dated 03.08.1993 passed in Revenue Misc. Appeal No.21/1989-1990 by the learned Commissioner, S.P. Division, Dumka, Ext. -C Certified copy of order dated 13.10.1938 to 20.02.1939 passed in Settlement Fouti Case No.91/1938-1939 by the then SDO, Dumka and Ext. - D - certified copy of order dated 07.10.1993 and 28.01.1994 to 23.11.1994 passed by the Hon'ble High Court, Patna in CWJC No.10367/1993 and by which, it appears that the place of occurrence, i.e. landed property was belonging to the appellant and not to the prosecution party and therefore it is urged on behalf of the appellant that the impugned judgment of conviction and order of release on probation is bad in law and fit to be set- aside.

Arguments advanced on behalf of the State

6. On the other hand, learned APP vehemently opposed the contentions raised on behalf of the learned counsel for the appellant and submitted that the sole appellant has been convicted for the offence under Section 324 of IPC, which is fully substantiated and corroborated by the injured PW - 4 Bishwnath Mandal (informant). It has also been pointed out that initially the appellant along with other co-accused persons were charged with under Sections 147 & 307 of IPC, but after appreciating the evidences, the learned trial court has convicted the sole appellant under Section 324 of IPC and since the doctor and the I.O. have not been examined in this case and therefore the offence under Section 307 of IPC was not substantiated 4 Cr. Appeal (SJ) No.903 of 2005

and the appellant was acquitted from the charge under section 307 of IPC but convicted under section 324 of IPC and hence it is submitted on behalf of the learned counsel for the State that let this appeal be dismissed for want of merit.

Appraisal & Findings

7. Having heard the learned counsel for the parties, perused the records including the lower court record.

8. In order to substantiate its case, the prosecution has been able to examine altogether six witnesses namely PW- 1 Kailash Mahto, PW - 2 Jagarnath Mandal, PW - 3 Arjun Mandal, PW - 4 Bishwnath Mandal (informant) PW - 5 Baldeo Mandal and PW - 6 Rajendra Mandal.

Apart from the ocular evidences, the prosecution has brought on record the formal FIR, which has been marked as Ext. 2 and the injury report, which has been marked as Ext.3 to 3/2 and the signatures of Arjun Mandal and Bishwnath Mandal on the beyan, which have been marked as Exts.1 and 1/a, which have been proved by the informant PW- 4 and PW- 3 Arjun Mandal.

On the other hand, the defence adduced some documentary evidences and they are as under.

"Ext. A- the certified copy of settlement purcha, in S.C No. 263/1995 Ext- B- certified copy of order dated 03.08.93 passed in Revision Misc. Appeal No.21/1989-90 by the learned Commissioner, S.P. Division Dumka, Ext. -C Certified copy of order dated 13.10.38 to 20.02.39 passed in Settlement Fouti Case No.91/1938-39 by the then SDO, Dumka Ext. - D - certified copy of order dated 07.10.1993 and 28.01.1994 to 23.11.1994 passed by the Hon'ble High Court, Patna in CWJC No.10367/1993"

9. It is found that it is admitted case of the prosecution that there had been landed property dispute between both the parties, particularly between the informant and the appellant Manohar Mandal since last five years. It is well settled principal of law that enmity is the double edged weapon and the possibility of 5 Cr. Appeal (SJ) No.903 of 2005

committing the offence as well as possibility of false implications are imminent and in the present case when the enmity due to the landed property dispute is admitted fact and the evidences adduced are on inimical terms and therefore it requires great caution and care in appreciation of the evidences.

10. In this background this Court proceeds to examine the appreciation of evidences adduced on behalf of the prosecution and also on behalf of the appellant vis-a-vis the findings of the learned court below.

11. It is found that PW - 4 Bishwnath Mandal was the informant of the case and he had also sustained the injuries. He stated that several accused persons including this appellant had reached the place of occurrence at his agricultural field while he was ploughing the land and the appellant along with the other co-accused persons formed unlawful assembly and protested as to why they were ploughing the field? upon which, the informant answered that the agricultural field (P.O.) was belonging to him, upon which, the accused appellant Manohar Mandal had assaulted him by kulhari upon his head, as a result of which, the blood started oozing from his head. This witness stated that other co-accused person namely Phuldhar Raut had assaulted him by iron rod and another accused Biru Mandal had assaulted him by a chain of cycle and the accused Raju Mandal had assaulted him by lathi and as a result of which, the informant become senseless. He had also stated that one Kailash Mandal (his brother) were also assaulted by the accused Sundar Mandal. He had also stated that after sustaining the injuries, the informant and others tried to ran away from the place of occurrence, but the accused persons chased them and assaulted and thereafter he went to the police where his statement was recorded and he proved the signature on the beyan, which has been marked as Ext.1/a.

12. Having gone through the deposition of this witness, it is found that no inconsistency is found in the manner and mode of occurrence and assault as set-out in the FIR and therefore the 6 Cr. Appeal (SJ) No.903 of 2005

learned trial court has rightly appreciated the deposition of this witness. In the cross-examination, the defence drew the attention of this witness on the point of enmity due to landed property dispute and also that the land was belonging to the appellant, as he had won the case in a litigating case and therefore took the defence that he had been falsely implicated in this case. Even if, it is true, but the injuries, which are stated by this witness inflicted upon him and his father and other injured person remained to take into consideration for the purpose of his conviction and found that the learned trial court has rightly held the guilt of the accused-appellant after appreciating the evidence of this injured witness PW - 4 for the offence punishable under Section 324 of the IPC and no material fact has been elicited in the cross- examination to disbelieve his version. Further the plea of right to private defence, as taken on behalf of the appellant, has rightly been dealt with by the learned court below and came to the finding that the accused appellant was seemingly aggressor and therefore he had no legal right to assault the informant and his men, especially when there was no case of the accused that they had grown any crops at the P.O., i.e. agricultural field. Learned trial court has rightly appreciated and discarded the plea of right of private defence because of the settled principle of law that the right of private defence is not available to the aggressor party as held in a catena of judgments of Hon'ble Supreme Court. The defence in support of his right of private defence and claim over the land, which is the place of occurrence by bringing on record by the appellant several documents including Ext. A- the certified copy of settlement purcha, in S.C. No. 263/1995, Ext- B- certified copy of order dated 03.08.1993 passed in Revision Misc. Appeal No.21/1989-90 by the learned Commissioner, S.P. Division Dumka, Ext. -C Certified copy of order dated 13.10.38 to 20.02.39 passed in Settlement Fouti Case No.91/1938-39 by the then SDO, Dumka and Ext. - D - certified copy of order dated 07.10.1993 and 28.01.1994 to 23.11.1994 passed by the Hon'ble High Court, 7 Cr. Appeal (SJ) No.903 of 2005

Patna in CWJC No.10367/1993 have been produced and the learned trial court has rightly taken into consideration all the Exhibits and found that it is admitted case of the prosecution that there had been a dispute of landed property between both the parties, but in view of the categorical deposition of the injured PW -4, which is subsequently been corroborated by the other witnesses examined on behalf of the prosecution, it is found that the conviction of the appellant under Sections 324 of IPC has rightly been held.

13. PW - 1 Kailash Mahto, who stated that the accused persons including this accused appellant along with the co- accused persons, who were convicted for the offence punishable under Section 323 of IPC, but not before this Court in this appeal, had assaulted upon the informant and his men. In examination- in-chief he had stated that accused Manohar had assaulted on the head of Bishwnath Mandal by kulhari.

14. Similarly PW - 2 Jagarnath Mandal had also corroborated the version of the informant on the point of assault by the accused persons for the same.

15. PW - 3 Arjun Mandal is the FIR named witness and he has proved his signature on the beyan, which has been marked as Ext. 1, stated that the informant and his men were assaulted by the accused persons. In examination-in-chief he had also stated that accused Manohar Mandal had assaulted on informant Bishwnath Mandal by kulhari. In para 7 he had stated that Bishwnath Mandal has sustained injury on head and 3 persons were injured. And as such it is found that the versions of PW - 4 Bishwnath Mandal has been corroborated by PWs - 1, 2 and 3.

16. Further it has also found that the learned trial court has discarded the deposition of PW - 5 Baldeo Mandal, because of inconsistency, as he was a hearsay witness, but later on, he started deposing as an eyewitness. But he had also corroborated the version of the informant on the point of assault and unlawful assembly made by the accused persons (as evident from para 4 of 8 Cr. Appeal (SJ) No.903 of 2005

his deposition) for the same.

17. PW - 6 Rajendra Mandal is a formal witness, who has proved the FIR and the injury report, which have marked as Ext. 2 and Ext. 3 to 3/2, although the doctor in this case had not been examined and therefore the appellant has been debarred from his valuable right to test in the cross-examination with respect to the injuries alleged to have been inflicted upon the informant PW - 4, but at the same time, the learned trial court has rightly appreciated the injuries as inflicted upon PW - 4 from his version, prima facie perusal of the injury reports, which have marked as Exts. 3 to 3/2, particularly the injury report, Ext. 3/1 of the informant. From perusal of the injury report Ext. 3/1, although, it has not been duly proved as per the prescribed procedure of law, it is found that all the injuries inflicted upon the informant PW - 4 were simple in nature and there were four injuries and therefore the learned trial court did not rely at all upon the injury reports and the appellant was acquitted for the offence punishable under Section 307 of IPC and he was convicted for the offence punishable under Section 324 of IPC.

18. Having taken into consideration the aforesaid testimonies of the witnesses and also the other evidences available on record including the documentary evidences, it is well established that there had been a landed property dispute between both the parties, which is an admitted fact. The appellant along with the co-accused persons had visited the place of occurrence, which is agricultural disputed land, upon which the informant and others were ploughing their field and then an altercation took place, under which, PW - 4 sustained the injuries and this Court did not find any infirmity in the appreciation of the evidences by the learned trial court as discussed in the foregoing paragraphs.

19. In the result, this Court upholds the conviction of the appellant for the offence punishable under Section 324 of IPC.

20. Further it is found that instead of awarding any sentence, 9 Cr. Appeal (SJ) No.903 of 2005

the appellant was directed to be released on probation on entering into a bond of Rs.5,000/-(Rupees Five thousand) with two sureties of the like amount of each for a period of two years with the observation that the appellant would appear and receive the sentence, when called upon during such period and he was further directed to maintain peace and to be of good behaviour during the aforesaid period. Over efflux of time, it is found that the period of two years is over and there is nothing on record to show criminal antecedent of the appellant and therefore the order of bond has also become infructuous with the passage of time.

21. In this view of matter, this appeal is dismissed.

22. Let the Lower Court Record be sent back forthwith to the concerned court below along with the copy of judgement.

(Navneet Kumar, J.)

Jharkhand High Court, Ranchi, Dated the 10.08.2022/NAFR R.Kumar/-