Jharkhand High Court
Kalia Mahto vs The State Of Jharkhand on 23 March, 2022
1
Cr. Appeal (SJ) No. 1389 of 2003
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 1389 of 2003
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(Against the judgment of conviction dated 30.08.2003 and order of
sentence dated 01.09.2003 passed by the learned Additional Judicial
Commissioner, Fast Track Court VIIIth, Ranchi in S.T. No. 723 of
1996/ Trial No. 4 of 2003 in connection with Kanke P.S. Case No.61
of 1996,G.R. Case No.2262 of 1996 Ranchi, Jharkhand)
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1. Kalia Mahto
2. Raghu Mahto
3. Manoj Mahto ... 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 Appellants : Mr. B.K. Dubey, Advocate
For Respondent : Mr. V.S. Sahay, A.P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR
C.A.V. on 1st December, 2021 Order Pronounced on 23/03/2022
1. This appeal has been preferred against the judgment of
conviction dated 30.08.2003 and order of sentence dated 01.09.2003
passed by the learned Additional Judicial Commissioner, Fast Track
Court VIIIth, Ranchi in S.T. No. 723 of 1996/ Trial No. 4 of 2003 in
connection with Kanke P.S. Case No.61 of 1996,G.R. Case No. 2262 of
1996. The conviction and sentence of the respective appellants are
hereunder:
Conviction sentence Amount of fine
Accused/Appellants under sections
1.Kalia Mahto (Appellant Each of them R.I. Each of them to pay Rs. Three
No. 1) 307/34 of IPC for 7 years thousands only and in default of
2.Raghu Mahto (appellant payment of fine R.I. for 6 months)
No.2)
3.Lalku Mahto Each of them R.I. ----------------------------
(deceased appellant)
323 of IPC for 3 months
Each of them R.I. ----------------------------
341 of IPC for 1 months
4.Manoj Mahto (appellant Rs. Three thousands only (in default
no.3) 307 of IPC R.I. for 7 years of payment of fine R.I. for 6 months)
Rs. Two thousands only(in default of
326 of IPC R.I. for 5 payment of fine R.I. for 3 months)
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341 of IPC R.I. for 1 month
Cr. Appeal (SJ) No. 1389 of 2003
All the sentences were directed to run concurrently and it was
ordered that out of the fine so awarded and realised from the
appellants a sum of Rs. 5000/-shall be paid to the P.W. 2 Parsuram
Mahto and P.W. 1 Surendra Mahto by way of compensation.
2. From the record, it appears that during the pending of this
appeal in hand out of four appellants namely appellant no. 1 Kalia
Mahto, appellant no. 2 Raghu Mahto, appellant no. 3 Lalku Mahto
appellant no. 4 Manoj Mahto, one of them i.e. appellant no. 3 Lalku
Mahto had died and vide order 21.10.2021 the appeal was abated
with respect to the deceased appellant no. 3 Lalku Mahto and
accordingly, his name has been deleted from the cause title of memo
of appeal and remaining appellants have been renumbered as
appellant no.1 Kalia Mahto, appellant no. 2 Raghu Mahto and
appellant no. 3 Manoj Mahto.
Background facts of the case
3. The background facts of the case is as under:
The fardbeyan of Parsuram Mahto P.W. 2 was recorded by ASI
Rajendra Prasad of Kanke Police Station at Rajkiya Hospital on
21.08.1996 at 9.30 hours. P.W.2 Parsuram Mahto had stated that on
21.08.1996 at about 7 a.m. in the morning his brother Surendra Mahto
(P.W.1) was sowing paddy seeds in his field. The informant also
reached there and he was weeding out grass from the field. In the
meantime, the accused persons came there abusing and having Lathi
and Tangi with them and accused-appellant no.3 Manoj Mahto gave a
tangi blow on the informant with intend to kill him. As a result of
assault, the informant fell down and then the remaining accused
persons assaulted him and his brother Surendra Mahto with Lathi.
Informant's mother (P.W.4 Sohri Devi) who was at a short distance
from the field came there on seeing the assault and the accused
persons also abused her. Thereafter, the accused persons fled away.
After some time, informant's father and other villagers arrived there
and took them to hospital for treatment. It is also alleged that the
ancestors of the informant were in illegal possession of lands of
Oraon Community and in the last year, they had given up their
Cr. Appeal (SJ) No. 1389 of 2003
possession, but, the accused persons had not given up their illegal
possession and they were also insisting that the informant should
also not give up their illegal possession. But, when the father of
informant declined to their advice, they became annoyed and for that
very reason they have committed this incident.
4. On the basis of the aforesaid fardbeyan of the informant which
was recorded at Government Hospital Kanke, a formal FIR was
drawn and Kanke P.S. Case No. 61 of 1996 u/s 326, 323, 324, 341
307/34 of IPC was registered against the accused persons. After due
investigation, charge sheet was filed against the accused persons and
after cognizance being taken, the case was committed to the court of
session as the offence are exclusively triable by court of Sessions.
After commitment, the charge was framed on 10.09.1997 under
sections 326, 307/34, 341, 324 of IPC and after conclusion of the trial
learned trial court had passed the impugned judgment of conviction
and order of sentence which is under challenge in this Appeal.
5. Heard Mr. B.K. Dubey, learned counsel for the appellants and
Mr. V.S. Sahay, learned A.P.P. for the State.
Arguments on behalf of the appellants
6. It has been pointed out by the learned counsel for the
appellants that the appellants have been falsely implicated in this
case and the case of prosecution is vitiated due to admitted enmity
between the parties arising out of landed property. It has been
contended that the informant and his family members were trying to
grab the land of the appellants and they were not in physical
possession of the land in question. It has further been pointed out
that all the witnesses examined on behalf of the prosecution are
related to the informant as they are brothers, mother and father of the
informant. The learned trial court has also failed to appreciate the
nature of the injuries which are simple and there was no intention for
committing the offence of attempt to murder or causing grievous
injury and they were convicted for the offence punishable u/s 307 &
326 IPC which are not tenable in the eyes of law in absence of any
cogent and reliable evidence. It has further been pointed out that
Cr. Appeal (SJ) No. 1389 of 2003
since no independent witnesses have been examined nor any member
of the accused appellants had been examined in this case, and hence,
the dispute arising out of the possession of the land is not
substantiated. It has further stated that the evidence of the Doctor
does not corroborate the FIR as the Doctor has found two injuries and
in the FIR only one injury has been mentioned which shows that the
whole story was developed and innocent persons have been
implicated. Further, it has been pointed out that a great prejudice has
caused to the defence because of non-examination of the I.O. in this
case and on the basis of the vague allegations no person can be
convicted and no offence either u/s 307/34 IPC or 326 of IPC is made
out and utmost it is a case u/s 323 of IPC and, therefore, the
impugned judgment of conviction is bad in law and as well as in fact
and fit to be set aside.
Arguments on behalf of the State
7. On the other hand, learned trial court has opposed the
contentions raised on behalf of the appellants and submitted that the
learned trial court has rightly appreciated the nature of injuries as
inflicted upon them by the accused appellants and found all the three
accused appellants Kalia Mahto, Raghu Mahto, and Manoj Mahto
guilty for the offence as held by the learned trial court. It has further
been pointed out that there is no legal evidence to interfere in the
impugned judgment of conviction and order of sentence and the
learned trial court has rightly appreciated the injuries report and
depositions of the Doctor in order to come to the conclusion against
the accused appellant and hence, this appeal is liable to be dismissed
being devoid of merit.
Appraisals and Findings
8. Having heard the learned counsel for the parties perused the
materials available on record including the lower court record.
9. It is an admitted case of the prosecution that the dispute arose
between both the parties including informant side and the accused
appellants because of the landed property where it has been stated by
the prosecution that the ancestor of the informant P.W. 2 Parsuram
Cr. Appeal (SJ) No. 1389 of 2003
Mahto was in illegal possession of the lands of Oraon community and
in the last year they had relinquished their possession, but, the
accused appellants did not give up their illegal possession rather they
were insisting upon the informant that they should also not give up
their illegal possession over the land, but, the father of the informant
declined their advice by which the accused appellant became
annoyed and for that very reason the accused appellants had
committed this incident. It has been alleged in the FIR that the
informant P.W. 2 Parsuram Mahto along with his brother P.W. 1
Surendra Mahto were working in the field when the accused
appellants came their and appellant no.3 Manoj Mahto assaulted
them by tangi and thereafter all of them including appellant no.1
Kalia Mahto, appellant no. 2 Raghu Mahto and appellant no. 3 Manoj
Mahto by lathi by which both P.W. 2 Parsuram Mahto and P.W. 1
Surendra Mahto sustained injuries. In order to substantiate the
charges levelled against the accused appellants, the prosecution has
been able to examine altogether six witnesses including the doctor.
The prosecution has been able to prove the injuries reports of the
injured P.W. 2 Parsuram Mahto and P.W. 1 Surendra Mahto which
have been marked as Ext.1 and Ext.1/1.
10. P.W. 1 Surendra Mahto was one of the injured persons of the
alleged incident and he deposed that all the accused appellants
armed with tangi and lathi came to his field and started abusing them
and thereafter the accused appellant Manoj Mahto gave tangi blow on
the neck of his brother P.W. 2 Parsuram Mahto and he further
deposed that the appellant no. 2 Raghu Mahto had assaulted
Parsuram mahto with the back side of the tangi and the deceased
accused appellant Lalku Mahto and appellant no. 1 Kalia Mahto
assaulted Parsuram Mahto with lathi. He also deposed that the
appellant no. 2 Raghu Mahto had assaulted him with the back side of
tangi and appellant no. 1 Kalia and Lalku(since deceased) assaulted
him with lathi. He also deposed that when his mother intervened to
rescue them the accused appellants had also abused her.
The learned trial court has rightly appreciated the testimonies
of this witness to the extent that the accused appellant had assaulted
Cr. Appeal (SJ) No. 1389 of 2003
this witness P.W. 1 and his brother P.W. 2 Parsuram Mahto also. In
the cross examination of this witness, nothing has been elicited in
order to disbelieve the version of this witness to the extent that he
was assaulted by the accused appellants.
11. P.W. 2 Parsuram Mahto has categorically and specifically stated
in para 2 of his examination-in-chief that the accused appellants
armed with lathi and tangi came their and started abusing them and
the accused appellant no. 3 Manoj Mahto had assaulted him by tangi
blow on his neck by which he sustained cut injury on his neck and
also the accused appellants had assaulted him with lathi and having
been injured he was taken to the Kanke Hospital where he was
treated and his fardbeyan was recorded by the police. This witness
did not support the case of the prosecution that his brother was also
assaulted by the accused appellants. But, his deposition has
substantially corroborated the allegation of the FIR that the accused
appellants had come there and assaulted him where his brother P.W.
1 Surendra Mahto was also present and the Surendra Mahto in his
deposition has categorically stated about the injuries inflicted upon
him by the accused appellants.
Further, the major discrepancies found in the prosecution case
with respect to the grievous injuries alleged to have been inflicted
upon the P.W. 2 as it is found from the categorical deposition of the
injured P.W. 2 in his cross examination where he stated that he had
never been admitted in the hospital and he did not stay in the
hospital even for a single day and these facts have drastically
weakened and damaged the case of the prosecution in support of the
grievous injury in order to substantiate and establish the offences
punishable u/s 326, 341 of IPC against any one of the appellants.
From the perusal of the injury report of the Parsuram Mahto P.W. 2 it
is also found that the neither the injuries affect any vital organ nor
did it impaired the functioning of the injured person in any manner
which is clear from the versions of the testimonies of P.W. 2 himself.
In this view of matter, this Court finds that the learned trial
court has committed gross error in appreciating the circumstances
under which the knowledge or intention of the appellants could be
Cr. Appeal (SJ) No. 1389 of 2003
inferred to commit the offence of attempt to murder or to cause
grievous injuries to any one of the victims either P.W.1 or P.W.2.
12. Further, it is found that P.W.3 Kari Nath is a hearsay witness
and he reached to the place of occurrence after hearing hulla and
found the accused appellants were running away from the place of
occurrence and also found that P.W. 1 and P.W. 2 were in injured
condition at the place of occurrence and thus, he has supported the
case of the prosecution to that effect that the injuries have been
caused to the victim P.W. 1 and P.W. 2 by the assault of the accused
appellants.
13. P.W. 4 Sohari Devi is the mother of the informant P.W. 2 and
P.W.1 and she deposed that the accused appellants had assaulted her
sons with tangi and lathi, she took the name of the accused persons
and she stated that her son fell down in the field. She further stated
that she went to her house to bring a cot with the help of the co-
villagers and took her injured son to the hospital and thus this
witness has supported the case of the prosecution to the extent that
the accused appellants had assaulted the injured P.W. 1 & P.W. 2
14. P.W. 5 Bhupnath Mahto who is said to be the father of the
informant and he is a hearsay witness and deposed that his wife P.W.
4 came weeping to house and told him that the accused persons has
assaulted his sons.
15. From the testimonies of the witnesses examined on behalf of
the prosecution including P.W. 1 Surendra Mahto, P.W. 2 Parsuram
Mahto, P.W. 3 Kari Nath and P.W. 4 Sohri Devi and P.W. 5 Bhupnath
Mahto it appears that they have consistently and uniformly deposed
that the accused appellants have assaulted the informant P.W. 2 and
his brother P.W. 1 by which they had sustained the injures.
16. Now the question remains to take into consideration as to
whether the appellants had intention to kill P.W. 2 and P.W. 1 or not
in order to substantiate the guilt for the offences punishable under
sections 307, 326, 341 of IPC against the appellant no. 3 Manoj Mahto
and the offences punishable under sections 307/34, 341 and 323 of
IPC against the appellants Kalia Mahto and Raghu Mahto.
Cr. Appeal (SJ) No. 1389 of 2003
17. It is well settled proposition of law that there can be no offence
under section 307 of IPC unless the prosecution proves the
ingredients of section 300 of IPC and without this there can be no
conviction under section 307 of IPC. In order to sustain an offence
under section 307 of the IPC the presence of intention or knowledge
must be such as is necessary to constitute murder and in absence of
such circumstances that, if he by that act caused death, there can be
no offence under section 307 of the IPC. In the present case, the acts
of the appellants are seemingly not sufficient to substantiate their
intention or knowledge to commit murder as evident from the
relevant facts including the manner and mode of causing injuries
irrespective of the result. The victims as examined on behalf of the
prosecution as P.W.1 and P.W.2 did not state about the repeated
blows of lathi or Tangi, rather they have stated that the accused
appellants have used the back /reverse side of the Tangi to inflict
injuries suggesting the absence of intention or knowledge to cause
death under the circumstances as indicated in section 307 of IPC.
Further, it is found that the nature of injuries at the place inflicted are
not fatal to cause death although the accused -appellants had ample
opportunities to inflict injuries, but, intention and knowledge could
not be inferred in view of the categorical testimonies of P.W.1 and
P.W.2 who did not support the intention and knowledge of the
accused appellants in all probabilities to cause death as emanating
from the testimonies of the Prosecution Witnesses with respect to a)
the place where the injuries were inflicted, b) the manner and mode
of inflicting injuries, c) the nature of weapon used (reverse side of
Tangi) and d) the opportunities of inflicting injuries upon the victims
P.W.1, P.W.2 and P.W.4. Even the witness P.W. 2 Parsuram Mahto,
who as per the doctor's opinion sustained grievous injuries, stated
that he was never admitted in the hospital and as such after first aid
he was discharged. Accordingly this Court proceeds to examine the
depositions of the doctor P.W. 6 who had examined both the injured
persons namely P.W.1 Surender Mahto and P.W.2 Parsuram Mahto.
Cr. Appeal (SJ) No. 1389 of 2003
18. The Doctor Uma Sinha, who has been examined as P.W. 6 had
medically examined P.W. 1 Surendra Mahto and found the following
injuries:
(i) One abrasion 1"x1" on right elbow with swelling all
around.
(ii) Multiple bruise on back left side 1" in breadth and length
variable from 4" to 10".
(iii) One lacerated wound on back of head 2" & 1/2".
She deposed that the nature of all the injuries is simple in
nature and one of the injuries i.e. injury no. (i) is caused due to fall
and the injury nos. (ii) and (iii) were caused by hard and blunt
substance.
From the deposition of this witness, it is inferred that there had
not been any intention or knowledge of any of the accused appellant
to commit the offence of attempt to murder and, therefore, the guilt
of the accused appellant for the offence punishable either u/s 307 or
u/s 326 of IPC is not substantiated from the nature of the injuries.
Further, none of the injured witnesses neither P.W. 1 and nor P.W. 2
had deposed that they had been ruthlessly assaulted by the appellant
one after another in repeated manner so as to attract the guilt
punishable u/s 307/34 of IPC. She has proved the injury report of
P.W. 1 Surendra Mahto which has been marked as Ext. 1.
This witness had further examined the P.W. 2 Parsuram Mahto
the informant and found the following injuries:-
(i) One incised wound on left side of neck 4" x 1" x 2" with
tailing on both end. Neurological deficit was found in
upper limb.
(ii) One incised wound 3" x 1/2" x 1/2" on right side of head.
(iii) Multiple bruise on back 1" breadth and length variable
from 4" to 10 ".
She deposed that the injuries nos. (i) & (ii) were caused by
sharp cutting weapon and the injury no. (iii) was by hard and blunt
substance and nature of injuries were grievous in nature. She proved
the injury report of the informant P.W. 2 which has been marked as
Ext. 1/1.
From the perusal of the injuries report and the deposition of the
Doctor, it is found that two persons including P.W. 1 and P.W. 2 were
Cr. Appeal (SJ) No. 1389 of 2003
injured and they had sustained the injuries. P.W. 2 had sustained the
grievous injury, but, the manner and mode of causing the injury does
not attract the intention and knowledge of the accused appellant to
kill him to corroborate the charge of Attempt to murder, because
neither of the witnesses examined on behalf of the prosecution has
stated about the repetitive and persistent assault upon the injured
persons. It has been clearly stated by the informant P.W.2 that only
one blow was given to the informant by tangi and the Doctor P.W. 6
did not explain under what circumstances the informant had
sustained the two incised injuries. It is evident from the testimonies
of the informant P.W. 2, who is said to have sustained the grievous
injury, has categorically and pointedly stated that he had given only
one blow of tangi by the accused appellant Manoj Mahto whereas
P.W. 1 Surendra Mahto never stated that the accused appellant
Raghu Mahto had assaulted the informant with the blunt portion of
tangi. Further, as per the prosecution case with respect to the grievous
injuries alleged to have been inflicted upon the P.W. 2, it is found
from the categorical depositions of the injured P.W. 2 in his cross
examination wherein he stated that he had never been admitted in
the hospital even for a single day and thus, the opinion of the
grievous injury inflicted upon the informant P.W.2 gets diluted.
Therefore, the intention and knowledge of causing the grievous
injuries within the meaning of either of section 326 or of section 307
of IPC are not corroborated against any one of the accused appellants.
19. In the backdrop of the above, the evaluation of the evidences it
is well founded that the accused appellants had inflicted the injuries
upon the victim P.W. 1 and P.W. 2, but, none of the injuries so
inflicted upon them including the manner, mode, nature,
opportunities, part of the body where injuries are inflicted are
corroborating and substantiating the offences either punishable u/s
307 or 326 of IPC and they are found guilty for the offence punishable
u/s 324 & 341 read with section 34 of IPC.
20. The contentions of the learned defence counsel that non-
examination of the I.O. has caused prejudice to the case of
prosecution, is not tenable in the eyes of law in view of the fact that
Cr. Appeal (SJ) No. 1389 of 2003
neither any material contradiction has been elicited in the testimonies
of the prosecution witnesses nor any suggestion about the place of
occurrence that it did not take place where it is alleged to have
happened, has been made by defence and therefore, this Court finds
that the learned trial court has rightly appreciated the fact that the
non-examination of the I.O. in this case has not caused prejudice
inasmuch as the allegations set out in the FIR are consistently and
uniformly supported by the deposition of the witnesses examined on
behalf of the prosecution particularly P.W. 1 , P.W. 2 and P.W. 4 who
are said to be eye witnesses and the victims of the occurrence.
21. Further, from the perusal of the testimonies of the witnesses, it
is also found particularly in the testimonies of the P.W. 1 and P.W. 2
that their attention has not been drawn to the material contradiction
with respect to their earlier statements made before the police and,
therefore, the non-examination of the I.O. did not cause prejudice to
the case of the prosecution to the extent that the guilt of the accused
persons are proved for the offence punishable u/s 324, 341 r/w
section 34 of IPC.
22. In view of aforesaid findings, this Court holds guilty of the
accused appellants for the offence punishable u/s 324/341 r/w 34 of
IPC and hence, this Court alters the conviction of the accused
appellants from the offences punishable u/s 307/34, 326, 341 and 323
to the offences punishable u/s 324/341 r/w 34 of IPC and
accordingly the impugned judgement of conviction and order of
sentence passed against these appellants are set aside and the
appellants are convicted for the offences punishable u/s 324/341 r/w
34 of IPC.
So far as the sentence is concerned it is found that the accused
appellants had been suffering the agony and hardships of the
criminal prosecution for a long period of time in view of the fact that
the incident took place as far back as on 21.08.1996 more than 25
years ago. It appears that at present the appellant no.1 is aged about
60 years old, appellant no. 2 Raghu Mahto is aged about 56 years old
and the appellant no. 3 Manoj Mahto is about 45 years old and there
is nothing on the record to show about their criminal history .
Cr. Appeal (SJ) No. 1389 of 2003
23. Having taken into consideration the aforesaid facts, it is found
that it is just and fair to take a lenient view in awarding the sentence
and no useful purpose would be served to send the appellants again
in jail and, therefore, the accused appellants are sentenced to the
imprisonment for a term already undergone.
24. Further, the accused appellants are sentenced to fine by way of
compensation to be paid to each of the injured persons namely P.W. 1
Surendra Mahto and P.W. 2 Parsuram Mahto to a sum of Rs. 5000/-
(Rupees Five Thousand Only) each by the accused appellant
collectively and jointly in a composite manner under both the heads
and in case of default of payment of fine so awarded each of the
appellants shall serve the sentence of one year R.I.
25. Since, the accused appellants are on bail they are given three
months' time from the date of this judgment to deposit the payment
of the fine Rs. 10,000/- (Rupees Ten Thousand Only) before the
learned court in the Government exchequer through the Nazarat civil
court, Ranchi in order to disburse to each of the victims P.W. 1
Surendra Mahto and P.W. 2 Parsuram Mahto to a sum of Rs.5000/-
(Rupees five thousand only).
26. The learned court below is directed to ensure that the amount
of fine be deposited within the stipulated period of time and after the
deposit of the fine amount of Rs.10, 000/- (Rupees ten thousand only)
so awarded, out of the said amount of Rs.10, 000/- (Rupees ten
thousand only), a sum of Rs. 5000/- (five thousand only) shall be
disbursed to each of the injured persons namely P.W. 1 Surendra
Mahto and P.W.2 Parsuram Mahto. In case, if the said injured
persons are not traceable or not found at the given address the same
shall be disbursed to the close or near relatives or kith and kin of the
injured person as the concerned learned trial court may deem fit and
proper.
27. In case the amount of fine is not deposited by the accused
appellants within the stipulated period of time, the learned court
below shall take all necessary steps to ensure that each of the
appellants serve the sentence of the imprisonment of one year R.I. in
default of payment of fine. On payment of fine, the appellants shall
Cr. Appeal (SJ) No. 1389 of 2003
be released forthwith and they shall be discharged from the liabilities
of bail bonds accordingly.
28. In the result, the appeal is partly allowed as above and the
judgment of copy along with the LCR be sent to the learned court
below for taking necessary actions for its compliance.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 23/03/2022/NAFR
MM/-
