Arjun Mahato vs The State Of Jharkhand
2022 Latest Caselaw 1269 Jhar

                                1          Cr. Appeal (SJ) 1072 of 2003

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr. Appeal (SJ) No.1072 of 2003

(Against the Judgment of Conviction and order of sentence dated
30.07.2003, passed by learned Additional Sessions Judge, FTC-III, Bokaro,
in connection with S.T. No.25 of 1995, arising out of Chas P.S. Case No.70
of 1990, corresponding to G.R. No.978-B of 1990.)

    1.   Arjun Mahato
    2.   Bhuwan Mahato
    3.   Pawan Mahato
    4.   Pandoo Mahato                      ...      Appellants
                          Versus
    The State of Jharkhand                 ...     Respondent
                               -----

For the Appellants : Mr. R.C.P, Sah, and Advocate For the State : Mrs. Ruby Pandey, A.P.P.

PRESENT HON'BLE MR. JUSTICE NAVNEET KUMAR

---

C.A.V. on 18/11/2021 Pronounced on. 30/03/2022

This appeal is directed against the Judgment of Conviction and order of sentence dated 30.07.2003, passed by learned Additional Sessions Judge, FTC-III, Bokaro, in connection with S.T. No.25 of 1995, arising out of Chas P.S. Case No.70 of 1990, corresponding to G.R. No.978B of 1990, whereby and where under the appellants were convicted under Sections 307/34 of IPC and were sentenced to undergo R.I. for 7 years.

2. The prosecution case has been initiated by one namely Kanchan Mahato (informant P.W.5) that on 23/10/1990 at about 9.00 am, while he along with his son and wife were engaged in ploughing their field, in the meantime, the accused duly armed with Tangi & Lathi came there and claimed the land in question. It is alleged that accused Arjun Mahato assaulted by means of Tangi to the informant's wife, as a result, his wife sustained injuries to her little finger of left hand and head, when the informant tried to stop, another accused Bhuwan Mahato, assaulted him over his head and knee by means of Lathi due to that his knee had been fractured. Further, case of the prosecution is that accused Pandoo Mahato, Pawan Mahato, assaulted Maninder Mahato, the son of the 2 Cr. Appeal (SJ) 1072 of 2003

informant and on halla, nearby people reached and rescued them.

3. On the basis of said beyan, F.I.R. was registered under section 324,325,354/34 of I.P.C. and investigation of the case commenced, after investigation police submitted charge sheet. After cognizance, case is committed to court of sessions. The learned court below, after commitment of the case, framed charge against the four accused persons for the offence punishable under Sections 307/34 of IPC on 07.06.1999 including all the accused-appellants and after conducting the trial, the impugned judgment of conviction and order of sentence was passed, which is under challenge.

4. Heard learned defence counsel Mr. R.C.P. Sah appearing on behalf of the appellants and learned A.P.P. Ruby Pandey appearing on behalf of the State.

Submission on behalf of the appellants

5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel appearing on behalf of the appellants submitted that not a single independent witness has been examined in this case and the witnesses, who have been examined on behalf of the prosecution, all are interested and related to each other. Further, it is contended that the doctor and the I.O. in this case were not examined, though the injury report was proved by a formal witness and further there are various contradictions found with regard to the weapon used, injury caused to the persons, distance of place of occurrence from the house of the witnesses etc. Further, it has been pointed out that there was only one blow by each of the appellants, hence the conviction under Sections 307/34 of IPC is not tenable and the finding of the learned court below is contrary to the materials available on record and therefore the impugned judgment of conviction is bad in law and fit to be set- aside.

Submission on behalf of the State

6. On the other hand, learned A.P.P. appearing on behalf of the State vehemently opposed the contentions raised on behalf of the appellants and submitted that the learned court below has rightly 3 Cr. Appeal (SJ) 1072 of 2003

appreciated the deposition of the witnesses examined on behalf of the prosecution and found the appellants guilty for the offences punishable under Sections 307/34 of IPC and no irregularity or any lacuna has been found in this case and therefore this appeal is fit to be dismissed for want of merit.

7. Having heard learned counsel for parties, perused the entire materials available on record including the lower court record.

Appraisal & Findings

8. PW - 5 Kanchan Mahato is the informant of this case and he has proved his signature on the statement submitted to the police, which has been marked as Ext-1. This witness has admitted that the appellant No. 1 Arjun Mahato was his cousin. He has also admitted in para 6 of his deposition that the accused appellants had quarreled with them because of the landed property dispute and in order to show his ownership over the landed property, rent receipt has been filed, which has been marked as Ext. -X. This witness has also deposed that there was oral partition amongst them before the registration of the land. This witness stated that the accused persons had assaulted by lathi and tangi, by which three persons were injured. This witness had also stated that the appellant No.2 Bhuwan Mahato and appellant No.3 Pawan Mahato were his nephews. This witness stated that Pawan was holding tangi in his hand while the others were holding lathi. Bhuwan Mahato had assaulted this witness by lathi, by which his elbow was fractured and Arjun Mahato assaulted on his head and shoulder by lathi. He also stated that Arjun Mahato had assaulted on his right shoulder and Pandoo Mahto had assaulted his wife on her head by tangi and when his wife tried to protect herself by hand, then her little finger of left hand was chopped off and Arjun Mahato had assaulted by lathi by which his finger of left hand fractured. He further stated that Bhuwan Mahto had assaulted his son Maninder Mahato by lathi and Arjun Mahato had also assaulted him (Maninder Mahto) by lathi by which, Maninder Mahto sustained injury on his finger, but since the injury reports have not been proved by the doctor, all the injuries 4 Cr. Appeal (SJ) 1072 of 2003

could not be substantiated. The attention of this witness was drawn at his earlier statement vide para 14, but since the I.O. in this case has not been examined and therefore the truthfulness and veracity of this witness could not be tested with respect to his earlier statements. In para 4, this witness stated that at the time of assault, when hulla was raised by him, then Rakhal Mahato and Bharat Mahato and Yudhisthir Mahato had come there and when they reached there, the accused persons fled away from the place of occurrence. In support of the version of this witness, other witnesses who have been examined on behalf of the prosecution.

9. PW - 1 Maninder Mahato, who is the son of PW- 5 informant, had also supported the case of the prosecution that Arjun Mahato had assaulted the father of this witness P.W. 1 (Maninder Mahto) by lathi, by which his elbow was broken and his mother was also assaulted on her head by Pandoo Mahato. He had also stated that Pandoo Mahato had assaulted on the head of his mother Dhiru Mahatain. Bhuwan Mahato had assaulted on his head of his father by lathi and Pawan Mahato assaulted by lathi on the head of this witness. This witness stated in para - 4 that all the accused persons are gotias and both were related to each other. The attention of this witness was drawn in para 6 about his earlier statement before the police, but since the I.O. has not been examined and therefore the veracity and truthfulness of this witness remained doubtful. In para 19, this witness has categorically stated that there is case and counter case between the parties and the accused appellants had also instituted the cases against them. In para 18, he said that he had stated before the police that on raising hulla, Yudhisthir Mahato, Bharat Mahato and Rakhal Mahto had reached there. Since the I.O. and doctor have not been examined and therefore the version of this witness with respect to the injuries inflicted upon the victim could not be proved.

10. PW - 2 Dhiru Mahatain is the wife of the informant and mother of PW - 1. She had also stated about the assault by the accused appellants upon them. In para 4, this witness had also 5 Cr. Appeal (SJ) 1072 of 2003

stated that all the accused persons are their gotias and also admitted that there was counter case instituted by the appellants against the informant's people.

11. PW - 3 Yudhisthir Mahato had also stated in examination in chief that the accused persons including Arjun Mahato, Bhuwan Mahato, Pandoo Mahato and Pawan Mahato had assaulted Kanchan Mahto (PW - 5), Maninder Mahto (PW-1) and Dhiru Mahatain (PW - 2). This witness is the nephew of the informant. The attention of this witness has been drawn vide para 7 of his deposition about his earlier statement before the police, but non- examination of the I.O has jeopardized the case of the prosecution for want of testing the truthfulness and genuineness of the testimonies of this witness.

12. PW - 4 Bharat Mahato had also stated in examination in chief that the accused persons namely Pawan Mahato, Bhuwan, Arjun and Pandoo came with lathi and tangi and assaulted Kanchan Mahto (P.W.5), Maninder (P.W.1), Dhiru Mahatain (P.W.2). This witness has admitted in the cross-examination that both the parties are related to each other and there is case and counter case between the parties.

13. PW - 6 Guna Ram Mahato is the advocate's clerk, who had indentified the injury report of the doctor Nageshwar Prasad, which has been marked as Exhibits 2, 3 and 4. In cross-examination, this witness categorically stated that the report was not prepared before him and thus all the injuries report were not proved as per the prescribed procedure and therefore the veracity and truthfulness of the injury report remains unsubstantiated.

14. From the testimonies of the aforesaid witnesses, it is well founded that it is the admitted case for the prosecution that both the parties are gotias and the dispute arose for ploughing on the share of land which is evident from the FIR itself.

It is found that under the circumstances of the present case that neither the I.O. nor Doctor has been examined and the injury report is a vital piece of the evidence to constitute offence punishable u/s 6 Cr. Appeal (SJ) 1072 of 2003

307 of IPC and the same has been marked as Exhibits 2, 3 & 4 by the advocate's clerk who is neither the maker of injury report nor the injured people have been medically examined before him nor any senior or colleague-doctor has proved the injury reports nor the doctor medically examined the injured people have been examined in order to substantiate the offence of the appellants for the offence punishable under sections 307/34 of IPC, and therefore evidentiary values of the injuries reports are not gaining the confidence of the court. Hence the intention or knowledge of the appellants in order to constitute the offence punishable u/s 307 of IPC could not be established. The injury report is one of the important means to infer the intention or knowledge of the appellants for attempt to murder within the meaning of section 307 of IPC which is lacking in the present case and thus the non-examination of Doctor and I.O. caused prejudice to the defence of the appellants and it is fatal for the prosecution to corroborate the offence punishable under section 307 of the IPC.

It is also evident that Kanchan Mahto, Maninder Mahto (Son of the informant) and Dhiru Mahtain (wife of the Informant) are the victims who had been assaulted. Although the injury reports have been marked as Exhibits 2, 3 & 4, but the means of cause of injuries remains unproved in the eyes of law for want of examination by any expert doctor inasmuch as the injuries could not be proved by an advocate's clerk and therefore the case of the offence u/s 307 of IPC is not established in absence of proof of the injuries. The accused- appellants have been debarred from their valuable rights to cross- examine the expert medical witness in absence of examination of any doctor either who medically examined the injured people or any medical expert from whom the defence could have cross-examined meaningfully and effectively and therefore the important aspect of either contradictions or corroborations could not be appreciated in the eyes of law. In the result it is found that the guilt of accused- appellants are substantiated only for the offence punishable under section 323 with the aid of Section 34 of the IPC as the testimonies of 7 Cr. Appeal (SJ) 1072 of 2003

the injured witnesses including P.W.5, P.W.1 &P.W.2 have supported the case of the prosecution to the extent that the accused- appellants had assaulted them consistently and uniformly establishing the offence punishable under section 323/34 of IPC.

Further it is found that I.O. of this case has not been examined and therefore the manner, mode place, time, and date of occurrence could not be proved in the eyes of law. Nor the accused -appellant could get opportunity to bring out contradictions in the earlier statements of the witnesses whose attention were drawn during the cross-examination, during the course of trial before the learned court below about their earlier statements before the police. Therefore, it is submitted that utmost it might be a case u/s 323 of IPC and not u/s 307 of IPC.

Further from the evaluation of the testimonies of the witnesses that major contradictions are found in the statement of the P.W. 1 who is said to be the eye witness and the son of the informant on the point of assault in para 29 where it has been clearly stated that the father of the informant had sustained three lathi injuries one at the elbow, second on hand and third on the head which did not fall in line with the injuries report which has been simply brought on record through Advocate's clerk without getting it proved by a doctor or any medical expert. Further it has also been stated that this witness P.W. 1 sustained injures of two lathi blows one on head and another on the finger of the hand and her mother was assaulted by tangi and another blow by lathi and all these versions about the assaults and the injuries are not commensurate with their respective injury reports. P.W. 1 also stated in Para 19 that there was a case and counter case between the parties instituted by the appellant no. 1 Arjun Mahto and the defence counsel for the appellant has also submitted that in order to counter the offence committed by this informant people a false case has been instituted by them. Thus the injuries inflicted upon the victims remain unproved due to non- examination of the doctor about the nature and manner of injuries sustained by the injured persons.

8 Cr. Appeal (SJ) 1072 of 2003

15. In view of the aforesaid findings, the facts remain to take into consideration that due to landed properties, mar-pit between the parties took place and three persons were injured namely the informant PW - 5 Kanchan Mahato, PW -1 Maninder Mahato and PW - 2 Dhiru Mahatain. It is true that since the injury report has not been duly proved and the accused appellants did not get opportunity to cross-examine the doctor, who had examined the injured and prepared the injury report, therefore the intensity of the injuries alleged to have been inflicted upon the injured could not be substantiated. The proof and writing of the injury reports by PW - 6 Guna Ram Mahato, who is advocate's clerk, is not tenable in the eyes of law as he is not a competent person to answer and give out any explanation based on the technical knowledge connected with the medical jurisprudence and since it is case of major offence that is attempt to commit murder under Section 307 of IPC, such document should not be brought into evidence mechanically for the shake of empty formality. In such major trial, only those documents would be taken into consideration, which are meaningful and purposeful. Under the circumstances, in case of the injury report, the right person for substituting in place of the Doctor would be another doctor competent to reply the questions to be put on behalf of both the prosecution and the accused, or a witness having technical knowledge, only can be said to be the competent person to even say about the writings of the Doctor who had written out such report for admitting it into evidence. The advocate's clerk in the present case is never a competent person about the writings of the doctor of such documents and therefore the exhibits 2, 3 & 4 cannot be looked into and for want of evidence, the intention and knowledge for attempt to commit the murder could not be sustained in absence of the non- examination of the doctor and the I.O. Nevertheless in this case the prosecution witnesses including the injured witnesses P.W. 5, P.W. 1, P.W. 2 and supported by P.W. - 3 have consistently and uniformly stated about the assault by the appellants upon them and therefore it is well proved that they had sustained injuries and hence the 9 Cr. Appeal (SJ) 1072 of 2003

prosecution has been able to establish for the offence punishable under Section 323/34 of IPC against the accused appellants and not for the offence punishable under Section 307/34 of IPC.

16. Accordingly the guilt and conviction of the appellants alters from the offence punishable under Section 307/34 of IPC to under Section 323/34 of IPC and the impugned judgment of conviction and order of sentence passed by learned Additional Sessions Judge, FTC- III, Bokaro, in connection with S.T. No.25 of 1995, arising out of Chas P.S. Case No.70 of 1990, corresponding to G.R. No.978B of 1990,passed against the appellants Arjun Mahato, Bhuwan Mahato, Pawan Mahato and Pandoo Mahato is set-aside and this court accordingly holding the guilt of the appellants for the offence punishable under section 323/34 of the IPC convict them under section 323/34 of the IPC.

17. Under the circumstances of the case it is further found that all the appellants have already remained in jail and this is the incident of year 1990 about more than 30 years have elapsed and the appellants have put the rigors of serious criminal prosecution for such a long period of more than 30 years and Sessions trial has covered about 30 years and therefore the hardship and trauma faced by these appellants of criminal prosecution is unreasonable and unfair. It is found from the record that there is nothing to show about their criminal incident. Further the appellant Bhuwan Mahato is said to be 70 years old, the appellant Arjun Mahato is about 80 years old, the appellant Pawan Mahato is about 45 years old and the appellant Pandoo Mahato is about 50 years old over a period of time. Under these circumstances, for the ends of justice, it would be sufficient, if the appellants are sentenced of imprisonment for a term of the period already undergone by them. In the result all the four appellants namely Arjun Mahato, Bhuwan Mahato, Pawan Mahato and Pandoo Mahato after finding their guilt for the offence punishable under section 323/34 of the IPC, they are sentenced to the imprisonment for a term of the period already undergone by them. Since all the appellants on bail, they are discharged from the 10 Cr. Appeal (SJ) 1072 of 2003

liability of their bail bonds.

18. In this view of the matter, this appeal is partly allowed as above.

19. Let the Lower Court Record be sent back forthwith to the concerned court below.

(Navneet Kumar, J.)

Jharkhand High Court, Ranchi, Dated the 30.03.2022/NAFR R.Kumar/-