Jharkhand High Court
Kishun Matha vs The State Of Bihar (Now Jharkhand) on 3 April, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 65 of 1995
1.Kishun Matha
2.Kesho Matha
Sons of Chutari Matha, Resident of Village-Motia, P.S.- Godda
(Muffasil) District-Godda. .......... Appellants
-VERSUS-
The State of Bihar (Now Jharkhand) ............... Respondent
.......
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellants : Mr. Manoj Kumar Sah, Advocate
For the Respondent : Mrs. Priya Shrestha, Spl.P.P.
Order No.21/ Dated 3rd April 2024
I.A. No. 8699 of 2022
This application has been filed for early hearing of this Criminal
Appeal. By virtue of order dated 22nd March 2024, this Criminal Appeal has
been listed for hearing today.
2. I.A. No. 8699 of 2022 stands disposed of.
Criminal Appeal (DB) No. 65 of 1995
3. Challenging the judgment dated 28th April 1995 in Sessions Case No.
14 of 1994 /19 of 1994 and the order of sentence dated 29 th April 1995
passed by 2nd Additional Sessions Judge, Godda, Chutari Matha, Kishun
Matha and Kesho Matha have filed this Criminal Appeal under section
374(2) of the Criminal Procedure Code.
4. During pendency of this Criminal Appeal, Chutari Matha passed away
and by virtue of the order dated 10th April 2019 this Criminal Appeal qua
Chutari Matha has abated.
5. After the investigation in Godda Town(M) P.S. Case No. 211 of 1993,
a charge sheet was laid after investigation for the offences under sections
452/34,324/34 and 307/34 of I.P.C., section 27 of the Arms Act and sections
3 & 5 of the Explosive Substance Act. However, the appellants were put on
trial for committing the offence under Section 307/34 and 324/34 of the
Indian Penal Code and under section 3 and 5 of the Explosive Substance
Act.
6. The case of the prosecution is that about 4.00 p.m. on 25th August
1993 the informant Ganesh Yadav went towards the field of Mangru
Choudhary for grazing the buffaloes. According to the informant, Chutari
Matha, Kesho Matha and Kishan Matha raised objection and issued threat to
him that his entire family would be finished. The informant came back home
and informed his elder brother Mahesh Yadav and father Bhutaki Yadav
about the threat so issued by the accused persons. On the basis of his
statement given before A.S.I. M.K. Mishra of Godda (T) Police Station
around 2.00 p.m. on 26th August 1993 that around 11.00 p.m. on the same
day the accused came to his house and hurled 4-5 bombs which caused
injury over his right temple, neck and shoulder, Godda Town(M) P.S. Case
No. 211 of 1993 dated 26th August 1993 was registered. The informant
further stated that Ganesh Marik, Wakil Yadav, Anil Yadav and Bindeshwari
Yadav rushed to his house on his raising alarm and thereafter the accused
persons fled away.
7. In the trial, the prosecution examined 9 witnesses including Dr. Dilip
Kumar Choudhary who tendered evidence as P.W.5. According to the
prosecution, P.W.2 Ganesh Marik, P.W.3 Wakil Yadav and P.W.4 Anil Kumar
Yadav are the prime witnesses for the prosecution.
8. P.W.3 Wakil Yadav and P.W.4 Anil Kumar Yadav supported the
informant Ganesh Yadav to the extent that on hearing noise they rushed to
his house and they saw Kesho Matha hurling bomb towards Ganesh Yadav.
P.W.5 Dr. Dilip Kumar Choudhary deposed in the Court that he examined
the informant Ganesh Yadav on 26th August 1993 at 3.15 P.M and found
charring over the neck, right shoulder, supra spinuc area and pinua of right
ear. He also observed partially burnt hairs over the right lateral side of the
head. According to P.W.5, the injuries caused to Ganesh Yadav were
suggestive of injury caused by bomb explosion.
9. However, P.W.5 has rendered an opinion that the injury caused to
Ganesh Yadav was simple in nature.
10. The learned Trial judge having examined the materials on record
found sufficient evidence to convict Chutari Matha, Kishun Matha and
Kesho Matha under sections 307/34 and 324/34 of the IPC. However, they
were acquitted of the charge under section 3 and 5 of the Explosive
Substance Act.
11. No doubt P.W.5 found charring and burn injuries caused to the
informant Ganesh Yadav but in absence of a State Appeal this Court is not
inclined to go into the merits of the prosecution story as regards commission
of the offence under section 3 and 5 of the Explosive Substance Act.
12. The offence under section 307 IPC provides that if the act done with
such intention or knowledge and under such circumstance could have caused
death and the accused thus guilty of murder but the victim survived then the
accused shall be prosecuted under section 307 IPC for attempt to murder.
The evidence of P.W.5 may be suggestive of attack on Ganesh Yadav by
bomb but, in absence of a clear finding recorded by the Sessions Court, we
cannot infer that the appellants had such intention or knowledge that Ganesh
Yadav would have died on account of the assault by them.
13. Now what remains is the evidence produced by the prosecution
through P.W.5 that simple injuries were found on the person of Ganesh
Yadav and while so, conviction under section 307/34 of the IPC becomes
vulnerable and is therefore set aside.
14. However, the conviction of the appellants under section 324/34 of the
Indian Penal Code is affirmed. Section 324 of the Indian Penal Code
provides maximum punishment which may extend to 3 years or with fine or
both. Mrs. Priya Shrestha, the learned Special P.P. has tendered a copy of
letter dated 6th February 2023 from the Jail Superintendent, Divisional Jail,
Godda. According to the report transmitted by the Jail Superintendent,
Kishan Matha has undergone custody of 3 years and 8 months and Kesho
Matha has undergone custody of 4 years 9 months and 8 days.
15. This Criminal Appeal is allowed to the extent that the conviction of
the appellants under section 307/34 of the Indian Penal Code is set aside.
16. The appellants Kishun Matha and Kesho Matha are on bail by virtue
of order dated 27th September 2022 passed by this Court. They are
discharged of their liabilities of bail bond furnished by them.
(Shree Chandrashekhar, A.C.J.)
(Navneet Kumar, J.)
A.Mohanty
