Jharkhand High Court
Deepak Mahato vs The State Of Jharkhand on 11 January, 2024
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (SJ) No. 398 of 2011
(Against the judgment of conviction dated 12th May 2011 and the order of sentence dated
13th May 2011 passed by the learned Additional Judicial Commissioner-I, Khunti in S.T.
No. 524 of 2004)
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1. Deepak Mahato
2. Kapil Mahato
Both sons of Fukun Mahato, resident of village- Bichaka Toli, PO & PS
Bundu, District Ranchi, Jharkhand .... ..... Appellants
Versus
The State of Jharkhand ... .... Respondent
PRESENT
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant : Mr. Kumar Saurav, Amicus Curiae
For the State : Mr. Tarun Kumar, APP
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JUDGMENT
CAV on 07th December 2023 Pronounced on 11 January 2024
Per, Subhash Chand, J.
The instant criminal appeal has been preferred on behalf of the
appellants, namely, Deepak Mahato and Kapil Mahato against the judgment
of conviction dated 12.05.2011 and order of sentence dated 13.05.2011
passed in Sessions Trial No.524/2004 whereby the learned Additional
Judicial Commissioner-I, Khunti held guilty to the appellant no.1 namely,
Deepak Mahato for the charge under section 323 of the Indian Penal Code
(hereinafter referred to as 'IPC') and sentenced with simple imprisonment of
3 months while the appellant no.2, namely, Kapil Mahato was held guilty for
the charge under section 326 of IPC and sentenced with RI for three years
and a fine of Rs.2000/- and half of the fine was ordered to be paid to the
injured for the medical expenses made by her and in case of default of
payment of fine, further to undergo RI for three months.
2 Cr. Appeal (SJ) No. 398 of 2011
2. The brief facts of the prosecution case leading to this criminal
appeal are that on 24.11.2003 at 14' hours of day time, the informant Charki
Devi had given written information before the police officer of the police
station concerned with these allegations that on 17.11.2003 at 7 O'clock of
morning she came to the Khalihan and found the same to be destroyed by
the cattle. The informant without giving any name of any one hurled abuse
of whom the cattle have destroyed the Khalihan. On this very issue, her
neighbour Kapil Mahato, Deepak Mahato and Lalita Devi armed with iron
rod and Dauli hurling abuse chased the informant who intruded in her
house. The accused persons also intruded in the house and dragged her out
of the house. Kapil Mahato with intent to commit murder of her assaulted
with Dauli which hit on her head and Deepak Mahato assaulted with iron
rod and Lalita Devi assaulted with broom. On being alarmed the persons of
the locality attracted there and the accused persons managed to flee away.
The informant was admitted to RIMS, Ranchi and after being recovered
from the injury she gave the written information with the police station
concerned. On this written information, the Case Crime No. 101/2003 was
registered with Bundu Police Station, District Ranchi.
3. The investigating officer after having concluded the
investigation filed charge-sheet for the offence under section 341, 323, 325,
307 r/w 34 of IPC against the accused Kapil Mahato, Deepak Mahato and
Lalita Devi.
4. The Magistrate concerned took cognizance on the charge-sheet
and committed the case for trial to the court of learned Judicial
Commissioner, Khunti and same was transferred to the court of Additional
Judicial Commissioner-I, Khunti.
3 Cr. Appeal (SJ) No. 398 of 2011
5. The trial court framed charged against the accused Kapil
Mahato, Deepak Mahato and Lalita Devi for the offence under section 341,
323, 325, 307 r/w 34 of IPC.
6. On behalf of prosecution in oral evidence examined PW1-
Sanatan Mahato, PW2- Sikander Mahato, PW3- Malti Devi, PW4- Bhusak
Mahato, PW5- Balram Mahato, PW6- Charki Devi, PW7- Shambhu
Mahato, PW8- Dr. Madhup Lal and PW9- Dr. Binod Kumar.
7. On behalf of prosecution in documentary evidence adduced
fardbeyan exhibit-1, X-ray report exhibit-2, inquiry report exhibit-3, injury
report exhibit-4.
8. The statement under section 313 of Cr.PC of the accused
Deepak Mahato, Kapil Mahato and Lalita Devi were recorded. All the
accused person denied the incriminating circumstances in evidence against
them and told themselves to be innocent.
9. No defense evidence was adduced on behalf of the accused
persons.
10. The learned trial court after hearing the rival submission of the
learned counsel for the accused and learned PP for the State passed the
impugned judgment dated 12.05.2011 whereby Lalita Devi was acquitted;
while the accused Kapil Mahato was convicted for the offence under section
326 of IPC and Deepak Mahato was convicted for the offence under section
323 of IPC and sentenced Kapil Mahato with rigorous imprisonment for 3
years and a fine of Rs.2000/- in default of payment of fine, the additional
imprisonment of three months was directed to undergo. While the accused
Deepak Mahato was sentenced with simple imprisonment for three months
for the offence under section 323 of IPC.
4 Cr. Appeal (SJ) No. 398 of 2011
11. Aggrieved from the impugned judgment of conviction and
sentence the instant criminal appeal was directed on behalf of the appellant
convict Deepak Mahato and Kapil Mahato on the ground that the impugned
judgment of conviction and sentence passed by the court below is bad in the
eye of law as the same was not passed in a proper perspective and on the
wrong appreciation of evidence on record. The victim herself has improved
her statement in view of the contents of the FIR which was lodged by
herself. The prosecution case is not proved beyond reasonable doubt. In
view of the above prayed to allow the criminal appeal and to set aside the
impugned judgment of conviction and order of sentence.
12. I have heard the learned Amicus Curiae Mr. Kumar Saurav for
the appellant and learned APP Mr. Tarun Kumar for the State and perused
the material on record.
13. In order to decide the legality and propriety of the impugned
judgment of conviction and sentence passed by the court below the evidence
adduced on behalf of the prosecution is being reproduced hereinbelow:
13.1 PW1- Sanatan Mahato in his examination-in-chief says on
17.11.2003 at 7 O'clock in the morning he was at his house. His mother had
hurled abuse without giving any name for destroying the Khalihan by the
cattle. His elder mother hurled abuse to his mother, his father asked his
mother to go to the house. His mother intruded in her house. At the same
time Kapil Mahato and Deepak Mahato were exhortated to assault. Deepak
Mahato assaulted his mother with the iron rod. Kapil Mahato assaulted with
Dauli which hit on the head of his mother. His mother fell down on the
ground the blood was oozing from the head. His father and his brother-in-
5 Cr. Appeal (SJ) No. 398 of 2011
law both took to the mother to police station and from there to the hospital.
His father Shambhu Mahato was also assaulted by the accused persons.
In cross-examination this witness says Deepak Mahato and
Kapil Mahato both are his cousin brother. Khalihan is at the distance of 20
yards from the house. This Khalihan was of Golak in which the paddy was
of them. In the north of the Khalihan is house of Hari Mahato. In South is
his house, in East is the tree and the land of Golak while in West is the
vacant land of Golak. Police had interrogated him. The case was also
registered on the very day. His mother was unconscious so his father was
interrogated by the police. His mother was rushed to the hospital on the very
day. He was in the hospital for 10 to 12 days. Police has also interrogated
him on the very day of occurrence. He has told to the police that Deepak
Mahato had assaulted with rod which hit on the waist of his mother. The
dispute between the two was old one. It is wrong to say that his mother had
called dian to the mother of Kapil and on the very day of occurrence he had
also addressed the mother of Kapil has dian. It is also wrong to say that this
case was lodged on account of enmity.
13.2 PW2- Sikander Mahato in his examination-in-chief says that
occurrence was of 17.11.2003 at 7 O'clock of morning. Having heard the
noise he reached at the place of occurrence after sometime. Charki Devi had
sustained head injury, blood was oozing, she was in unconscious condition
and he came to know that Kapil Mahato, Deepak Mahato and Lalita Devi all
the three had assaulted Charki Devi with Dauli and iron rod. He took Charki
Devi to the hospital where she remained therefore 10 to 12 days. When she
regained senses the statement of Charki Devi was recorded by the police.
6 Cr. Appeal (SJ) No. 398 of 2011
Charki Devi put her thumb impression while Shambhu Mahato and he put
the signature.
In cross-examination this witness says he did not see the
occurrence. His house is at the distance of 20 yard from the place of
occurrence. His sister-in-law Mamta Kumari had called him. He found his
mother-in-law unconscious. He and his father-in-law took his mother-in-law
to the police station from there she was taken to Bundu hospital. On the very
day she was brought to Bariatu police station. On 24.11.2003 the police of
Bariatu came and recorded the statement. Police had interrogated him at the
house of his inlaws. He had told to police that he came to know from his
sister-in-law that the accused persons had assaulted with rod and Dauli to
his mother-in-law.
13.3 PW3- Malti Devi in her examination-in-chief says the
occurrence was of 17.11.2003 at 7 O'clock of morning she was at the house.
She went to the house of her mother and came to know that Deepak Mahato
and Kapil Mahato both had assaulted to her mother. She was lying on the
ground and blood was oozing from her head and also came to know that on
account of the paddy in the Khalihan which was destroyed by the cattle the
occurrence took place. Deepak Mahato assaulted with iron rod while Kapil
Mahato assaulted with Dauli.
In cross-examination this witness says that she did not see the
occurrence. She reached at the place of occurrence later on. Her house is at
the distance of 200 yard from the place of occurrence. She had seen her
mother lying on the ground in unconscious condition. The blood was oozing
from the head. The incised wound was on the head. Police has also
interrogated her.
7 Cr. Appeal (SJ) No. 398 of 2011
13.4 PW4- Bhusak Mahato in his examination-in-chief says the
occurrence was of one year eight months old. It was morning, he was doing
work in his bari/badi. He came to the place of occurrence and came to know
that Charki Devi was assaulted by Kapil Mahato on the head on the issue of
that the cattle had destroyed the paddy in the Khalihan of Charki Devi.
In cross-examination this witness says that he did not see the
occurrence from his own eye.
13.5 PW5- Balram Mahato in his examination-in-chief says at the
time of occurrence he was going to his agriculture field. He came to know
that his sister-in-law was assaulted by Deepak Mahato with the iron rod and
Kapil Mahato assaulted with Dauli on the issue of destroying the paddy crop
in the Khalihan by the cattle of accused persons.
In cross-examination this witness says it is wrong to say that he
was not at the place of occurrence. He had not stated to the police that
Kapil Mahato had assaulted with Danda rather had stated that Deepak
Mahato assaulted with iron rod while Kapil Mahato assaulted with
Dauli.
13.6 PW6- Charki Devi in her examination-in-chief says it was 7
O'clock of morning she went to the Khalihan and saw that the paddy crop
was destroyed by the cattle. She without giving any name hurled abuse
whose cattle had destroyed her paddy crop. Lalita Devi also hurled abuse to
her in exchange. Her husband asked her to go to the house and she intruded
in the house. Lalita Devi armed with broom and assaulted her. Deepak
Mahato assaulted her with iron rod while Kapil Mahato assaulted with
Dauli which hit on her head. She fell down on the ground and became
8 Cr. Appeal (SJ) No. 398 of 2011
unconscious. She was taken to the hospital where her statement was
recorded after 6 to 7 days from the date of occurrence.
In cross-examination this witness says that in the Khalihan the
paddy crop was of her. The buffalo was grazing the paddy crop. She hurled
abuse. Lalita Devi stated that the said cattle was of her. On the very issue the
occurrence took place. Balram Mahato had also gone to reap the paddy
but was not at the place of occurrence. It is wrong to say that her son had
also called Lalita Devi dian.
13.7 PW7- Shambhu Mahato in his examination-in-chief he stated
that on 17.11.2003 at 7 O'clock of morning the cattle had destroyed the
paddy crop in the Khalihan. His wife hurled abuse without giving any name.
Deepak Mahato, Kapil Mahato and Lalita Devi all came there-Deepak
Mahato assaulted with iron rod on the back of his wife while Kapil
Mahato assaulted with dauli which hit to his head. His wife fell down on
the ground. The blood was oozing from the head. He and his son-in-law
took her to the police station from there he was taken to the hospital.
His wife regained senses after three days from the date of occurrence.
On 24.11.2003 police came there and recorded the statement. On the
fardbeyan he put his signature the same is exhibit-1. The fardbeyan was
given to the police of Bundu police station.
In cross-examination this witness says Khalihan was of Golak.
In north of the same is the land of him, in south is the house of Susen
Mahato, in east is also the house of them, in west is the house of Domana
Mahato. While Charki Devi was hurling abuse standing at the door of the
house at the same time Kapil Mahato and Deepak Mahato both intruded in
the house and assaulted his wife. Kapil Mahato assaulted with Dauli on the
9 Cr. Appeal (SJ) No. 398 of 2011
head while Deepak Mahato assaulted with iron rod which hit on her waist.
His wife became unconscious on account of sustained injuries. He did not
give any statement to the police that his wife was assaulted with Danda.
13.8 PW8- Dr. Madhup Lal in his examination-in-chief says he was
posted at RIMS on 11.12.2003. He had examined the X-ray of patient
Charki Devi and he has seen fracture of the right frontal region. Such
injury can be caused by the sharp cutting weapon. This X-ray report is
in his hand writing and signature marked exhibit-2. The injury report
was of Dr. Binod Kumar marked exhibit-3.
He examined Charki Devi on 11.12.2003. In regard to X-ray he
did not examine the injury.
13.9 PW9- Dr. Binod Kumar in his examination-in-chief says that
on 17.11.2003 he was posted at RIMS as Registrar Surgery. On that day at
11:35 AM he examined Charki Devi who was brought by the police of
Bundu, Ranchi and found following injuries: (i) one stitched wound 6 cm
long with bleeding over the skull, X-ray was done (ii) hair line fracture
of right frontal region of the skull was seen, this wound was grievous in
nature. The X-ray report has already been marked exhibit-3 while the
injury report is marked as exhibit-2.
Primary injury report was not with me at the time of X-ray.
The patient did not tell about the primary injury report. Patient was
referred from Bundu Hospital. The paper of referal hospital was given
to him.
14. The prosecution case is based on direct evidence. The eye
witness of the occurrence is PW-6 Charki Devi who is informant and
injured as well. PW1- Sanatan Mahato the son of informant and PW7-
10 Cr. Appeal (SJ) No. 398 of 2011
Shambhu Mahato the husband of the informant are the eye witness of the
occurrence. PW6- Charki Devi in her examination-in-chief in her
statement has proved the contents of the FIR and also stated that Kapil
Mahato had assaulted her with Dauli which hit on her head while
Deepak Mahato had assaulted with the iron rod which hit on her back.
On account of sustaining head injury the blood was oozing from the head
and she had become unconscious. When she regained senses in the hospital
her fardbeyan was recorded by the police. The cause of occurrence is
shown by this witness that in the Khalihan her paddy crop was there,
same was destroyed by the cattle of the accused persons. On having
hurled abuse by her without giving any name the accused persons had
assaulted her. The mother of Deepak Mahato and Kapil Mahato namely
Lalita Devi hurled abuse to her then she intruded in her house. On being
exhortated by Lalita Devi her both the son Deepak Mahato and Kapil
Mahato assaulted her.
15. PW1- Sanatan Mahato the son of the informant is also the
eye witness. He stated that having destroyed the paddy crop in the Khalihan
by the cattle of the accused persons. On hurling abuse without giving any
name by her mother Lalita Devi also hurled abuse and on being exhortated
by her, her both the sons Kapil Mahato and Deepak Mahato came, Deepak
Mahato assaulted with iron rod which hit on the waist of his mother and
Kapil Mahato assaulted with Dauli which hit on the head of his mother.
His mother became unconscious on the spot due to sustaining injury. His
brother-in-law and his father both took her to the hospital.
16. PW7-Shambhu Mahato the husband of informant is also the
eye witness. He also stated that on 17.11.2003 at 7 O'clock of morning the
11 Cr. Appeal (SJ) No. 398 of 2011
cattle of the accused persons had destroyed the paddy crop in the
Khalihan, on this his wife had hurled abuse without giving any name,
Lalita Devi opposed the same and hurled abuse in exchange. He asked
his wife to go to the house she went house but on being exhortated by Lalita
Devi her son Kapial Mahato armed with Dauli and Deepak Mahato
armed with iron rod came and assaulted to his wife. Deepak Mahato
assaulted on the waist with the iron rod while Kapil Mahato assaulted
with Dauli on the head of his wife. She sustained injuries and blood was
oozing from the head. She became unconscious, he and his son-in-law took
her to the police station thereafter to the hospital and on having regain
senses her fardbeyan was recorded on which he also put the signature.
17. All the above three eye witnesses of the occurrence whose
presence cannot be doubted at the place of the occurrence have narrated how
the accused persons had assaulted to Charki Devi. There is no contradiction
in the statement of all these eye witnesses in the statement given by them to
the investigating officer under section 161 of Cr.PC and the statement given
by them during the examination in the trial before the trial court. The
testimony of an injured witness holds much significance. The testimony
of both the injured witness PW6- Charki Devi and testimony of the eye
witness PW1- Sanatan Mahato and PW7- Shambhu Mahato who had
seen the occurrence and were present at the time of occurrence cannot
be disbelieved. The contention of learned counsel for the appellant that
these witnesses were the interested witness cannot be sustained reason
being that the place of occurrence is the house of the informant-victim
and the presence of her husband and son is not shacked by the defense
counsel in the cross-examination of all the three eye witnesses. So far as
12 Cr. Appeal (SJ) No. 398 of 2011
the enmity between the accused person and the informant is concerned the
enmity is a double edged weapon on account of the same prosecution
story cannot be disbelieved.
17.1 The Hon'ble Apex Court in "Baldev Singh v. State of Punjab"
2013 AIR SCW 5524 held:
"20.We are also unable to accept the submission of Mr. Sharan
that the evidence of PW-3 and PW-4 ought not to be relied on by
the trial court and the High Court when there was evidence to
show that there was enmity between PW-3 and PW-4 on the one
hand and the appellants on the other hand. Where there is
previous enmity between the witness and the accused, the
evidence of the witness has to be carefully scrutinized by the
Court before it is accepted, but only on account of such enmity
the Court cannot discard the evidence of the witness altogether.
[See State of U.P. v. Kishanpal and others (2008) 16 SCC 73 :
(AIR 2009 SC (Supp) 1238)]. Moreover, witnesses who are not
related to a victim of an offence are in some situations difficult
to find. This is one such situation where the appellants have
come to the house of the complainant (PW-3) early in the
morning at 5.00 am on 29.10.1991 and picked up seven
members of his family and it is difficult to find persons
witnessing this incident at 5.00 a.m. during the last part of
October. Moreover, one of the appellants was a Deputy
Superintendent of Police and therefore even if some one had
witnessed the incident, he would prefer not to narrate the
incident either before the Investigating Officer or before the
Court. In such a situation, the Court has to consider carefully
and cautiously the evidence of witnesses who may have had
enmity with the accused. On such careful and cautious
consideration, it is difficult to discard the evidence of PW-3 that
the appellants picked up seven members of his family on
29.10.1991 at 5.00 a.m. from his house particularly when it is
corroborated by the evidence of PW-4 as well as the complaint
dated 19.01.1992 (Ext. PB) of PW-3 which had been registered
as the FIR. In our considered opinion, therefore, the trial court
and the High Court could not have rejected the evidence of PW-
3 and PW-4 on the ground of enmity between PW-3 and PW-4 on
the one hand and the appellants on the other hand."
13 Cr. Appeal (SJ) No. 398 of 2011
17.2 The Hon'ble Apex Court in "Vijay Shankar Shinde & Ors. v.
State of Maharashtra" AIR 2008 SC 1198 held:
"8. Though the Trial Court observed that PWs 9 and 11 may
have tried to exaggerate because former was the widow and
latter was injured victim, the evidence of PWs 12 and 13
establish the prosecution version.
9. The Trial Court was not justified in holding that because
PW11 was an injured witness he may have reason to falsely
implicate the accused. However, as rightly observed by the Trial
Court and the High Court, the evidence of PWs 12 and 13 does
not suffer from any deficiency. PWs 11, 12 and 13 were cross-
examined at length but nothing substantial could be elicited to
destroy the credibility of their version. As a matter of fact, the
evidence of injured person who is examined as a witness lends
more credence, because normally he would not falsely implicate
a person thereby protecting the actual assailant.
10. The Trial Court as well as the High Court have rightly
placed reliance on the evidence of the eye-witnesses and as
noted above their evidence was clear and cogent."
17.3 The Hon'ble Apex Court in "Babasaheb Apparao Patil vs.
State of Maharashtra" 2009 AIR SCW 936 held:
"12. It is to be borne in mind that some discrepancies in the
ocular account of a witness, unless these are vital, cannot per se
affect the credibility of the evidence of the witness. Unless the
contradictions are material, the same cannot be used to jettison
the evidence in its entirety. Trivial discrepancies ought not to
obliterate an otherwise acceptable evidence. Merely because
there is inconsistency in evidence, it is not sufficient to impair
the credibility of the witness. It is only when discrepancies in the
evidence of a witness are so incompatible with the credibility of
his version that the court would be justified in discarding his
evidence.
14. In Appabhai and Anr. Vs. State of Gujarat2, this Court had
again emphasized that while appreciating the evidence, the
court should not attach undue importance to minor
discrepancies. The discrepancies which do not shake the basic
version of the prosecution case may be discarded. Similarly, the
discrepancies which are due to normal errors of perception or
14 Cr. Appeal (SJ) No. 398 of 2011
observation should not be given importance. The Court by
calling into aid its vast experience of men and matters in
different cases must evaluate the entire material on record as a
whole and should not disbelieve the evidence of a witness
altogether, if it is otherwise trustworthy."
17.4 The Hon'ble Apex Court in "Ashok Kumar Chaudhary & Ors.
v. State of Bihar" 2008 AIR SCW 3739 held:
"7. We are not impressed with the argument. Though it is true
that the incident having taken place near the market around 6
p.m. on 17th July, 1988, the prosecution should have attempted
to secure public witnesses who had witnessed the incident, but at
the same time one cannot lose sight of the ground realities that
the members of the public are generally insensitive and reluctant
to come forward to report and depose about the crime even
though it is committed in their presence. In our opinion, even
otherwise it will be erroneous to lay down as a rule of universal
application that non-examination of a public witness by itself
gives rise to an adverse inference against the prosecution or that
the testimony of a relative of the victim, which is otherwise
credit-worthy, cannot be relied upon unless corroborated by
public witnesses. Insofar as the question of credit-worthiness of
the evidence of relatives of the victim is concerned, it is well
settled that though the Court has to scrutinize such evidence
with greater care and caution but such evidence cannot be
discarded on the sole ground of their interest in the prosecution.
The relationship per se does not affect the credibility of a
witness. Merely because a witness happens to be a relative of the
victim of the crime, he/ she cannot be characterized as an
"interested" witness. It is trite that the term "interested"
postulates that the person concerned has some direct or indirect
interest in seeing that the accused is somehow or the other
convicted either because he had some animus with the accused
or for some other oblique motive."
17.5 The Hon'ble Apex Court in "Ravishwar Manjhi & Ors. v.
State of Jharkhand" (2008) 16 SCC 561 held:
"30. Out of seven eyewitnesses, PW 7 was not believed by the
courts below. PWs 4 and 5 were not present exactly at the place
of occurrence. They are said to have witnessed only a part of the
15 Cr. Appeal (SJ) No. 398 of 2011
occurrence. All other eyewitnesses were related to the deceased.
However, we do not hesitate to add that only on that ground
their evidences should not be disbelieved."
18. Further the testimony of these eye witnesses are also
corroborated with the testimony of the witness PW2- Sikander Mahato,
PW3- Malti Devi, PW5- Balram Mahato. These witnesses though had not
seen the occurrence but reached there immediately after the occurrence and
came to know that it was Kapil Mahato who assaulted with Dauli to Charki
Devi which hit on her head and Deepak Mahato had assaulted with iron rod
which hit on her waist. They also found Charki Devi in injured condition at
the place of occurrence and their testimony also becomes admissible in
evidence because they came to know in regard to the occurrence from
PW1- Sanatan Mahato and PW7- Shambhu Mahato both have been
examined therefore their testimony also becomes admissible in evidence
though based on hearsay.
18.1 The Hon'ble Apex Court in "Mukhtiar Singh & Anr. v. State of
Punjab" 2009 AIR SCW 1475 held:
"8. PW-5 has clearly stated in his statement that no telephone
was installed at the Railway Station, Kahangarh but there was a
telephone installed at the Railway Control Room at the Railway
Station which, however, was found to be out of order. He also
stated that he had gone to GRP Police Post at Budhlada from
where he sent a message to the Control Room at Bathinda on
telephone about the occurrence. The aforesaid statement clearly
explains the delay in sending the information and also explained
as to why detailed information regarding all materials leading to
the occurrence was not mentioned by him. He cannot be called
in any manner an interested witness; in fact he was a most dis-
interested witness. Nothing has been brought on record to show
that he is inimical to the accused persons. He has specifically
stated in his depositions that he saw the aforesaid accused
running towards the village side carrying weapons. His presence
at the spot cannot be doubted as it is established that he was at
16 Cr. Appeal (SJ) No. 398 of 2011
duty at the Railway Police Post, Kahangarh, which is the place
of occurrence. He has also stated in his depositions that he had
in fact chased the two accused persons up to a certain distance
but could not manage to nab them and that when he returned to
the scene of occurrence, Surjit Kaur, PW-3, disclosed to him
about the occurrence. This shows that he did not see the accused
persons attacking the deceased but learnt about the same from
an eye witness and the said information about the dead body
lying at the platform was flashed by him, for he knew that on
receipt of the aforesaid information the police should start
investigation and during that course police would definitely ask
eye SC1858 witnesses and get all the information from them. In
any case, his information would be hearsay evidence, but as the
same corroborates the substantive evidence of PW. 2 and PW. 3
the same would be admissible, as was held in the case of Pawan
Kumar v. State of Haryana, [(2003) 11 SCC 241], wherein it was
observed that evidence of such nature could be used to
corroborate the substantive evidence. However, in that case, as
there was no substantive evidence the benefit of said evidence
was not granted."
19. The ocular evidence is also corroborated with the medical
evidence. As per ocular evidence the head injury was caused with Dauli
and the injury on the waist was caused with the iron rod. In ocular
evidence the role of assaulting head injury has been attributed to Kapil
Mahato; while the injury caused in the waist has been attributed to the
convict/appellant Deepak Mahato. PW8- Dr. Madhup Lal had examined
the injured Charki Devi on 11.12.2003. He had examined the x-ray report of
the patient Charki Devi on 17.11.2003 and he opined that the hair line
fracture of the right frontal region was seen. Such injury can be caused
by the sharp cutting. This report is in his handwriting and sign is
marked as exhibit-2. This witness also further says that the injury
report written by Dr. Binod Kumar is also marked as exhibit-3.
17 Cr. Appeal (SJ) No. 398 of 2011
20. PW9- Dr. Binod Kumar who examined the injured Charki
Devi on 17.11.2003 at 11:35 and who was brought to him by the police
station Bundu, Ranchi and she was admitted at the RIMS hospital bearing
registration no. ERS/3440 dated 17.11.2003 and he found following injuries:
(i) one stitched wound 6 cm long with bleeding over skull x-
ray was also done. Skull A.P. and lateral reason plate no.3303/2 dated
17.11.2003.
As per x-ray report hair line fracture of the right frontal
region of the skull is seen. The patient was referred to RIMS from the
Hospital Bundu. This injury was grievous in nature. This injury report is
already marked exhibit-3 therefore, the ocular evidence is also well
corroborated with the medical evidence.
The injured was examined on 17.11.2003 at 07:45 at RH,
Bundu by the Medical Officer, RH, Bundu which is exhibit-4 on lower
court record and following injuries are shown therein:
(i) lacerated wound just above left eyebrow about 4cm x
0.2cm x skin deep.
(ii) T/I within back.
(iii) N/I simple.
(iv) N/I scar mark of the above wound.
21. Herein it is pertinent to mention that the assault given with
Dauli which is sharp weapon is on the skull. Taking into account the
seat of the injury which is on the skull the lacerated wound is likely to
be caused by hitting with the sharp edged weapon.
18 Cr. Appeal (SJ) No. 398 of 2011
21.1 Medical jurisprudence and toxicology by Lyton (11th
Edition) page 452 deals with lacerated wound then page 843 of this book
reads as under:
"Lacerated wounds are common regions where unyielding bone
closely underlies the surface. Tissues that are powerfully
compressed between the bones and the instrument or the ground
as the case may be give way long the line of greatest pressure
resulting wound may cursory inspection present the appearance
of incise wound."
21.2 HWV KOX in his book Medical Jurisprudence and
Toxicology (VIIth Edition) at page 395 dealing with lacerated wound
reads as under:
"Split Laceration: Splitting occurs by crushing skin between the
two hard objects. They are called incised looking wounds when
there is application of blunt force on areas where the skin is
closely applied to the bone and sub-cutaneous tissues is scanty,
the wounds are produced by the linear splitting of the skin. The
common areas are scalp, eyebrows and hibones. They can be
differentiated by examining the margins by magnifying glass and
in these cases the roots of hair are crushed."
22. In view of the test of Medical Jurisprudence, the ocular
evidence is also fully corroborated with the medical evidence in the case
in hand.
23. The statement of the appellant convict Deepak Mahato and
Kapil Mahato was also recorded under section 313 of Cr.PC. All the
incriminating circumstances which was against them in the evidence
adduced by the prosecution was put to these accused persons to explain but
same is stated to be wrong by the accused persons and told themselves to be
innocent.
24. In view of the overall analysis of the evidence ocular and
documentary on record the charge for the offence under section 326 of IPC
19 Cr. Appeal (SJ) No. 398 of 2011
is proved beyond reasonable doubt against the appellant convict Kapil
Mahato and the charge under section 323 of IPC is made out against the
appellant/convict Deepak Mahato.
25. The impugned judgment of conviction dated 12.05.2011 passed
by the learned court below does not bear any infirmity and the same needs
no interference.
26. So far as the sentence inflicted by the learned court below for
the charge under section 326 of IPC to the appellant Kapil Mahato is
concerned, the same is 3 years and the same needs no interference.
27. So far as the sentence inflicted to Deepak Mahato for the
charge under section 323 of Cr.PC is concerned which is 3 months the same
may be modified with the admonition by exercising power under section
360(4) of Cr.PC releasing the appellant Deepak Mahato after due
admonition, in view of the date of occurrence and the period taken in
the trial and deciding the appeal as well pending since 2003 and 2011
respectively.
28. Accordingly this criminal appeal is dismissed. The impugned
judgment of conviction of both the appellant dated 12.05.2011 is upheld
and the sentence dated 13.05.2011 of the appellant no.2 namely, Kapil
Mahato is upheld; while the sentence of the appellant no.1 namely,
Deepak Mahato as inflicted by the learned trial court is modified
releasing the appellant after due admonition.
29. The bail bonds of both the appellants are hereby cancelled
and the sureties are discharged from their liabilities.
30. The appellant Kapil Mahato is directed to surrender before the
court below to serve out the sentence. The learned trial court is also directed
20 Cr. Appeal (SJ) No. 398 of 2011
to ensure the compliance of the judgment to serve out the sentence by the
appellant convict Kapil Mahato by sending him to the jail concerned.
31. Let the record of learned lower court be sent back alongwith
copy of judgment for necessary compliance.
(Subhash Chand, J.)
Jharkhand High Court, Ranch
RKM
Dated: /01/2024
AFR
