Cr. Appeal(S.J.)No.313 of 2001
Against the judgment of conviction and order of sentence passed
by the Additional Judicial Commissioner-II, Khunti in Sessions Trial
No. 616 of 1996.
-----------
Kartik Singh Munda. ... ... ... ... ...Appellant(s)
-Versus-
The State of Jharkhand. ... ... ... ... ...Respondent(s)
-----------
For the Appellant(s): M/s A.K.Mehta & Rupesh Singh, Advocates.
For the State: Ms. Anita Sinha, A.P.P.
-----------
C.A.V. on 05.01.2009 : Pronounced on 17.02.2009
-----------
P R E S EN T
HON'BLE MR. JUSTICE DILIP KUMAR SINHA
-----------
D.K.Sinha,J. This appeal is directed against the judgment of conviction under
Section 324 I.P.C. recorded by the Additional Judicial Commissioner-II, Khunti in
Sessions Trial No. 616 of 1996 whereby the sole appellant Kartik Singh Munda
was directed to be released on execution of probation bond of Rs. 3,000/- with two
sureties of like amount each and to maintain good conduct for a period of one year
since the date of the order.
2. The prosecution story in short as it stands narrated in the written
report of the informant P.W. 7 Smt. Devi was that on 21.08.1995 while she was
returning from the field after serving food to her father at about 8.30 a.m. and no
sooner did she arrive near her house she found her father coming running behind
her followed by three accused persons including the appellant, armed with guns
and she alleged that the appellant Kartik Singh Munda fired shot from his gun upon
his father but it missed the target and hit the informant. The villagers arrived at the
scene on the sound of gun fire but all the three culprits escaped by firing shots in
the air. The motive behind such attack was that the culprits wanted to restrain her
father from plaughing his own field. On the written report submitted by the
informant the police instituted Tamar P.S. Case No. 66 of 1995 for the offence
under Sections 448/307/324/34 I.P.C. and after investigation charge-sheet was
submitted against all the three accused but showing the appellant absconder. The
case was committed to the court of sessions and the appellant also joined the Trial
in the sessions court where all the three accused were put on trial on framing of
charge under Sections 324/307 I.P.C. as also under Section 27 of the Arms Act.
3. The Counsel for the appellant assailed the impugned judgment on
the ground that the learned Trial Judge failed to take into consideration that the
injuries sustained by the informant according to the medical evidence was not in
consonance with the statement of the informant what she projected in her written
statement. The Doctor P.W. 8 examined the injury on the informant and found a
small punctured wound at the base of index finger of her right hand. The admitted
land dispute between the parties was ignored by the Trial Court as they were
contesting their title over the disputed land. The learned Counsel urged that the
Trial Court ignored the stand of the defence that the informant’s party wanted to
dislodge one Kalicharan Singh Munda from the village Headmanship who was
none other than the father of the appellant herein. Though the prosecution
witnesses were consistent that the shots were fired from guns indiscriminately with
2
the intention to commit murder of the father of the informant P.W. 2 Bharat Mahto
but it missed the target not once but twice, thrice and so on at all the occasions.
The informant P.W. 7 narrated in the manner as if she stood as shield of her father
but without any shot injury alleged to be caused on her person as stated in the
written report. The learned Counsel exhorted that about 40/50 villagers assembled
at the alleged place of occurrence after hearing the sound of firing shots but only
interested witnesses were produced at the behest of the informant’s-party and the
independent witnesses were withheld from the witness box without any
explanation.
4. Finally, learned Counsel submitted that the appellant was highly
prejudiced for non-examination of the Investigating Officer in this case being
denied of the opportunity to cross-examine about his objective finding as to
whether he found any evidence of firing of shots at the place of occurrence or that
he had referred the informant to the Doctor for the examination of her injury or as
to whether he had received any pillet from the custody of the doctor P.W. 8 and
sent it to the Forensic Science Laboratory for test or recovered any fire arms from
the appellant. The Doctor examined the informant and admitted in his testimony
that he did find injury on the base of the index finger of her right hand but admitted
having not delivered the pillet which he had recovered to the police officer. He fairly
admitted that the victim was not examined on the requisition of the police. The
Counsel, therefore, drew an inference that the injury report was procured by
influencing the P.W. 8 with the desired fictitious injury on the informant alleged to
be caused by firearm but without corroboration. The learned Counsel pointed out
that the informant P.W. 7 testified in the Court that she sustained three injuries
caused by gun fire including on her back and the pillet caused penetrating hole in
her blouse and back but the Doctor did not find any injury on her back nor did she
produce the said blouse before the police either during investigation in the Court
therefore the prosecution failed to establish that the injury found at the base of the
index finger of her right hand was caused by firearms and for want of such
evidence the appellant should not have been convicted for the alleged charge
under Section 307 I.P.C. against the appellant and two other co-accused. The
prosecution further failed to prove that on the given facts and circumstance offence
under Section 324 Indian Penal Code was attracted against the appellant but he
was convicted without appreciating the material required for the offence under
Section 324 I.P.C. on erroneous consideration and therefore, the appellant is
liable to be acquitted and exempted from executing bond.
5. I find from the impugned judgment that P.W. 1 Bisheshwar Mahto,
P.W. 2 Bharat Mahto, P.W. 3 Munshi Mahto, P.W. 5 Charan Mahto and P.W. 7
Srimati Devi ( injured informant) claimed to be the eye-witness of the occurrence
whereas P.W. 4 Lohara Mahto and P.W. 6 Kedar Mahto were the hearsay
witnesses but closely related to P.W. 2 Bharat Mahto and his daughter P.W. 7 who
was the informant.
6. P.W. 8 Dr. Mahendra Prasad had examined the informant P.W. 7
Smt. Devi on 21.8.1995 while he was posted as Medical Officer at Additional
Primary Health Centre, Sarjamdih, Tamar at about 11 a.m. and found the following
injuries;-
3
(i) Punctured wound on base of the right index finger of
size 1/4"x 1/8"x 1/8".
(ii) The above injury was caused by gun shot, simple in
nature within 24 hours of the examination and he proved the
injury report Ext. 1. He admitted having referred the patient to
R.M.C.H. In the cross-examination, the Doctor admitted that
though the pillet was removed by him but he did not preserve it
at the Primary Health Centre nor it was sent to the police. He
admitted that the police had not referred the patient/injured to
him at the Additional Primary Health Centre and he assessed
that the pillet might have come from front side or left side or
right side of the patient but could not have from back side of
the patient. He further admitted having not mention in the
injury report that there was any tattoo mark around the injury
and that he had also not mentioned the age of the patient in the
report.
7. On careful scrutiny of the prosecution case and its parity with the
injury report, I find that the injury report (Ext.1) issued by P.W. 8 Dr. Mahendra
Prasad and his testimony were not in consonance with the prosecution case as
narrated by the informant P.W. 7. It would be relevant to mention that in the written
report presented first point in time before the Tamar Police, the informant Smt.
Devi had not disclosed that she had sustained any gun shot injury fired by the
appellant or other accused persons. She had not even disclosed that any other
witness had sustained injury in the incidence of alleged shooting but in her
statement in course of trial she made substantial development by testifying that the
appellant fired shot aiming at her father but the shot missed the target and stuck to
her causing injuries at three places viz. back, waist and on the base of the index
finger of her right hand. The Doctor did not find any injury on her back and waist
alleged to be caused by shot from firearm. The fact as produced on the record is of
much relevance that the injury found by P.W. 8 Dr. Mahendra Prasad on the base
of the right index finger was of a very small size ΒΌ”x 1/8″x 1/8″ but the witness
neither mention the size of pillet so as to co-relate its lodging at the site of injury
nor cared to send the same to the nearest police. The prosecution further failed to
prove that the manifestation of injury on the index finger was caused by an
instrument which, used as weapon of offence, was likely to cause death, or by
means of fire or any heated substance, or by means of any poison or any corrosive
substance, or by means of any explosive substance or by means of any substance
which was deleterious to the human body to inhale, to swallow, or to receive into
the blood so as to attract an offence punishable under Section 324 I.P.C. I am
conscious to observe that the prosecution witnesses were consistent that shots
were fired upon Bharat Mahto P.W. 2 even from behind P.W. 7 Srimati Devi but
according to P.W. 8 Dr. Mahendra Prasad shot was fired either from front or left or
right side of Smt. Devi. He did not find any tattoo mark on the injury which is an
essential feature in case of the injury caused by firing shots. Similarly, there was no
evidence on the record in support of the contention that the informant remained as
indoor patient for a few days at Ranchi Institute of Medical Science, Ranchi. I have
reason to observe that a reasonable doubt is created as to the complicity of the
appellant for the alleged charge even under Section 324 I.P.C. in which he was
convicted by the Trial Court though initially not framed against him. Conviction
under lesser gravity of offence of an accused is permissible if the charge is framed
in a graver offence such as under Section 307 I.P.C. but under given situation and
4
major contradiction in the statements of P.W. 7 and P.W. 8 referred to
hereinabove, I am constrained to rely upon the testimony of other witnesses such
as P.W. 1 Bisheshwar Mahto, P.W. 2 Bharat Mahto, P.W. 3 Munshi Mahto, P.W. 5
Charan Mahto. I further find and observe that the materials produced and adduced
on the record on behalf of the prosecution were not sufficient to hold the appellant
guilty for the charge under Section 324 I.P.C. which has been recorded by the Trial
Court without appreciating the nature and quality of the evidence. The conviction of
the appellant Kartik Singh Munda under Section 324 I.P.C. under the facts and
circumstances, therefore, cannot sustain. I find substance in the argument
advanced on behalf of the appellant that the prosecution failed to prove the charge
under Section 324 I.P.C. against the appellant beyond shadow of all reasonable
doubts accordingly, conviction of the appellant under Section 324 I.P.C. and the
order passed by the A.J.C.-II, Ranchi calling upon the appellant to execute bond in
Sessions Trial No. 616/1996 arising out of Tamar P.S. Case No. 66 of 1995 is set
aside.
8. This petition is allowed and the appellant Kartik Singh Munda is
discharged and exempted from executing any bond in this case.
[D.K.Sinha,J.]
Jharkhand High Court, Ranchi
Dated the 17.02.2009
P.K.S./A.F.R.