Criminal Appeal (SJ) No. 20 of 2002
Against the judgment of conviction dated 02.01.2002 and order of sentence
dated 07.01.2002 passed by Shri Hari Shankar Prasad, Sessions Judge, Giridih in
Sessions Trial No. 196 of 1991.
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1. Babulal Mahto
2. Bhuneshwar Mahto
3. Basudeo Mahto
4. Kishun Mahto
5. Ritlal Mahto
6. Narayan Mahto
7. Kartik Mahto
8. Baleshwar Mahto
9. Ram Chandra Mahto
10. Harihar Mahto
11. Bhuneshwar Mahto @ Lato Mahto ......... Appellants
Versus
The State of Jharkhand .......... Respondent
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For the Appellants : M/S Arjun Narain Deo, P.P. Chatterjee, Advocate
For the State : Mr. Md. Hatim, A.P.P.
For the Informant : Mr. Shree Nivas Roy
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P R E S EN T
THE HON'BLE MR. JUSTICE PRADEEP KUMAR
By court: This appeal is directed against the judgment of conviction dated
02.01.2002
and order of sentence dated 07.01.2002 passed by Shri Hari
Shankar Prasad, Sessions Judge, Giridih in Sessions Trial No. 196 of 1991,
by which judgment, the learned Sessions Judge found the accused
persons guilty for the offence under Sections 304/149 of the Indian Penal
Code and convicted the appellants Babulal Mahto, Bhuneshwar Mahto and
Basudeo Mahto (Appellant Nos. 1, 2 and 3) under Sections 304 and 325 of
the Indian Penal Code and sentenced them to undergo rigorous
imprisonment for seven years under Sections 304 of the Indian Penal
Code and they have been further sentenced to undergo rigorous
imprisonment for three years under Section 325 of the Indian Penal Code,
with a direction that both the sentences passed against them will run
concurrently.
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Appellants, namely, Kishun Mahto, Narayan Mahato and Baleshwar
Mahto (Appellant Nos. 4, 6 and 8) have been found guilty under Section
324 of the Indian Penal Code and they have been sentenced to undergo
rigorous imprisonment for one year.
All the other accused persons, namely, Ritlal Mahto, Kartik Mahto,
Ramchandra Mahto, Harihar Mahto and Bhuneshwar Mahto @ Lato Mahto
(Appellant Nos. 5, 7, 9, 10 and 11) have been found guilty under Sections
323 of the Indian Penal Code and they have been sentenced to undergo
rigorous imprisonment for six months each under Section 323 of the
Indian Penal Code.
2. The Prosecution case was started on the basis of fardbeyan given
by the informant, Basudeo Mahto (P.W.9) to the A.S.I., Nand Kishore
Singh (P.W.12) of Hirodih police station at village Sihodih, stating therein
that on 11.12.1990 at about 11.30 A.M. in the morning, the informant,
Basudeo Mahto (P.W.9) along with his brother Harihar Mahto (P.W.5),
Mahadeo Mahto (P.W.7), Prameshwar Mahto (deceased), Iswar Mahto
(P.W.2) and other female members of the house were cutting their paddy
crops in their field, when the accused persons, namely, Kishun Mahto,
Ritlal Mahto, Narayan Mahto, Baleshwar Mahto, Kartik Mahto, Ram
Chandra Mahto, Jiwan Mahto, Jagdish Mahto, Babulal Mahto, Harihar
Mahto, Bhuneshwar Mahto armed with Lathi, Danda, Tangi, etc. came to
the paddy field and started rebuking as to why they were cutting the
paddy crops and when they objected to do so, on the instance of Kishun
Mahto, the accused persons surrounded the informant-party and started
assaulting them with Lathi, Danda and Tangi. The informant was
assaulted by Kishun Mahto with lathi causing injury on his left pakhura,
left knee, right hand gutta, forehead and on back. The accused, Babulal
Mahto assaulted his brother Prameshwar Mahto with pasa of tangi by
which his leg got broken. His other brother, Mahabir Mahto, Harihar
Mahto and Iswar Mahto were also injured. They all have sent to Giridih
Sadar hospital for treatment. On hearing the hulla, villagers Magister
Singh S/o Babu Singh along with others also came and stopped the
accused persons, but in course of their mediation, Magister Singh also
received injury. Thereafter, on seeing other villagers coming, the accused
persons ran away.
3. On the basis of the said fardbeyan, the police registered a case
under Sections 304, 304/149, 323, 324, 325, 147 and 148, 149 and 341 of
the Indian Penal Code. It appears that during investigation, witness,
Prameshwar Singh died and Section 304/307 was also added and after
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investigation police submitted charge sheet under Sections referred to
above.
4. Since, the case was exclusively triable by the court of Sessions,
learned magistrate after taking cognizance committed the case to the
Court of Sessions for trial and subsequently, the case was tried by the
Sessions Judge, Giridih and the appellants were found guilty and
convicted and sentenced as aforesaid.
5. In course of trial, the prosecution has examined as many as
thirteen witnesses.
6. P.W.1 is Bihari Mahto, who is the father of the informant, P.W.2 is
Iswar Mahto, P.W.3 is Magister Singh, P.W.4 is Chandrika Mahto, P.W.5 is
Harihar Mahto, P.W.6 is Baldeo Mahto, P.W.7 is Mahadeo Mahto, P.W.8 is
Teklal Mahto, P.W.9 is Basudeo Mahto, the informant of the case P.W.10
is Dr. Suresh Chandra Sharma, P.W.11 is Dr. B.P. Singh, P.W.12 is A.S.I.,
Nand Kishore Singh, I.O. of the case and P.W.13 is Dr. Chandra Shekher
Prasad. The defence has also examined two formal witnesses namely
D.W.1, Khublal Yadav and D.W.2, Awadh Kishore Prasad Sinha.
7. It is submitted by the learned counsel for the appellants that it
appears from the evidences adduced in the court that they have changed
the entire prosecution case as given in the fardbeyan by the informant,
P.W.9, wherein he had stated that the occurrence took place at 11.30
A.M., when he and his brothers with lady members were cutting paddy
crops in the field, then the accused persons came and stopped them from
working in the field and when they examined in the court they stated that
occurrence took place at 7.30 A.M. in the morning and the accused
persons were cutting the crops in the field when the informant and
witnesses went there and objected and then the occurrence took place.
Thus, it is submitted by learned counsel for the appellants that this
departure from the original statement of the informant, P.W.9 in the
fardbeyan has made the entire prosecution case doubtful. It is further
argued by learned counsel for the appellants that the witnesses have
proved the F.I.R. and the injury report of the counter case and as many
as seven persons were injured in the counter case, but the prosecution
witnesses have failed to explain the injuries on the person of the accused
persons and these two discrepancies have made the entire prosecution
case doubtful and fit to be set aside.
8. On the other hand, learned counsel for the State stated that the
change in time and manner of occurrence as laid by the appellants are
minor in nature and as such the conviction is well founded.
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9. After hearing both the parties and after going through the entire
prosecution case, I find that the main witness i.e. the informant, P.W.9
and his brothershave changed the time and place and manner of
occurrence, when they were examined in court.
P.W.1, Bihari Mahto stated that the occurrence took place on
11.12.1990 at 7.30 A.M. in the morning and he was at his home and when
he received information that the accused persons are looting the paddy
crops in the field containing Khata No. 19 and Plot No. 1282, which is
their ancestral land, then P.W.1, Bihari Mahto rushed at the place of
occurrence and saw that Narayan Mahto, Kishun Mahto, Ritlal Mahto,
Baleshwar Mahto, Kartik Mahto, Basudeo Mahto, Bhuneshwar Mahto,
Babulal Mahto, Bhuneshwar Mahto @ Lato Mahto, Jiwan Mahto, Harihar
Mahto and Ramchandra Mahto were cutting the crops and looting the
same. Basudeo Mahto and Babulal Mahto had tangi in their hands and
Kishun Mahto and Baleshwar Mahto had also tangi and the other accused
persons had lathis. P.W.1 further stated that when they asked them not
to do so, then Prameshwar Mahto was assaulted by Bhuneshwar Mahto
with lathi and then he felled down and Basudeo Mahto attacked on his leg
below the knee (thehuna) with the pasa of the tangi. Thereafter, Babulal
Mahto also assaulted Prameshwar Mahto with the pasa of tangi breaking
his leg.
10. The informant, Basudeo Mahto (P.W.9) also departed from his
original statement given in the fardbeyan. When he was examined in the
court, he stated that the occurrence took place at 7.30 A.M. in the
morning when he was at home and after hearing hulla, he went to his
field and saw that Basudeo Mahto, Bhuneshwar Mahto, Babulal Mahto,
Kishun Mahto, Ritlal Mahto, Narayan Mahto, Jagdish Mahto, Ramchandra
Mahto, Harihar Mahto, Jiwan Mahto, Bhuneshwar Mahto @ Lato and
Baleshwar Mahto @ Fattu were cutting crops in his field and when his
brothers Prameshwar Mahto, Iswar Mahto, Harihar Mahto and Mahadeo
Mahto asked them not to do so, whereupon, Prameshwar Mahto was
assaulted by Bhuneshwar Mahto with lathi and thereafter, Basudeo Mahto
and Babulal Mahto assaulted him with pasa of tangi causing fracture on
his right leg. P.W.9 along with Harihar Mahto, Mahadeo Mahto, Iswar
Mahto and Magister Singh were also assaulted.
11. Similarly, the injured witness P.W.2, Iswar Mahto has also stated
that the occurrence took place five years back at 7.30 A.M. in the morning
when on hearing hulla he went to the field along with his brother
Prameshwar Mahto and found that Basudeo Mahto, Bhuneshwar Mahto,
Babulal Mahto, Kishun Mahto, Narayan Mahto, Ritlal Mahto, Kartik Mahto,
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Ramchandra Mahto, Harihar Mahto, Jiwan Mahto and Baleshwar Mahto @
Fattu were cutting and looting the crops of their land. The accused
persons, namely, Basudeo Mahto, Babulal Mahto, Baleshwar Mahto and
Kishun Mahto had tangi in their hands and all other accused persons had
lathi. When they asked them as to why they were cutting the crops, they
started assaulting. Prameshwar Mahto was assaulted by Basudeo Mahto
with pasa of tangi and Bhuneshwar Mahto also assaulted him with lathi.
The accused Babulal Mahto also assaulted him with pasa of tangi. P.W.2,
Iswar Mahto also received injuries from the pasa of tangi by Baleshwar
Mahto. He stated that the accused Kartik Mahto also assaulted him with
lathi. Kishun Mahto assaulted Magister Singh with the pasa of tangi and
Narayan Mahto assaulted Harihar Mahto with lathi, Mahadeo Mahto was
assaulted by Baleshwar Mahto with pasa of tangi and Kartik Mahto
assaulted Mahadeo Mahto with lathi.
12. Similarly, injured people P.W.3, Magister Singh, P.W.4, Chandrika
Mahto, P.W.5, Harihar Mahto, P.W.6, Baldeo Mahto, P.W.7, Mahadeo
Mahto, all have stated that the occurrence took place at 7.30 A.M. in the
morning and after hearing hulla they went to the field, where they found
the accused persons were cutting the crops in their field and on their
objection, they assaulted them with lathi and other witnesses were also
assaulted by the pasa of tangi causing injuries to them.
13. Thus, it appears that the entire prosecution story, as given in the
fardbeyan, has been changed during the trial. There is no corroboration
of the entire prosecution story as given in the fardbeyan including the
time of occurrence and manner of occurrence during trial.
14. Moreover, during trial the defence has brought certain documents
that shows that in the given time and place Injuries were caused to the
appellants, but none of the witnesses have accepted that any injuries
were caused to the defence. The informant, P.W.9, in Para 35, has clearly
stated that he saw no injury on the person of any of the accused persons.
P.W.1, Bihari Mahto, in Para 29, has stated that he saw no injury on the
person of Babulal Mahto, Kishun Mahto, Narayan Mahto, Jagdish Mahto,
Kartik Mahto, Baleshwar Mahto and Ritlal Mahto. P.W.2, Iswar Mahto also
stated at Para 14 that had not seen any injury on the person of the
accused persons. Thus, all the prosecution witnesses had denied to have
seen any injury on the person of the accused appellants.
15. In that view of the matter, in my opinion, the change of time of
occurrence, the change of manner of occurrence and non-explanation of
the injuries on the person of the appellants/accused have made the entire
prosecution doubtful and all the appellants are entitled to get the benefit
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of doubts and hence all the appellants should be acquitted from the
charges leveled against them.
16. Accordingly, the judgment of conviction dated 02.01.2002 and
order of sentence dated 07.01.2002 passed by Shri Hari Shankar Prasad,
Sessions Judge, Giridih in Sessions Trial No. 196 of 1991 is hereby set
aside. This appeal is allowed and the appellants are acquitted from all the
charges leveled against them. Since, the appellants are on bail, they are
also discharged from the liabilities of their respective bail bonds.
[Pradeep Kumar, J.]
Jharkhand High Court, Ranchi
The 2nd April, 2009
R.K./NAFR