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Cr. Appeal No. 1170 of 2005
With
Cr. Appeal No. 1328 of 2005
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Against the judgment of conviction and order of sentence dated 29.08.2005 passed by
the learned 12th Additional Sessions Judge, Dhanbad in S.T. No. 332 of 1994.
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1. Anup Kumar Singh
2. Krishna Mohan Singh
3. Manas Mohan Singh @ Manas Singh
4. Pradeep Kumar Singh (Cr. Appeal 1170/05)
1. Babu Ram Mahato
2. Jyoti Lal Mahto
3. Nakul Mahto
4. Bhim Mahto (Cr. Appeal 1328/05) Appellants
Versus
The State of Jharkhand Respondents
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For the Appellants (1170/05): Mr. M.S. Chhabra and Mr. B.K. Sinha, Advocates
For the Appellants: (1328/05): Mr. Rajiv Ranjan, S.K Dubey and N.K. Ganju, Advocates
For the Respondents: A.P.P.
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PRESENT
HON'BLE MR. JUSTICE D.G.R. PATNAIK
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Reserved on: 04.02.2010 Pronounced on: 11.02.2010
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D.G.R. Patnaik, J: Both these appeals are disposed of together since they arise out of
the common impugned judgment of conviction and sentence dated 29.8.2005 passed by
the 12th Additional Sessions Judge, In S.T. No. 332 of 1994.
2. Heard Shri Rajiv Ranjan and Shri M.S. Chhabra , learned counsel for the
appellants and A.P.P. For the State.
3. Appellants have been convicted for the offences under sections 147, 148,
307/149 of the Indian penal Code and sentenced to undergo imprisonment for one year
under section 147 IPC, two years for offence under section 148 IPC and for seven years
for the offences under sections 307/149. In addition, they have been ordered to pay a fine
of Rs. 500/- each for the offences under sections 307/149 IPC.
4. The case against the appellants was registered on the basis of the
fardbeyan (Ext.3) of the informant Gopal Mahato (PW7) recorded by the A.S.I. of Police,
Mohuda Police Station at the sadar hospital, Dhanbad on 4.4.1993 at about 1.00 PM.
5. The prosecution case, as per the allegation in the FIR, is that in the
morning of 4.4.1993 in between 9.00 AM to 10.00 AM, the informant along with his
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brother Nakul Mahato, father Leda Mahato and co-villager namely, Raghu Modak were
removing grass and cleaning the ponds situated in his village. At about 10.00 AM, the
present appellants, who happen to be co-villagers of the informant and are named in the
FIR, came to the pond variously armed with tangi, sword, Bhujali, Bhala and revolver
and began abusing the informant party for entering into the pond. When the informant's
father Leda Mahato stepped out of the pond, protesting against the abuse, the accused
Jyoti Lal, Nakul Mahato and Bhim Mahato assaulted him with Katra, sword and Bhujali
causing injuries on the victim's head. The impact of the assault felled him on the ground
rendering him unconscious. When the informant and his brother wanted to escape, the
accused Babu Ram Mahato assaulted them with sword causing injuries on the informant's
head while accused Manas Singh assaulted him with Bhala. It is further alleged that the
accused Jyoti Lal, Nakul Mahato and Babu Mahato assaulted the informant's brother
Nakul Mahato on his head while the accused Pradeep Kumar Mahato also indulged in
assault on the injured with lathi. On alarms raised by the victims, several co-villagers
came running and upon seeing them, the assailants fled away from the place. The
informant claims that he and his father and brother had sustained injuries on their head,
back as well as on his arm.
6. The injured persons were thereafter removed to Mohuda Bazar to the
dispensary of Dr. P.N. Tiwary from where they were taken to Sadar Hospital, Dhanbad
for their medical treatment. The informant has claimed that the assault made by the
assailants was with intention to kill the victims.
Upon concluding the investigation and submission of charge sheet,
cognizance against the appellants was taken by the court below for the offences under
sections 147, 148, 149, 307, 323 and 324 IPC and they were put on trial on charges for
the aforesaid offences.
7. The appellants pleaded not guilty to the charges claiming that they have
been falsely implicated in this case and that it was the informant party which had not only
provoked the violence, but had also assaulted the appellants, inflicting multiple injuries
on them.
8. At the trial, altogether ten witnesses were examined by the prosecution
besides adducing relevant documents including the fardbeyan of the informant (PW7)
and the injuries reports of the injured Leda Mahato, Gopal Mahato and Nakul Mahato.
The appellants in their defence, have though not adduced any oral evidence, but have
proved the certified copy of the judgment passed in the Title Suit No. 26 of 1988 passed
by the Principal Subordinate Judge, Dhanbad and a copy of the judgment passed by the
High Court in F.A. No. 225 of 1995 (R) as well as the judgment passed by the Supreme
Court in the SLP (C) No. 1088 of 2003 as well as judgment passed by the trial court in
G.R. Case No. 1242 of 1993.
9. Amongst the witnesses examined by the prosecution, PW7 is the
informant, PWs 5 and 8 are the injured persons PWs 1 and 2 are the sons of Leda
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Mahato who along with PW3, have been projected by the prosecution as eyewitness of
the occurrence.
PWs 1 and 2 who are sons of the injured Leda Mahato, have though
claimed themselves to be the eyewitness of occurrence, but their evidence suggests that
they reached the place of occurrence upon hearing alarms and had come to know about
the occurrence after it was over. PWs 3 and 6 admit that they arrived at the place of
occurrence upon hearing alarms and had seen the informant, his brother and father in
injured condition.
PW10 is a formal witness. His evidence has been adduced to prove the
formal FIR while PW4 was tendered by the prosecution from cross-examination.
PW9 is a doctor who had proved the injury reports of the injured persons.
It is to be noted that the Investigating Officer of the case has not been
examined.
10. It is also relevant to note that in respect of the alleged occurrence of the
same day, a counter case was registered on the basis of the fardbeyan of one of the
present appellants, namely, Babu Ram Mahato, against the informant, his brother Nakul
Mahato, father Leda Mahato and five others, for the offences under sections 323,
147,148, 341, 348 and 129 IPC on the allegations that on 4.4.1993 at about 10.00 AM,
the informant Babu Ram Mahato learnt that his co-villager namely, Leda Mahato and his
sons were stealing fishes from the pond. Upon his objection, the accused persons
indulged in hurling abuses at him. In course of altercation which ensued, the accused
persons came out from the pond armed with lathi and iron rod and after surrounding the
informant, they assaulted him with lathi, iron and tangi inflicting multiple injuries on his
body. Upon the alarm raised by the victim, several co-villagers came running and they
too saw the occurrence.
11. It would also be relevant to note that the appellant Babu Ram Mahato has
claimed title over the pond and in support of such claim, he has adduced judgments
passed by the court of Subordinate Judge and affirmed by the High Court as well as by
the Supreme Court. In the present case, it appears that the informant and other witnesses
have admitted the fact that a counter case was instituted against him, his father and
brothers but adds that in the counter case, though the trial court had convicted them, but
their conviction was set aside in appeal. The informant had also admitted that the dispute
pertaining to the pond was pending between both the parties prior to the date of
occurrence.
12. Regarding the occurrence, the informant as well as his father Leda Mahato
(PW5) and brother Nakul Mahato (PW8) have reiterated the statement made by the
informant in his fardbeyan. The doctor (PW9) who had proved the injury reports of the
injured persons, had found as many as six injuries on the person of the informant's father
Leda Mahato. Out of the six injuries, five were found on the occipital and mid parietal
area. X-ray report revealed that the aforesaid injured had sustained skull injury in the
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right parietal area, fracture of right posterior aspect of the occipital area and fracture on
the neck of right scapula.
The injuries found by the doctor on the person of the informant Gopal
Mahato indicates two incised wounds in right parietal area, one laceration on back of the
left shoulder and swelling in the left hand. However, none of these injuries have been
confirmed by the doctor as grievous in nature.
As regards the injured Nakul Mahato, the doctor has found one laceration
on mid parietal area measuring 3"x1/2" bone deep. This injury was also not confirmed by
the doctor as grievous in nature. The doctor has however opined that the injury on all the
three injured persons who were examined by him in between 12.45 PM to 1.15 PM on
4.4.1993
, could have been caused within six hours prior to the time of examination.
13. In their defence, the accused persons had pleaded that the pond belongs to
them over which the informant party had no right whatsoever. Their title over the pond
has been confirmed and declared by the judgment passed by the Subordinate Judge which
has been confirmed even by the Supreme Court. The informant party have therefore no
right whatsoever over the pond and they had illegally entered into the pond and were
stealing fishes from the pond. The accused persons had therefore the right to object to
such illegal acts of the informant party and to protect their property. The further plea of
the accused persons was that it was the informant party who were the aggressors and who
had also inflicted multiple injuries on the person of one of the appellant namely, Babu
Ram Mahato.
14. The Trial Court after considering the evidences of the witnesses, and upon
hearing the rival submissions of the parties, recorded its findings that charge under
section 148, 148, 307 read with 149 IPC stands proved against the accused persons and
has convicted and sentenced them accordingly. While recording its findings, the Trial
Court had observed that though, there was a dispute between the parties over their
respective claims of title over the pond, but on the date of occurrence, the dispute was not
finally resolved by any court and therefore, the accused persons could not claim exclusive
possession over the pond. The Trial Court had also observed that the accused persons had
arrived at the pond variously armed with weapons and had inflicted multiple injuries on
the person of the informant, his father and brother causing grievous injuries particularly
upon the father of the informant and the situs of the injuries and the grievous nature of
the injuries inflicted upon one of the injured persons, do lead to the inference that the
intention behind the assault was to commit murder of the injured Leda Mahato and the
motive of the assailants was to eliminate Leda Mahato who was actively contesting the
civil suit.
15. The appellants have assailed the impugned judgment of their conviction
and sentence on the following grounds:
I. That, the findings as recorded by the Trial Court holding
the appellants guilty of the charges for the offences under
5sections 307/149 IPC, is totally misconceived and against
the weight of evidence on record.
II. The Trial Court has erred in failing to appreciate the fact
that for the same occurrence, a counter case was lodged
against the informant party in which the Trial Court had
convicted them for the several offences for which they
were put on trial.
III. The trial Court has erred in failing to consider that the title
of the appellants over the pond was declared by the court of
Subordinate Judge in the Title Suit, though the appeal filed
by the informant party against the judgment and decree,
was pending.
IV. The Trial Court has failed to appreciate that non-
examination of the Investigating Officer has caused grave
prejudice to the accused persons in their defence in as much
as, the contradictions elicited from the witnesses in their
respective depositions before the court, as compared to
their earlier statements made in course of investigation,
could not be brought on record.
V. The Trial Court has failed to appreciate that whereas,
according to the allegation, both in the FIR and in the
evidences of the informant, the injured Leda Mahato was
assaulted by the appellants with sharp cutting weapons, but
the doctor did not find any corresponding sharp cut injuries
on the person of Leda Mahato. Similarly, no injury
corresponding to injuries which could be inflicted by any
sharp edged weapon, was found on the person of the
injured Nakul Mahato.
VI. The Trial Court has erred in placing implicit reliance upon
the testimony of the interested witnesses who are closely
related to the informant party and have definite bias against
the present appellants. The Trial Court could not have
placed reliance upon the testimony of the interested
witnesses in absence of corroborative support from any
independent witness.
VII. In respect of the appellants Pradeep Kumar Singh, Anup
Kumar Singh, Krishna Mohan Singh and Manas Singhthe
Trial Court ought to have considered the fact that none of
the witnesses have alleged any overt act alleged against
them and that, even as per the evidence of the witnesses,
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the maximum inference which could be drawn, is that they
were present at the place of occurrence and had not
participated in any manner in the alleged assault on the
informant party.
VIII. The prosecution has not explained the injuries even on
the person of the appellant Babu Ram Mahato and this
aspect of the prosecution’s evidence ought to have been
considered by the Trial Court to infer that the prosecution
has not revealed the truth and has given a distorted version
of the occurrence.
16. From the facts of the case, admittedly, the genesis of the occurrence was
the entry of the informant party into the pond which they had made purportedly for the
purpose of cleaning the pond. The accused persons arrived at the pond and protested
against the entry of the informant party into the pond. Such protest led to altercation
which flared up to a free fight in which both the parties had indulged in assaulting each
other. Admittedly, the informant party was present at the place of occurrence prior to the
arrival of the accused persons. The nature of injuries sustained by the injured persons,
particularly injured Leda Mahato supported by the oral evidence of the injured, does
confirm that the accused persons who had arrived at the pond armed with weapons
including sharp cutting weapons had inflicted multiple injuries on them.
17. Undisputedly, in the free fight between both sides, injures were inflicted
on member of both sides. However, as it appears from the evidence on record, on the side
of the accused persons, only one of them namely, Babu Ram Mahato had sustained
injuries by sharp cutting weapons, though, simple in nature. The facts reveal that one of
the members of the informant party had sustained more serious injuries including fracture
injuries at the hands of the accused persons. The facts also adequately demonstrate that it
was the accused persons who arrived at the place of occurrence armed with weapons
determined to challenge the informant party and also to assault them with their weapons
in order to restrain them from entering into the pond. .
18. The evidences of the witnesses namely, the informant Gopal Mahato, his
father Leda Mahato and that of his brother Nakul Mahato, assume significance in view of
the fact that they are the injured persons who had sustained injuries in course of the
occurrence and they are certainly eyewitnesses to the occurrence. Merely because they
belong to the same family and appear to be interested witnesses, does not render their
evidence as unreliable or not trustworthy, nor would their evidence require support from
independent sources unless their evidence suffer from major contradictions with each
other affecting the prosecution’s case on material aspects.
19. As has been observed by the Trial Court, though there was subsisting
dispute between the parties in respect of their rivals claims of title over the pond, but on
the date of occurrence, no final decision on the pending dispute was declared by the Civil
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Court. As rightly observed by the Trial Court, till the dispute was resolved and their right,
title and interest was declared by the competent court, the accused persons could not
possibly raise the claim of right of private defence of property and take the liberty of
confronting the informant party by use of weapons. Even if they had a bonafide claim of
title over the pond and even If they were aggrieved by the acts of the informant party, the
proper course of action for the accused persons was to take recourse in the pending legal
proceedings or to seek police protection. The conduct of the accused persons, as reflected
from the facts of the case, do demonstrate that they were the aggressors and the assault on
the members of the informant party was made in furtherance of a common intention of
causing injuries to them particularly to the informant’s father Leda Mahato. Such
intention of the accused persons amply indicated by the injuries jointly inflicted upon the
informant’s father Leda Mahato and the nature of injuries caused to him.
20. However, it has to be seen as to whether, the acts indulged by the accused
persons, as appearing from the evidence of the informant and the two other injured
witnesses, do suggest that the intention behind the assault was to commit murder of the
informant’s father Leda Mahato.
21. The Trial Court appears to have drawn inference of such intention only on
the ground that multiple injuries were inflicted upon the head of the injured Leda Mahato
and some of which were found to be grievous in nature. While recording its findings on
such inference, the Trial Court appears to have ignored the fact that though the accused
persons were alleged to have been armed with lethal weapons including sharp cutting
weapons and firearms, yet the injuries founds on the person of Leda Mahato by the
doctor, do not confirm that any sharp cutting weapon or firearm was used to inflict the
injuries upon him. All the injuries were lacerations which did not correspond to any
injury which could have been caused by any heavy sharp cutting weapons of the nature
which the accused persons were alleged to have been armed with. Furthermore, though
the doctor who had examined the injuries on the injured Leda Mahato has opined that the
injuries were in the nature of fracture of the skull bone, but he has expressed no such
opinion to suggest that the injuries were sufficient in the ordinary course of nature to
cause death or was likely to cause death of the injured. These aspects of the conduct of
the accused persons assumes significance and is sufficient to indicate that the intention
behind the assault was only to cause injuries to the victim, but not with intention to kill
him or with knowledge that the injuries were likely to cause death of the victim. In
absence of any interference even from the informant and his brother, who admittedly did
not attempt to rescue their father, there was nothing to prevent the assailants to do away
with the life of the informant’s father by use of heavy sharp cutting weapons and
firearms with which they were allegedly armed. Yet, they did not do so.
These aspects which emanate from the evidence on record, militate against
the findings of the Trial Court which holds the accused persons guilty for the charges
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under sections 307/149 IPC. The offence which, under the circumstances, could at best
have been inferred, is under section 325 IPC and not under section 307 IPC.
22. Even while recording the findings that the offence made out against the
accused persons is at best under sections 325 IPC, yet it has to be assessed by reference to
the evidence of the injured witnesses in particular, as to which of the accused persons
should be held liable for the offence.
23. From the testimony of the informant and the two other injured persons,
read with the testimony of the other witnesses, it appears that there is consistent evidence
only against the accused Jyoti Lal Mahato, Bhim Mahato, Babu Ram Mahato and Nakul
Mahato alleging that they had assaulted the informant’s father. While allegation against
the accused Krishna Mohan Singh is that he arrived at the place of occurrence with
revolver and that he and the accused Anup Kumar Singh had exhorted the others to
assault the informant party, but there is no consistent evidence of the alleged exhortation.
It is also significant to note that though, the evidence of the injured witnesses and that of
the other witnesses including PWs 1 and 2 suggest presence of the accused Pradeep
Kumar Singh at the place of occurrence allegedly armed with lathi, but there is no
allegation against him that he had in any manner, participated in the assault upon any of
the members of the informant party. In absence of any overt act alleged against them,
these accused persons can not be charged of sharing any common object or intention with
the other accused persons for inflicting injuries upon the injured Leda Mahato or upon
the informant or his brother. Thus, none of the charges is proved against these accused
persons and hence, their conviction and sentence for the various offences for which they
were charged , cannot be sustained.
24. It is true that the Investigating Officer has not been examined but the
appellants have not demonstrated as to how and in what manner, have they suffered any
prejudice on account of non-examination of the Investigating Officer. The evidence of
the injured witnesses read together with the evidence of the other witnesses, do not
indicate any serious contradiction on any material aspect of the prosecution’s case, nor
has the defence elicited any such serious contradiction in the statement of the witnesses
recorded in course of investigation vis-a-vis their evidence adduced before the court in
course of trial. There is no dispute regarding the identity of place of occurrence. Though,
it does appear that neither the informant nor any of the two injured persons have
explained the injury on the person of the accused / appellant Babu Ram Mahato, but this
in itself, does not render their testimony to be false and / or misleading. The injury found
on the person of the accused Babu Ram Mahato was admitedly simple in nature and the
inference which may legitimately be drawn from the admission of facts, is that the simple
injury on Babu Ram Mahato could have been caused in course of scuffle between both
the parties.
25. In the light of the above discussions, I find that the evidence is not
sufficient enough to prove the charges against the accused Anup Kumar Singh, Krishna
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Mohan Singh, Manas Mohan Singh @ Manas Singh and Pradeep Kumar Singh for any of
the offences. As such, their conviction and sentence, as recorded by the Trial Court for
the offences under section 147, 148, 307/149 IPC is hereby set aside. They are acquitted
from the charges and they are absolved from the liability of their respective bail bonds.
Cr. Appeal No. 1170 of 2005 is accordingly allowed.
26. As regards the appellants in Cr. Appeal No. 1328 of 2005, after acquittal
of the four accused persons who are the appellants in Cr. Appeal No. 1170 of 2005,
conviction of appellants of Cr. Appeal No. 1328 of 2005 namely, Babu Ram Mahato,
Jyoti Lal Mahto, Nakul Mahto and Bhim Mahato, cannot be sustained for the offences
under sections 147 and 148 IPC. Their conviction and sentence for the offences under
sections 147 and 148 IPC is hereby set aside. Since the charge under section 307 IPC is
also not made out against them, their conviction and sentence for the offence under
sections 307/149 is hereby set aside. They are convicted instead for the offence under
sections 325/34 IPC. However, considering the facts and circumstances of the case, and
also the fact that it being the first offence of these appellants, instead of imposing any
sentence upon them, they are directed to be released on probation on their furnishing
bond of Rs. 3,000/- each with two sureties of the like amount each, to the satisfaction of
the Trial Court, for maintaining peace and good behaviour for a period of one year from
the date of execution of bonds.
27. The appellants must appear before the court below within 15 days from
the date of this order and execute their respective bonds.
With the above modification, Cr. Appeal No. 1328 of 2005 is partly
allowed.
(D.G.R. Patnaik, J)
Jharkhand High Court, Ranchi
Dated the 11th February 2010
Ranjeet/A.F.R.