Surender Mahtha & Ors. vs State Of Jharkhand on 14 September, 2011

Jharkhand High Court
Surender Mahtha & Ors. vs State Of Jharkhand on 14 September, 2011
                  Cr. Appeal No. 686 of 2002
Against the judgment of conviction and order of sentence dated
21.09.2002 passed by the Learned Additional Sessions Judge, Fast
Track Court No. - 4, Bokaro in Sessions Trial No. 82 of 1993 / T.R. No.
92 of 2002.

1.   Surender Mahtha
2.   Birender Mahtha
3.   Dhirender Mahtha
4.   Narender Mahtha
5.   Harender Mahtha                                       Appellants
The State of Jharkhand                                    Respondent
For the Appellants: Mr. R.N. Sahay, Advocate
For the State:      Mr. D.K. Prasad, APP

            The Hon'ble Mr. Justice R.K. Merathia
                                           Dated 14h September 2011

By Court:   This appeal arises out of the judgment dated 21.09.2002

passed by the learned Additional Sessions Judge, Fast Track Court
No.-4, Bokaro in Sessions Trial No. 82 of 1993 / T.R. No. 92 of 2002
convicting the appellants under section 148/324/307/149 IPC and
sentencing them to undergo S.I. for one year each under sections 148
and 324 IPC and three years under section 307 IPC. However, all the
sentences were directed to run concurrently.

2. The prosecution case in brief is that the informant-Biranchi
Mahtha (PW 6) lodged a farbdeyan stating that his family members
and the family members of the accused persons are descendants of
the common ancestor and there was a dispute between the female
members of both the families over fetching of water from the river
bed in the previous evening. When the informant learnt about the
quarrel between the female members, he along with his brother went
to Mukhia and informed him about the quarrel in writing. The Mukhia
assured them to come to the village for inquiry. The informant and his
brother returned back to their house and warned the female members
of their family not to quarrel with the female members of the accused
persons. In the next morning at about 6.00 AM, the informant and his
brothers Sharad Mahtha (PW 1) and Kalipado Mahtha called the
accused persons and asked them about the dispute between the lady
members of both the families, on which the accused persons namely
Surender Mahtha went inside his house and came with a Farsa and
inflicted Farsa blow on Kalipado Mahtha causing bleeding injury on
his head. The informant and his brother Sharad Mahtha tried to
rescue his brother Kalipado Mahtha, but in the meantime, the
accused Narender Mahtha, Birender Mahtha, Harender Mahtha and
Dhirender Mahtha came with Tangi, Rod and Lathi. Narender
inflicted Tangi blow on the head of the informant causing bleeding
injury. Accused Birender inflicted Tangi blow on the head of Sarad
Mahtha causing fracture injury in his right hand when he tried to
save himself. He also fell down on the ground. Harender and
Dhirender inflicted Lathi blow on all the three brothers causing
several injuries to the informant and his brothers. The occurrence
took place just near the door of the house of the informant. The
witnesses rushed to the spot after hearing alarm raised by the
informant and his brothers. The injured were taken for treatment at
State Dispensary where fardbeyan was recorded.

3. Mr. R.N. Sahay, learned counsel appearing for the appellants,
submitted that there was a case and counter-case for the self same
occurrence; and that the parties are relatives; and that there was no
intention to cause murder; and that the incident took place due to
quarrel between the female members of both the family and during
hot exchange of words between the parties, though he is not seriously
disputing the occurrence. He further submitted that the incident took
place due to sudden provocation and therefore, the accused persons
could at best be convicted under sections 334 and 335 IPC. He also
relied on AIR 1988 Supreme Court 569 [Patori Devi & another
vs. Amar Nath & others with State of Haryana vs. Amar Nath &
others and Jai Narain & others
]. He lastly submitted that the
appellants reached at the advance age by now and therefore, it would
not be proper to send them back to jail to serve out the balance
sentence. He also submitted that though, appellants have remained in
jail for about sixteen days only, but they have suffered the
prosecution since 1988.

4. On the other hand, Mr. D.K. Prasad, learned counsel appearing
for the State, supported the impugned judgment and submitted that
Biranchi Mahtha-informant (PW6) sustained lacerated injury on his
skull, though it was found to be simple in nature by doctor; and that
Shard Mahtha suffered grievous fracture injury on his hand, Kalipado
Mahtha suffered grievous injury on his skull caused by sharp cutting
weapon which was dangerous for life, even as per the opinion of the

5. After hearing the parties and after going through the records
carefully, it appears that the occurrence took place due to quarrel
between the female members of the parties. The parties are relatives
and are neighbours. I am not satisfied that the ingredients of section
307 IPC are made out against the appellants. All the three injured
suffered single injury each and that too during hot exchange of words
between the parties.

The injuries, if any, suffered by the informant party, has not
been brought on record, though it appears that there is case and
counter case between the parties.

6. The appellants were required to show that sections 334 and 335
IPC are attracted, but there is nothing to show that there was sudden
and grave provocation by the injured persons. In the circumstances,
the conviction under section 307 IPC is set aside and conviction
under sections 148/149/324 IPC is sustained. However, I am of the
opinion that no useful purpose will be served by sending back the
appellants to jail for serving out the balance period of sentence.
Parties have suffered this litigation since 1988. They are relatives and
neigbours. The occurrence took place due to quarrel between their
family members. The appellant-Surender Mahtha may be around 70
years, Birender Mahtha may be around 55 years, Dhirender Mahtha
may be around 60 years, Narender Mahtha may be around 75 years
and Harender Mahtha may be around 80 years by now. The ends of
justice would be met by imposing fine in lieu of imprisonment

7. Accordingly, the sentence is modified to the period already
undergone by the appellants in jail. They are also directed to deposit
fine of Rs. 4,000/- each within six weeks in the trial court. If one or
other appellants fail to deposit the fine amount, he will undergo
simple imprisonment for a period of three months. However, if the
fine amount is deposited by one or other appellants, the learned trial
court will discharge him from the bail bonds and will issue notice to
the informant / his family members, who will be at liberty to withdraw
the fine amount.

8. With this modification in the conviction and sentence, this
appeal stands partly allowed.

(R.K. Merathia, J)
Jharkhand High Court, Ranchi
Dated 14th September 2011

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