{"id":12967,"date":"2010-02-09T00:00:00","date_gmt":"2010-02-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kanchan-mahato-vs-state-on-9-february-2010"},"modified":"2016-12-28T10:58:08","modified_gmt":"2016-12-28T05:28:08","slug":"kanchan-mahato-vs-state-on-9-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kanchan-mahato-vs-state-on-9-february-2010","title":{"rendered":"Kanchan Mahato vs State on 9 February, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Jharkhand High Court<\/div>\n<div class=\"doc_title\">Kanchan Mahato vs State on 9 February, 2010<\/div>\n<pre>                                                1\n\n                     CRIMINAL APPEAL (SJ) No. 158 of 2000\n\n     Against the impugned judgment of conviction dated 28.03.2000 and order of sentence dated\n     31.03.2000 respectively passed in S.T. No. 230 of 1992 by Shri Prabodh Ranjan Das,\n     3rd , Additional Sessions Judge, Deoghar..\n                                                ----\n        Kanchan Mahato                                               ....        ....      Appellant\n                               Versus\n  1. The State of Bihar (Now Jharkhand)\n  2. Ramu Mahto                                                 ....        ....        Respondents\n                                             ---------\n     For the Appellant                    :      Mr. Aparesh Kumar Singh, Advocate.\n     For the Respondent (State)           :      Mr. I. N. Gupta, A.P.P.\n                                            ----------\n                                          PRESENT\n\n                 THE HON'BLE MR JUSTICE PRADEEP KUMAR\n                                         ----\nBy Court:   Heard the learned counsel for the appellant and the learned counsel for the<\/pre>\n<p>            state.\n<\/p>\n<p>            2.       The instant appeal is directed against the judgment of conviction dated<br \/>\n            28.03.2000 and order of sentence dated 31.03.2000 respectively passed in<br \/>\n            S.T. No. 230 of 1992 by Prabodh Ranjan Das, 3rd , Additional Sessions Judge,<br \/>\n            Deoghar, by which judgment he found the appellant guilty under Section 326 of<br \/>\n            the I.P.C. and sentenced him to undergo R.I for seven years and also a fine of Rs.<br \/>\n            1000\/-, in default of making payment of fine, he shall suffer two month simple<br \/>\n            imprisonment, he also found guilty under Section 448 of the I. P. C. and<br \/>\n            sentenced him to undergo R.I. for one year and further found guilty under Section<br \/>\n            27 of the Arms Act and sentenced him to undergo R.I. for five years and also a<br \/>\n            fine of Rs. 1000\/-, in default of making payment of fine, he shall suffer for two<br \/>\n            months, all the sentences have been directed to run concurrently..\n<\/p>\n<p>            3.       It is submitted by learned counsel for the appellant that only the injured<br \/>\n            P.W.9, Geeta Devi and the informant P.W.6 Ramu Mahto supported the<br \/>\n            prosecution case. The firing was done by this accused causing injury on the leg of<br \/>\n            the victim Geeta Devi, but in the instant case neither the material exhibit &#8211; bullet<br \/>\n            recovered from leg was produced nor the I.O. was examined and admittedly Saya<br \/>\n            and Sari which was ablaze in the firearm neither seized nor produced in the<br \/>\n            Court. In that view of the matter, the prosecution case is doubtful and the learned<br \/>\n            trial Court has wrongly convicted the appellant.\n<\/p>\n<p>            4.       On the other hand learned counsel for the state has opposed the prayer and<br \/>\n            submitted that the prosecution evidences have fully proved the case beyond all<br \/>\n            reasonable doubts and hence the conviction of the appellant does not require any<br \/>\n            interference by this court.\n<\/p>\n<p><span class=\"hidden_text\">                                  2<\/span><\/p>\n<p>4.    After hearing both the parties and going through the records, I find that the<br \/>\nprosecution case was started on the basis of fardbayan recorded on 24.07.1992 at<br \/>\n10.30 P.M., wherein the informant P.W. 6, Ramu Mahto stated that                on<br \/>\n24.07.1992 at about 7.30P.M., petitioner-accused Kanchan Mahto, Bhim Mahto,<br \/>\nBharat Mahto and Balram Mahto entered his house. The house was opened and<br \/>\nhis wife was sitting inside the house near the door of a room situated at southern<br \/>\nside of the house. He was sitting inside the room and his son Pintu, who was<br \/>\nabout six years, was studying there. Kanchan Mahto was carrying a pistol in his<br \/>\nhand and rest accused persons were carrying lathis. They trespassed inside the<br \/>\nhouse and Kanchan Mahto asked about the informant from his wife in filthy<br \/>\nlanguages and told her that today your husband will be murdered by firearm.<br \/>\nWhen accused persons could not see the informant, Kanchan Mahto told that<br \/>\nyour husband is not present here then you will be killed by me and he fired from<br \/>\npistol upon his wife with intention to commit her murder. Thereafter, he fired<br \/>\nupon her causing injury on the right knee. Thereafter, the accused persons fled<br \/>\naway towards north of the house then he made hulla whereupon, other witness<br \/>\nnamely Chatur Khano and Bhikho Khano came from Mathurapur Station and he<br \/>\ntold about the occurrence to them. It is also alleged that the accused were<br \/>\nannoyed because the informant was a witness in a murder case, which is pending<br \/>\nin the Court.\n<\/p>\n<p>5.    On the basis of the said fardbeyan, police registered a case under Sections<br \/>\n448, 307\/34 of the Indian Penal Code and 27 of the Arms Act against the<br \/>\naccused persons and after investigation, police submitted charge-sheet in the case<br \/>\nagainst four accused persons under the aforesaid Sections. Since, the case was<br \/>\nexclusively triable by the court of Sessions, after taking cognizance learned Chief<br \/>\nJudicial Magistrate committed the case to the court of Sessions and subsequently,<br \/>\nthe case was tried by learned 3rd Additional Sessions Judge, Deoghar, who found<br \/>\nthe appellant guilty under Sections 448, 326 of the Indian Penal Code and 27 of<br \/>\nthe Arms Act and sentenced him as aforesaid and acquitted other accused<br \/>\npersons.\n<\/p>\n<p>7.    It appears that in the course of the trial, the prosecution has examined as<br \/>\nmany as ten witnesses.\n<\/p>\n<p>P.W.1, Mahadeo Modi has turned hostile.\n<\/p>\n<p>P.W.2, Nepal Prasad Verma is hearsay witness.\n<\/p>\n<p>P.W.3, Suchit Prasad Yadav is hearsay witness.\n<\/p>\n<p>P.W.4, Prem Kumar Mahato<br \/>\nP.W.5, Subhash Prasad Burnwal is hearsay witness.\n<\/p>\n<p><span class=\"hidden_text\">                                   3<\/span><\/p>\n<p>P.W.6, Ramu Mahto, the informant of the case.\n<\/p>\n<p>P.W.7, Ram Sharan yadav has proved the fardbeyan.\n<\/p>\n<p>P.W.8, Chatur Rawani is hearsay witness.\n<\/p>\n<p>P.W.9, Geeta Devi, victim lady and wife of the informant.<br \/>\nP.W.10, Dr. P. Chandra.\n<\/p>\n<p>      P.W.2, Nepal Prasad Verma, P.W.3, Suchit Prasad Yadav, P.W.5, Subhash<br \/>\nPrasad Burnwal and P.W.8, Chatur Rawani are hearsay witness and they had<br \/>\ncome after the occurrence and stated that they had seen injured, wife of the<br \/>\ninformant, Ramu Mahto, who had injury on her right leg.\n<\/p>\n<p>       P.W. 6 Ramu Mahto and P.W. 9 Geeta Devi two witnesses in the place of<br \/>\noccurrence, who identified all the accused. Investigating Officer of the case has<br \/>\nnot been examined and the F.I.R. has been proved by formal witness, P.W.7,<br \/>\nRam SharanYadav. Dr. S. K. Bajpayee, who examined the injured, has died and<br \/>\nas such he has not been examined.\n<\/p>\n<p>      P.W.9, Geeta Devi, victim lady and wife of the informant, stated in the<br \/>\nCourt that on the date of occurrence about at 7.30 P.M. in the evening she was<br \/>\nsitting in her house, a Dibri was burning. When the accused persons namely<br \/>\nKanchan Mahto along with Bhim Mahto, Bharat Mahto and Balram Mahto<br \/>\nentered her house, Kanchan Mahto abused her and asked her that where is your<br \/>\nhusband and further said that you are fighting case. When she did not disclose the<br \/>\nwhereabouts of her husband, Kanchan Mahato fired from his pistol upon her, due<br \/>\nto which she sustained injury on her right knee (she shown the mark of operation<br \/>\non her right knee). When accused persons fled away, she made hulla thereafter,<br \/>\nwitnesses came from Midnapur Station then she told about the occurrence to<br \/>\nthem. She also said that treatment was done in the Sadar Hospital, Deoghar and<br \/>\nin course of the treatment the bullet was operated out from her knee. She<br \/>\nidentified the accused in the Court. In paragraph-7 of cross- examination, she<br \/>\nstated that where she was sitting there is no door or chokat in the house. Dibri<br \/>\nwas on the floor and her leg was covered by saya and sari. In paragraph-8, she<br \/>\nstated that Kanchan Mahato asked about her husband then she told that her<br \/>\nhusband is not present in the house. Kanchan Mahato was standing at a distance<br \/>\nof about 2 to 3 cubics and from there he fired from his pistol upon her, due to<br \/>\nwhich she sustained injury on her right knee and hole was caused in saya and sari<br \/>\nand that a part of sari was burnt. She also told that her husband entered inside the<br \/>\nhouse hearing the sound of accused persons. She denied that her husband was<br \/>\npracticing to fire from pistol and during the course of that she received injury and<br \/>\nwrongly implicated the accused persons due to enmity.\n<\/p>\n<p><span class=\"hidden_text\">                                   4<\/span><\/p>\n<p>      P.W. 6, Ramu Mahto, informant, stated in the Court that on 24.07.1992 at<br \/>\nabout 7.30P.M., he was in the house and his wife was sitting in the varandah .<br \/>\nKanchan Mahto, Bhim Mahto, Bharat Mahto and Balram Mahto entered his<br \/>\nhouse, the house was opened. Kanchan Mahto abused his wife and asked her<br \/>\nwhere is your husband and told her that today your husband will be murdered by<br \/>\nfirearm. He further asked about the informant from his wife in filthy languages<br \/>\nthat where is your husband if you will not tell about him then I will kill you by<br \/>\nfirearm thereafter, he fired from pistol upon his wife with intention to commit<br \/>\nmurder, caused injury on her right knee. After the firing he and his son made<br \/>\nhulla whereupon they fled away. Where firing was done, only four houses are<br \/>\nthere and one of the house is of informant P.W.4. and other two houses belong<br \/>\nto the accused persons. On their hulla, some persons and home guard personnel<br \/>\narrived on the place of occurrence. They saw his wife with injured condition.<br \/>\nThereafter, he and his wife told about the occurrence to them. He also stated that<br \/>\nhis brother Kamdeo Mahato murder three years back by the accused persons due<br \/>\nto land dispute. After the occurrence, they went &#8216;fadhi&#8217;       where    homeguard<br \/>\ndirected to go to the police station then he and his wife went to the police station<br \/>\njashidih and his wife sent to the hospital and a case was lodged. He further stated<br \/>\nthat the cartridge was extracted by Dr. P. Chandra. In paragraph-6 in his cross-<br \/>\nexamination he stated that his wife was sitting near the door of east room, there<br \/>\nwas no chokath and Kiwadhi and he was inside the room and his son pintu,who<br \/>\nwas six year old, was studing there. The distance between the varandah and door<br \/>\nof the east room is almost 3 hands. He further stated that when he saw the<br \/>\naccused to trespass inside the house he entered in the room. Dibri was burning in<br \/>\nvarandah. In paragraph-9 he stated that he shown the saya &amp; sari to the<br \/>\nInvestigating Officer, but the same were not seized by the Investigating Officer.\n<\/p>\n<p>7.    Thus, it appears from the evidence of two witnesses, it has been proved<br \/>\nthat the firing was done due to which P.W.9 Geeta Devi received injury on her<br \/>\nright leg, but it is difficult to come to a conclusive finding that the firing was<br \/>\ndone by Kanchan Mahato which improbably caused injury to the appellant.<br \/>\nLearned counsel for the appellant submitted that it is not probable that while the<br \/>\naccused persons came to commit the informant&#8217;s murder and he actually fired<br \/>\nupon his wife and her husband was present just three hands inside the room and<br \/>\nhe will not come out and try to save her. He further stated that it is also not<br \/>\nprobable that the accused-appellant along with three others entered inside the<br \/>\nhouse will only enquire from his wife. There was no door in the other room and<br \/>\nlantern was burning and it is highly improbable that they will not enter the room<br \/>\n<span class=\"hidden_text\">                                                  5<\/span><\/p>\n<p>               and search for the informant in that room. More so, distance was only three<br \/>\n               hands. It is also not probable that when the lantern was burning in a small room<br \/>\n               and there is no door in the room, the accused could not have seen the informant<br \/>\n               present in the room. He has also stated that due to old enmity, which is apparent<br \/>\n               from the F.I.R. and evidence also, that there is a chance that the injured P.W.9<br \/>\n               Geeta Devi received injury somewhere else for whom they have falsely<br \/>\n               implicated the appellant. It is also important to note that although, the injured<br \/>\n               P.W.9 Geeta Devi has admitted that due to firearm there was hole in Saya and<br \/>\n               Sari and Sari was burnt, but neither Sari nor Saya was produced in the Court.<br \/>\n               P.W.9 also stated that the cartridge was extracted by Dr. P. Chandra, but the<br \/>\n               same was neither given to the police nor produced in the Court. The accused were<br \/>\n               arrested from his house after two days, but no pistol was found in his possession<br \/>\n               or in his house nor the same has been produced in the Court.\n<\/p>\n<p>                     In that view of the matter, seeing the improbability and absence of the<br \/>\n               material evidences, it is difficult to come to a conclusive finding that the firearm<br \/>\n               was done by the appellant accused Kanchan Mahato. In that view of the matter,<br \/>\n               he is being given benefit of doubt and acquitted from the charges.\n<\/p>\n<p>               9.    Accordingly, this appeal is allowed and order of conviction dated<br \/>\n               28.03.2000 and sentence dated 31.03.2000 respectively passed in S.T. No. 230 of<br \/>\n               1992 by Sri Prabodh Ranjan Das, 3rd, Additional Sessions Judge, Deoghar is set<br \/>\n               aside. Since, the appellant is on bail, he is released from the bondage of bail.\n<\/p>\n<p>                                                                            [Pradeep Kumar, J]<br \/>\nJharkhand High Court, Ranchi<br \/>\n9th February, 2010<br \/>\nKamlesh\/NAFR\n <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jharkhand High Court Kanchan Mahato vs State on 9 February, 2010 1 CRIMINAL APPEAL (SJ) No. 158 of 2000 Against the impugned judgment of conviction dated 28.03.2000 and order of sentence dated 31.03.2000 respectively passed in S.T. No. 230 of 1992 by Shri Prabodh Ranjan Das, 3rd , Additional Sessions Judge, Deoghar.. &#8212;- Kanchan Mahato [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-12967","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Kanchan Mahato vs State on 9 February, 2010 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kanchan-mahato-vs-state-on-9-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kanchan Mahato vs State on 9 February, 2010 - Free Judgements of Supreme Court &amp; 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