Partly allowed

Chhatish Mahto And Ors. v. State of Jharkhand

Jharkhand HC2 Aug 2016Cr.A(SJ)/629/2003

Case brief

AI extract

What is this about?

High Court partly allowed criminal appeal challenging conviction under IPC Sections 147, 323, 148, and 324. Acquitted five appellants due to lack of independent witnesses and seized evidence; upheld conviction against appellant Paresh Mahto as evidence was consistent.

What did the court decide?

Five appellants acquitted; appellant Paresh Mahto conviction upheld and directed to execute bond; probation order restored.

Chhatish Mahto And Ors. Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2016)

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Criminal Appeal (S.J.)No. 629 of 2003

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(Against the judgment of conviction and order of sentence dated 07/04/2003 passed by 1^st Additional Sessions Judge- Deoghar in connection with Sessions Case no. 29 of 1992 corresponding to G.R. Case no. 858 of 87

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144 of 2001 Sarath (Chitra) P.S. Case no. 92 of 1987.

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Chhatish Mahto S/o Beghun Mahto @ Hari Mahto

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Moti Poddar S/o Jhagru Poddar

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Dashrath Mahto S/o Lallu Mahto

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Sachin Mahto S/o Beghu Mahto @ Hari Mahto

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Paresh Mahto S/o Chamu Mahto

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Urmila Devi @ Urua D/o Beghu Mahto ........ Appellants

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Vs.

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The State of Jharkhand ......... Respondent

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----------- PRESENT: HON'BLE MR. JUSTICE RATNAKER BHENGRA ---------For the appellants :Mr. Ashish Kumar, Advocate For the respondent :Mr. Tapas Roy, A.P.P.

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(Ratnaker Bhengra,J.)

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This Criminal Appeal has been preferred against the judgment

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of conviction and order of sentence dated 07/04/2003 passed by 1^st Additional Sessions Judge- Deoghar in connection with Sessions Case no.

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29 of 1992 corresponding to G.R. Case no. 858 of 87 Sarath (Chitra) P.S. Case 144 of 2001 no. 92 of 1987,whereby all the appellants except Paresh Mahato have been held guilty for the offence punishable under sections 147 and 323 I.P.C. and accused Paresh Mahato has been convicted u/s 324 and 148 of the Indian Penal Code and they have been directed to execute a bond of Rs. 2000/- with two sureties of the like amount each for a period of two years.

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2. The case of prosecution, as per written report of Janam Mahato is that on 21.11.1987 at 7 a.m. in the morning he was standing in front of his house and his younger brother Shankar Mahato was standing at the door and washing his face. Just then Paresh Mahato , Sachin Mahato, Chhatish Mahato, Dashrath Mahato, Darba Mahtowain and Moti Poddar and Jhagru Poddar came together with

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sword and iron rod etc. and they surrounded his younger brother Shankar Mahto and Paresh Mahto with sword, Sachin Mahato with lathi and Dashrath Mahto with iron rod started assaulting Shankar Mahato. Further it has been stated that Moti Poddar was exhorting that he was the person responsible for quarrel and he must be done to death. On seeing the situation the informant started raising alarm then his mother Huro Mahatowain, brother Mohan Mahato and Paresh Mahato came there running to save him. Further on the alarm the co-villager Badri Mahato, Dhano Mahato, Magar Mahato, Jagdeo Mahato, Kashi Mahato, Shukdeo Mahato, Munna Rajwar came there running. By then, Sachin Mahato broke the head of Mohan Mahato with stick which resulted in bleeding injury and Paresh Mahato assaulted with sword on both the legs and head of Shankar Mahato due to which he sustained bleeding injury. Dashrath Mahto assaulted with iron rod on his right hand and left hand and also on his ribs. As a result of which he fell down and became senseless. Further Moti Poddar assaulted his brother Paresh Mahato with iron rod on his head, as a result of which he sustained bleeding injury. In the meantime, his mother in order to save his brother laid down on his body, then Chhatish Mahato and Uruwa Mahatowain also assaulted her by means of fists and slaps. As a result of which his mother sustained injury on her shoulder and on her right hand. The reason behind the incident is stated that a case is going on in between the parties and a proceeding u/s 107 Cr.P.C. was also instituted.

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3. On the basis of fard-beyan of informant , Sarath (Chitra) P.S. Case no. 92 of 1987 dated 22.11.1987 under Section 147,148,149,324,323 IPC was registered against the appellants, corresponding to G.R. Case no. 858 of 1987.

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After due investigation, charge sheet was submitted and, accordingly, cognizance was taken and case was committed to the Court of Sessions and registered as Sessions Case no. 29 of 1992 .

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144 of 2001

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4. The appellants stood charged accordingly to which they pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether seven witnesses. The learned trial court after conducting

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trial held the appellants namely Sachin Mahato, Chhatish Mahato , Urmila Devi, Dashrath and Moti Poddar guilty u/s 147 and 323 IPC and Paresh Mahato u/s 148 IPC and 324 IPC and sought them fit to be released u/s 4 of the Probation of Offender Act. Accordingly, learned trial court has directed the accused persons to execute a bond of Rs. 2000/- with two sureties of the like amount each for the period of two years.

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5 . PW-2 Shankar Mahato has stated that at 7 a.m. he was washing his face at his door when all the appellants came there. Paresh Mahto was armed with sword, Moti Poddar with iron rod, Dashrath Mahato with iron rod and Sachin Mahato with stick. Paresh Mahto inflicted sword blow on his head. Dashrath Mahato inflicted iron rod blow on his back and Sachin Mahato assaulted on his back by means of stick. Chhatish Mahto assaulted him by means of rod.

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6. PW-4 Jaideo Mahato he has deposed that occurrence took place at 7 a.m. and at that time he was present in his house when he heard the alarm of Janam Mahato. He noticed the accused persons were there. Paresh Mahato inflicted sword blow injury on the head of Shankar Mahato as a result of which he sustained bleeding injury. Further Paresh Mahato inflicted a sword blow on the left leg of Shankar Mahato. Dashrath Mahato assaulted Shankar Mahato with iron rod. Further Moti Poddar exhorted that he be killed. Further Mohan Mahato was assaulted by Sachin Mahato on his head. In para 10 of his cross-examination he has deposed that Paresh Mahato had inflicted sword blow injury. 7. PW-5 is Janam Mahato, the informant. He has submitted that at 7 a.m. in the morning his brother Shankar Mahato was washing his face on the door of the house when Paresh Mahto, Dashrath Mahto, Chhatish Mahto, Sachin Mahato, Moti Poddar, Uruwa Mahatowain and Shankar Mahato surrounded his brother . He has further deposed that Paresh Mahato was armed with sword, Dashrath Mahato was armed with iron rod, Sachin Mahato with stick, Chhatish Mahato was also armed with stick and Moti Poddar was armed with iron rod and Moti Poddar ordered that he be killed. Paresh Mahato inflicted sword blow injury on the head of Shankar Mahato and also assaulted him below the knee of his leg.

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Dashrath Mahato assaulted Shankar Mahato with rod on his body and ribs. Sachin Mahato assaulted Mohan Mahato with bamboo stick. His mother came there and she was assaulted by Chhatish Mahato. His brother Paresh Mahato was assaulted by Moti Poddar. He has proved the written report which is marked as Ext.1.

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PW-7 Upendra Yadav has proved the injury report which is marked as Ext. 2 to 2/3.

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8. Learned counsel for the appellants has submitted that all the independent witnesses have not been examined and he said that they have been named in the fard-beyan itself and they are Badri Mahto, Dhanu Mahto, Magar Mahto, Jaideo Mahto, Kashi Mahto, Sukhdeo Mahto and Bhuna Rajwar. He has argued that when so many persons have came on alarm obviously in response to the assaults being made by the appellants on the victims and who were obviously the neighbours of the informant party and victims then why is it that none of them has been examined as witnesses and when these persons would have been the only independent and reliable witnesses, whose evidences would have been taken into consideration. In the absence of their examination, appellants are grossly prejudiced. He has also said that Mohan Mahto was not examined and also Paresh Mahto also from informant's side not examined. He has also said that it is admitted in the fard-beyan itself that there were some disputes and hence, allegations have been made against the appellants. He has referred to the injury report as deposed by PW-7 who is Upendra Yadav and argued that in absence of doctor or doctor not being examined, injury reports can not be relied upon to be taken account of and so he has said that merely recognition of the hand writing of the doctor by PW-7 would not give the injury reports credibility. And how can advocate clerk recognize handwriting. He has stated that this should be taken into account because in absence of doctor, injuries cannot be explained. He has also pointed out the conduct of Janam Mahto PW-5 who is informant and said that in para 12 of his deposition he has said that he had not gone to save his brother from assaults. Learned counsel has said that this is a very unnatural

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conduct and it shows that no occurrence has taken place. In contrast, he has referred to the witnesses that have been examined and said that they all are relatives of the appellants and they would naturally support the prosecution case. In such situation when none of the existing independent witnesses have been examined, the given evidences should not be relied upon by the court. Building upon his argument counsel further submitted that there is a dispute amongst the party. He has also argued that no sword, iron rod or rods or sticks (lathis) were seized or produced in court which would have formed very valuable pieces of evidence. More so if they had blood stain on them but, they were not produced in court, which has prejudiced the appellants. Investigating officer has also not been examined and in absence of examination of I.O. the appellants are further prejudiced.

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9 . Learned A.P.P. on the basis of deposition of PW-2 and with the help of the written report tried to establish the assault as well as tried to establish the weapon used in the assault and also by whom the assaults were made. Referring to the deposition of PW-2 he has said that Paresh Mahto had assaulted Shankar Mahto on his head and Dashrath had assaulted with iron rod on the back and Chhatish had assaulted with the rod on the head. All the time the accused were saying that he will be killed. Referring to deposition of PW-4 he has deposed that Jaidev Mahto had deposed that at 7 a.m. he was in the house and on hearing the alarm he noticed the accused persons. He has deposed that Paresh assaulted with sword on the Shankar Mahto due to which blood came out. Paresh also assaulted on the left leg of the Shankar. Dashrath assaulted with iron rod on Shankar and Moti ordered to be killed. Learned counsel for the State-APP has said that PW-5 who is the informant of this case has said that Paresh Mahto inflicted sword blow on the head and also assaulted on the knee of Shankar Mahto and that Dashrath Mahto had assaulted with rod. Moreover, he has said that there is no land dispute with the appellants on which learned counsel for the appellants said that in para 8 of his deposition he has referred to land litigation. Finally, counsel for the State has also relied upon the evidence of PW-7 who has said that he recognized the

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doctor's hand writing and proved injury reports as Ext 2 to 2/3 and has also said that as per Section 294 (3) of the Cr.P.C. injury report may be considered more so if it is accepted in the court so it cannot be taken into consideration.

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FINDINGS: -

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10 . In this case, the parties are related to each other and there seems to be ongoing dispute and litigation going on between them. In fact the only person form the respondents who is not a relative is Moti Poddar. PW-4, Jaideo Mahato in Paragraph 4 admitted that previously there has been litigation between them. Even PW-5, Janam Mahato has in para 8 indicated the existence of dispute and litigation between them. Former or prior enmity of course cuts both way, and hence other factor or evidence also need to be considered.

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11 . Learned counsel for the appellants has argued that there are no independent witnesses, but basically from the family of the informant, and they will naturally support his version of events. It is noted from the written report that at least seven other persons were present or appeared on the scene when the assault was taking place or came immediately on alarm. None of them have deposed as witnesses, and thus it arises a question or doubt as to why they did not do so. Independent witnesses deposition would certainly have added more credible evidence and perhaps even supported the prosecution story.

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12. Regarding the assault itself, though allegations are made against six persons to have committed the assault, the only consistent assault seems to be of Paresh Mahato. PW-1 Mohan Mahato attributes assault on head of Shankar Mahato by Bhujali (sharp cutting weapon) by Paresh Mahato. PW-2 Shankar Mahato says Paresh Mahato inflicted sword blow on his head. PW-4 or Jaidev Mahato also attributes sword attack on the head of Shankar Mahato by Paresh Mahato. Again PW-5 or Janam Mahato also supports this version of events, so the allegation against Paresh Mahato is rather consistent.

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13. Regarding Dasrath, who is alleged to have attacked with Sabal or iron rod, the versions are inconsistent. PW-2 or Shankar Mahato himself says Dashrath assaulted on his back. PW-1 or Mohan Mahato also says he assaulted with rod,

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but on which part of the body is not mentioned. It is the same with the deposition of PW-4 or Jaidev Mahato, he does not specifically attribute assault by Dashrath on any particular part of body. So the assault by Dasrath is not consistently alleged by the witnesses.

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14. Since, this is a case of allegation under Sections 147,323 IPC and specifically against appellant no.5 under Sections 324 and 148 IPC, the doctor's report along with other evidences would be crucial. In this case, though PW-7 who happens to be an advocate clerk proves the injury report, the doctor himself has not been examined. So the most consistent allegation or assault may be relied upon.

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15. Finally, no blood stained rod was seized and nor was any blood stained clothes seized and even, the I.O. was not examined, and given the totality of circumstances some benefit of doubt by his absence may accrue to the respondents.

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16 . Hence, based on the aforesaid reasonings and conclusions, except, appellant No.5, Paresh Mahto, rest five appellants are acquitted of the charges levelled against them by giving them the benefit of doubt.

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17. As far as appellant namely Paresh Mahto is concerned, appeal of Paresh Mahto stands dismissed and judgment of conviction and order of sentence dated 7^th April, 2003 passed by the 1^st Additional Sessions Judge, Deoghar in connection with Sessions Case nos. 29 of 1992 corresponding to G.R. Case no. 858 of 1987, Sarath (Chitra) P.S. Case no. 92 of 1987,is, hereby upheld. However, it seems, he was already given the benefit of Probation of Offenders Act. However, by order dated 6.5.2003 of the High Court, pending hearing of the appeal, the order directing execution of bond of Rs. 2000/- for maintaining peace was stayed. As appellant no. 5, Paresh Mahto has been convicted, he is directed to execute the bond before the court below.

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18 . Instant appeal is partly allowed in aforesaid terms.

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Jharkhand High Court, Ranchi Dated: 02.08.2016 Nibha / / N.A.F.R.

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(Ratnaker Bhengra, J.)

Chhatish Mahto And Ors. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Chhatish Mahto And Ors. v. State of Jharkhand

Case brief

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