Dismissed

Prem Mahara And Ors. v. State of Jharkhand

Jharkhand HC17 Sept 2018Cr.A(SJ)/1164/2003

Case brief

AI extract

What is this about?

Appeal against conviction for assault using weapons. High Court upheld conviction but quashed imprisonment consideration given long delay. Ordered compensation payment in lieu of further sentence; imprisonment if compensation unpaid.

What did the court decide?

Conviction upheld. Sentence modified to time already undergone. Compensation Rs 5000 directed; 15 days SI if default.

Prem Mahara And Ors. Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (S.J.) No. 1164 of 2003

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(Against the judgment of conviction and order of sentence dated 24^th July,2003 & 26^th July, 2003 respectively passed by the Additional Sessions Judge, Fast Track Court no. 5, Deoghar in connection with Session Case No. 26 of 1997 arising out of Madhupur P.S. Case no. 107 of 1996, G.R. no. 324 of 1996.)

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Prem Mahara

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Malesh Mahara

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Raghe Mahara @ Radhey Mahara

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Serial no. 1 to 3 are the sons of Bhulak Mahara

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Bhulak Mahara, son of Late Kenkhar Mahara

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All R/o Village Gonaiya, PS-Madhupur, District-Deoghar

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…… Appellants

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-Versus-

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The State of Jharkhand ...... Respondent

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CORAM : HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellants: Mrs. Rashmi Kumar, A.C. Arvind Kumar Choudhary, Advocate For the Respondent: Mr. Sanjay Kumar Pandey,A.P.P.

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By Court:

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When the matter was called out, none appeared on behalf of appellants.

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2. It is to be noted that vide order dated 14.8.2018 it was ordered that if on the next day counsel for the appellant fails to appear then Amicus Curiae will be appointed. Subsequently on 10.9.2018 also none appeared on behalf of appellants. Hence, Rashmi Kumar is appointed as Amicus Curiae to assist this court. Later on advocate Arvind Kumar Choudhary, Advocate has also assisted. Here it is pertinent to note that this court by its order dated 14-082018 had abated the appeal preferred by the appellant no. 4 Bhulak Mahara consequent to his death.

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3. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 24^th July, 2003 and 26^th July, 2003 respectively passed by the Additional Sessions Judge, Fast Track Court no. 5, Deoghar in connection with Session Case No. 26 of 1997 arising out of Madhupur P.S. Case no. 107 of 1996, G.R. no. 324 of 1996 whereby and whereunder all the appellants were convicted under section 323/ 34 and 324/ 34 of I.P.C. and sentenced to undergo rigorous imprisonment for two years u/s 324/34 of the Indian Penal Code and 6 months u/s 323/34 of I.P.C. All the sentences were directed to run concurrently.

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4. The case of the prosecution, in brief, as per written report of the

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informant Debu Mahara , P.W.3 is that on 2.8.1996 some altercation took place between the ladies of both the sides for cutting of grass and matter ended over there. On 3.8.1996 the informant was grazing his cattle in Bahiyar, one kilometer away from his house, then accused Bhulak Mahara along with his three sons namely Malesh Mahara, Raghe Mahara and Prem Mahara arrived there armed with lathi and axe and surrounded him. They started abusing and assaulting him. Accused Prem Mahara inflicted two axe blows upon his head causing bleeding injury and remaining rest three accused persons gave lathi blows to him. Accused persons were also exhorting to kill him.

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5 . On the basis of the written report of the informant Madhupur P.S. Case no. 107 of 1996 was registered U/s. 341,323,324,307 and 504/34 of the I.P.C. against the accused persons. After completion of investigation, charge-sheet was submitted and cognizance of the offence was taken and the case was committed to the court of Sessions. Charges were framed against the accused persons U/s 323/ 34, 341/ 34, 324/ 34 and 504/ 34 of I.P.C. to which they pleaded not guilty. On conclusion of trial, the learned trial court convicted and sentenced the accused persons or appellants herein as aforesaid. Hence, this appeal.

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6. Prosecution has examined altogether five witnesses in support of its case out of whom P.W.3 Debu Das is the informant of the case. P.W.-1 is Teku Das, PW-2 is Tarni Mahara, PW-4 Md. Ahmad is the investigating officer of the case and PW-5 Dr. Biswanath Das is the doctor who had examined the injured informant Debu Das. Dr. R.N. Prasad was examined as court witness C.W.-1.

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7 . P.W.-1 Teku Das is the brother of the informant. He deposed that on the day of occurrence at 7 a.m. he was at his house and on hearing hulla, he went towards the place of occurrence. On reaching at the place of occurrence he saw accused persons assaulting his brother Debu Das. Prem Mahara assaulted Debu Das with an axe on the head of his brother and the other accused persons had assaulted his brother with lathi . In his crossexamination P.W.-1 stated that accused Bhulak Mahara is his own uncle. The distance between his village and the place of occurrence is about hundred yards. P.W.-1 further stated that when he reached the place of occurrence he saw Debu Das was being assaulted. His brother sustained head injury and he fell down on the ground and became unconscious.

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8 . P.W.-2 Tarni Mahara is the father of the informant. He deposed that on the day of occurrence at 7 a.m., he was at his house and his son Debu Das

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had gone for grazing the cattle. On hearing alarm, he went to the place of occurrence and found his son Debu Mahara lying on the ground in an injured condition and blood was oozing from his head and body. On inquiry, his son told him that accused Prem Mahara had assaulted him with axe on his head and remaining accused persons assaulted him with lathi . He further deposed that prior to this occurrence there was some altercation in respect of grasscutting between the ladies of both families and regarding this panchayati was also held and for the said dispute the instant occurrence took place.

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9 . P.W.-3 Debu Das is the informant of this case. He has stated in his evidence that on the day of occurrence at 7 a.m. he went to the field for grazing his cows. In the meantime the accused persons armed with axe and lathi arrived there. Firstly Bhulak Mahara assaulted him with lathi on his waist, then accused Malesh assaulted him with lathi on his back, accused Raghe assaulted him with lathi on the wrist of his left hand and the accused Prem Mahara assaulted him with axe on his head as a result blood oozed out from his head. He raised alarm, upon which his brother (P.W-1) and father(P.W-2) reached there. P.W.3 further stated that after the assault he went to the police station, where he gave his statement. From police station he was sent to Government hospital, Madhupur for treatment. In cross-examination, he deposed that on the day of occurrence he had gone for grazing cow at a distance of about 100-150 hands away from his house.

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10 . P.W.-4 is the investigating officer of this case. He deposed that on 0308-1996, on the written report of the informant Debu Mahara, a case was registered. Investigating Officer has proved the formal F.I.R. and endorsement on the written report which was marked as Ext.-1 and Ext.-2 respectively. Investigating officer further stated that he had inspected the place of occurrence.

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11 . P.W.-5 is Dr. Bishwanath Das who had examined Debu Das and found the following injuries on his person:

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(i) Incised bleeding wound longitudinally placed 4”x1/4”x bone red in colour posterior only on right lateral side of skull over right parietal and temporal bone 4” away from A.P. midline with acute tenderness and bleeding from right ear. X-Ray shows the fracture of skull bone over right temporal and parietal region showing subdural hematoma. It means the collection of blood with the outer table of skull bone.

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(ii) Incised bleeding wound 3” x1/4” x bone deep red in colour. Obliquely, placed on right side upper part of forehead.

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(iii) Incised bleeding wound 2”x1/4” x bone deep red in colour obliquely placed

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on right lateral side of skull 2 ½” away from A.P. mid line.

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(iv) Bruise 5” x1” with acute tenderness on left side upper part of shoulder over scapular region.

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(v) Abrasions and tenderness over left shoulder on scapular region .

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Doctor opined that injury No.1 was grievous in nature caused by sharp cutting substance which may be by kulhari . Injury no.2 and 3 were simple in nature caused by sharp cutting substance which may be by kulhari and injury no. 4 and 5 were simple in nature caused by hard blunt substance which may be by lathi . He has proved the injury report which was marked as Ext.-3. 12. C.W.-1 is Dr. R.N.Prasad who had examined Debu Das and found the following injuries on the person:

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(i) Stitched and dressed wound over the head.

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(ii) Tenderness over the back.

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He opined that both injures were simple in nature. He proved the injury report which was marked as Ext.-A.

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ARGUMENTS ON BEHALF OF APPELLANTS :

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13. Learned counsel for the appellants has first of all taken the court to the evidences of prosecution witnesses and pointed out that PW-1 Teku Das is the brother of informant and in his evidence it has come that all the four appellants were assaulting the informant. Prem Mahara had assaulted his brother with axe on his head. Later on, he deposed that when he had reached the place of occurrence the assault had already taken place. P.W.1 further deposed that the when he reached to the place of occurrence he saw the accused assaulted his brother with tangi and lathi . Learned counsel submitted that PW-1 tried to make such improvement as compared to what has been indicated in the FIR.

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14 . Learned counsel for the appellant further referred to the evidence of PW-2 Tarni Das, father of the informant. This witness deposed that his son Debu Das had gone for grazing his cattle and subsequently he heard alarm and went to the place of occurrence. He saw Debu in an injured condition and he had fallen down. Learned counsel submitted this means that this witness is not a witness to assault. Counsel indicated that when PW-2 enquired, then his son told him that Prem Mahara had assaulted him with axe and other accused persons assaulted him with lathi . In his cross-examination P.W.2 said that he had not heard Debu making any alarm. Counsel then said that on whose alarm he went to the place of occurrence is doubtful. This witness further deposed that Teku Das PW-1 had informed at home regarding assault and

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then he had gone to the place of occurrence. This is also an inconsistency or a contradiction made by PW-2 because he had earlier deposed that he had heard alarm but here he says that PW-1 had come to inform him at home. Counsel said that there is also inconsistency as to who gave information subsequent to which PW-2 reached the place of occurrence.

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15. Learned Counsel then referred to the evidence of the informant PW-3 Debu Das, who was injured. He had deposed that he had gone for grazing cattle. At that time Bhulak Mahara, Malesh Mahara, Raghe Mahara and Prem Mahara arrived there. Bhulak Mahara assaulted him with lathi on his waist, then Malesh Mahara assaulted him with lathi on his back, Raghe Mahara assaulted him with lathi on the wrist of his left hand and accused Prem Mahara assaulted him with an axe on his head causing bleeding injury. Informant further deposed that when he made alarm then his father P.W.2 and brother P.W.-1 came. Then they took him to Madhupur police station on rickshaw. The officer-in-charge of the Madhupur P.S. wrote his statement and he had put his thumb impression. Police sent him to the Government Hospital, Madhupur where he was treated. He further deposed that there was dispute between the women with respect to cutting of grass .In his cross-examination he deposed that he had left his home at 6:30 a.m. to 7:00 a.m. for grazing cattle and he had not taken a lathi . He further deposed that he does not remember whether he had given his statement to the police in writing or had got it written and who had taken his thumb impression on which paper he does not remember because at the time of giving thumb impression he was not fully conscious. Counsel for the appellants submitted that this part of the evidence of PW-3 is very questionable because on one hand he said that he was conscious and on the other hand he said he was unconscious when his thumb impression was taken. Hence, learned counsel submitted that the basis of FIR is very faulty and it was thus initiated on faulty premises.

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16 . Learned counsel further submitted that P.W.-5 is the doctor who had examined the injured informant Debu Das. He further submitted that doctor had found all the injuries simple in nature. Debu Das himself deposed that accused persons gave lathi blows on his back but the doctor had not found any injury on his back. Further informant Debu Das deposed that he sustained injuries on the wrist of his left hand but as per injury report no injury was found on the wrist which shows that there is contradiction in the deposition of informant and injury report of the doctor.

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17. Lastly learned counsel for the appellants without admitting the guilt of the appellants submitted that the occurrence is of 1996 and hence, about 22

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years have passed and the appellants have faces rigors and vigour of trial. Appellant no. 1 Prem Mahara had already spent more than one year in jail and hence, lenient view may be taken in awarding sentence to all the appellants if the appellants are found guilty.

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ARGUMENTS ON BEHALF OF STATE :

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18. Learned counsel for the State-APP has argued that this is a case where there is one injured witness who is the informant himself namely PW-3 Debu Das and we have the corresponding corroborating evidence of the doctor PW5 who is one Dr. Biswanath Das. So on the basis the of evidence of PW-3 and PW-5 itself there is sufficient evidence for conclusively holding that the appellants are guilty of the offences they have been convicted and sentenced for by the learned trial court. However, in addition there is another doctor C.W1 who had also been examined and though he is a court witness and he had also indicted that there had been stitched and dressed wound over the head of Debu Das and also there was tenderness over the back. So even the second doctor had supported the case of the prosecution.

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19 . Learned counsel further submitted that PW-3, who is the informant, had fully supported the prosecution case as made out in the F.I.R. in which he had said that he had gone out for grazing cattle and then four accused persons i.e. Bhulak Mahara along with his three sons namely Raghe Mahara, Prem Mahara and Malesh Mahara had assaulted him with lathis and axe. Informant was assaulted by lathi by Bhulak Mahara, Malesh Mahara and Raghe Mahara and informant was assaulted by an axe by Prem Mahara on his head. PW-3 in his evidence has fully supported and corroborated the case as reported by him in his F.I.R. From the evidence of the doctor PW-5 it is seen that informant had received at least three incised bleeding wounds. The first one is on his head and indicated as posterior only on right lateral side of skull over right parietal and temporal bone. The second injury is indicated as incised bleeding bone deep on right side upper part of forehead. There are three other injuries. The doctor had opined that injury no.1 was grievous in nature. Learned APP states state that counsel for the appellants tried to indicate that all the injuries are simple in nature. But from the evidence of the doctor it is clear that injury no.1 is grievous in nature, even though the appellants have been convicted only u/s 323 IPC and 324 IPC. Counsel for the appellant says that the other two witnesses are from the family i.e. PW-1 Teku Das and PW-2 Tarini Das. Even if it is considered that they are interested witnesses and they have not actually seen the assault, even for the sake of argument it cannot be denied that they had arrived immediately at the

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place of occurrence because the place of occurrence is nearby from the house and saw the informant in an injured condition and fallen down. Therefore, even the evidence of PW-1 and PW-2 is supportive in nature. Learned Counsel for the State therefore submitted that on the basis of evidences available the impugned judgment of conviction and order of sentence as passed by the learned court below is fully justified and needs to be sustained and upheld.

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FINDINGS:

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20. Having gone through the records of the case and evidences and having heard learned counsels for both the sides I, find that this is a case in which there is an injured witness who is the informant himself i:e P.W.3 Debu Das. He had received five injuries out of which three are incised in nature. The injuries inflicted by appellant no.1 Prem Mahara on the head of the injured as per the F.I.R. and also as per the evidence of PW-3 are corroborated by the medical evidence or injury report Ext.-3. The other injuries have been caused by the other accused including appellants nos. 2 and 3, particularly injury nos.4 and 5 which are of the nature of bruise and abrasions which is said by the doctor to be caused by hard and blunt substance such as lathi . The doctor had given opinion that injury no. 1 which is on the head is grievous in nature and the other injuries are simple in nature. Injured has corroborated his F.I.R. to the effect that he was assaulted by Prem Mahara with an axe and remaining accused including the two other appellants i:e appellant no. 2 Malesh Mahara and appellant no.3 Raghe Mahara had assaulted the injured informant with lathis. S o, the injuries as given by the doctor are consistent with the case as made out by the prosecution. Therefore, ocular evidence is fully supported by medical evidence. Further, the evidence of the court witness i.e. C.W.-1 Dr. R.N. Prasad also does not detach from the findings of the aforesaid witnesses in the sense that he had also given evidence that Debu Das had stitch and dressed wound on the head and tenderness in his back which does not negate the injuries as indicated by the other doctor i.e Dr. Biswanath Das or PW-5 particularly in respect of injury no.1 and 2 which can be attributed to kulhari .

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21 . Hence, on going through the F.I.R, evidence of injured informant P.W.3 and evidence of Doctor P.W.5 and injury report Ext.-3 I, come to the conclusion that the prosecution has been able to prove the charges against the appellants under section 323/ 34 and 324/ 34 of I.P.C.

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22 . Accordingly, judgment of conviction dated 24^th July, 2003 passed by the Additional Sessions Judge, Fast Track Court no. 5, Deoghar in connection

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with Session Case No. 26 of 1997 arising out of Madhupur P.S. Case no. 107 of 1996 is sustained and upheld.

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23 . Regarding sentence I, find that that the case is of the year 1996 and till now almost 22 years have passed. The main accused i.e appellant no. 1 Prem Mahara has already remained in custody for about one year 22 days and appellants have faced rigors and vigors of trial and the offence had taken place in the background of family dispute as parties are related to each other and are agnates or gotias . Therefore, period already undergone by the appellants is considered as sentence sufficiently served and hence, appellants sentence is restricted to the period already undergone by them. But,as injury was caused to the informant P.W.3 Debu Das so, surviving appellant no.1 Prem Mahara, appellant no. 2 Malesh Mahara and appellant no.3 Raghe Mahara are directed to pay consolidated compensation of Rs. 5,000/- to the injured informant Debu Das within a period of two months from the date of receipt of copy of this judgment, failing which, they shall undergo S.I. for fifteen days. The amount of compensation may be deposited in concerned or successor court below. Appellants will be discharged of their liability of bail bond after payment of the aforesaid compensation.

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24 . Before parting with the judgment, this court is thankful to Amicus Mrs. Rashmi Kumar for his service rendered to this Court. Member Secretary, Jharkhand State Legal Services Authority is directed to pay the remuneration to the amicus as per rules.

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25 . This criminal appeal is dismissed with above modification in sentence.

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Jharkhand High Court,Ranchi dated:17.09.2018(Nibha)/NAFR

Prem Mahara And Ors. v. State of Jharkhand

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Prem Mahara And Ors. v. State of Jharkhand

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