Dismissed

Ram Charan Mahto And Anr. v. State of Jharkhand

Jharkhand HC28 Sept 2018Cr.A(SJ)/834/2002

Case brief

AI extract

What is this about?

This criminal appeal challenged convictions for hurt and wrongful restraint under IPC. The court held the appeal by the deceased appellant abated due to death. The surviving appellant was convicted but sentenced to a fine instead of imprisonment. (Note: Subject 'pension' was included due to death certificate discussion, as per text analysis).

What did the court decide?

The surviving appellant was directed to pay a fine of Rs. 1000 instead of imprisonment; the appeal was dismissed with modification in sentence.

Ram Charan Mahto And Anr. Vs State of… — Pension and Retirement Benefits | Jharkhand HC (2018)

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CRIMINAL APPEAL (SJ) NO. 834 OF 2002

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Against the judgment of conviction and order of sentence dated 28.09.2002 passed in G.R. Case No. 476 of 1997 by 1^st Additional District & Sessions Judge-cum-Special Judge, Bokaro

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1.Ram Charan Mahto son of late Dewani Mahto 2. Jethu Mahto son of Ram Charan Mahto, Both are resident of Bela tand, P.S.- Dugda, District-Bokaro

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.......Appellants

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Vs.

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

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For the Appellants: Mr. Deepak Kumar Dubey, Advocate For the State: Mr. G.S. Prasad, APP

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PRESENT HON'BLE MR. JUSTICE RATNAKER BHENGRA

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By Court: Heard the learned counsel for the Appellants Sri Deepak Kumar Dubey and Sri G.S. Prasad, learned counsel for the State.

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Counsel for the appellants has presented a photo copy of the death certificate regarding appellant no. 1 Ram Charan Mahto, which is kept on record, and he has also himself submitted that the appellant no. 1 has passed away. In view of his submission and the photocopy of the death certificate, attached, the appeal of appellant no. 1 Ram Charan Mahto stands abated.

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This criminal appeal is directed against the judgment of conviction and order of sentence dated 28.09.2002 passed in G.R. Case No. 476 of 1997 by 1^st Additional District & Sessions Judge-cum-Special Judge, Bokaro, whereby and whereunder appellants are convicted for offences under sections 323 and 341 of the I.P.C. and sentenced to S.I. for one year under section 323 IPC and S.I. for one month under section 341 IPC and both the sentences will run concurrently.

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The prosecution’s case, in brief, is that on 20.06.1997 at about 8.00 a.m., accused Ram Chandra Mahto, Jethu Mahto and their wives demolished the boundary wall and entered into the bari situated in the backside of the house of Bihari Munda and started ploughing it. When the informant and his wife protested, the accused persons caught hold of the informant and assaulted him with Paina and caused serious injuries to him. He went to inform the Mukhia, but he restrained him on the plea that he will decide the matter and advised him not to lodge any case. He further stated in his fardbeyan that accused Ram Charan Mahto and Jethu Mahto also claim the bari land, of which he has got the documents. One year ago, the accused persons had also assaulted him and out of fear he did not file any case, but the accused persons are assaulting them regularly considering them poor harijan persons.

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As per the written report, ( Ext.-1), Dugda P.S. Case No. 22/97 dated 21.06.1997 was registered under sections 341 and 323 IPC and after investigation, the I.O. of the case submitted the charge sheet under section 341, 323/34 of the IPC and section 3 /4 of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989, there upon cognizance was taken against all the four accused persons and the case was committed for trial. The accused persons denied the charges under section 3(iv) and 3(v) of Schedule Caste & Schedule Tribe ( Prevention of Atrocities ) Act, 1989 and section 323 and section 341 of IPC levelled against them. The defence pleaded innocence and claims to be tried. Accordingly, trial was held, witnesses examined and at the conclusion of the trial the accused, the appellants herein were convicted and sentenced as aforesaid. Hence, this appeal. In this appeal five

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prosecution witnesses has been examined P.W. 1 who is Hemlal Mahto is declared hostile, P.W. 2 is injured/informant, P.W. 3 Kaushalya Devi is the wife of the injured/informant, P.W. 4 Dhuma Tandu is independent witness and P.W. 5 is son of the informant. 6. P.W. 2 the injured-informant had stated in the examination-in-chief that the alleged occurrence took place three years ago at about 8.00 a.m.. He was at the time of occurrence ploughing his bari land and his wife was also there. At that time, accused Ram Charan Mahto, Jethu Mahto and their wives entered into his bari land and started abusing him. Jethu Mahto had caught hold of him and Ram Charan Mahto assaulted him with Paina. He sustained injury on his legs and other part of his body. On hulla, his son Kameshwar Munda and Dhuma Tandu and other persons came there and on seeing them the accused persons fled away. He went to the Mukhia of the Panchayat and informed him about the occurrence. The Mukhia restrained him and thereafter, he went to the police station and lodged the F.I.R.. He has proved the written report under the writing of Kartar Singh, the S.I. and he put his signature thereon, marked as Ext.-1. He further alleged that the accused persons wanted to grab his land. He has got documentation (purcha) of the land issued by the Bihar Government in the year 1971-72 and since then he has been in peaceful possession of the land. He answered in para 11 of his cross examination that a proceeding under section 144 of the Cr.P.C. was initiated between the parties in the court at Tenughat and he had filed his written statement in that case.

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P.W. 3 Kaushlya Devi had stated in her examination-in-chief that at the time of occurrence she was with her husband in the bari land. The accused

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persons had entered into their bari land and assaulted her husband with Paina due to which he sustained injuries on his leg and other parts of the body. On hulla Dhuma Kandu, Tilak Mahto and others came there. She corroborates the statement of the injured P.W.-2 that the land claimed by the accused persons, was given to them by the Government. She answered at para 6 of her cross examination that on the northern side of the disputed land nor on any other side , Ram Charan Mahto has got no land. She deposed in para-7 of her cross-examination that she told before the police that the land was given to them by the Government.

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P.W. 5 Kameshwar Munda, the son of the informant had stated in his examination-in-chief that the alleged occurrence took place three years ago at about 8 .00 a.m, he was eating food in the house. When he came out of the house, he saw that his father was lying on the ground on assault made by the accused Ram Charan Mahto and Jethu Mahto with danda his mother was also there. On hulla, Dhamu Tandu and other persons came there. His father had sustained injuries on his legs. He further deposed that the land in dispute was given to them by the Government. The accused persons wanted to dispossess them from their land and due to this reason they assaulted his father. He answered at para 4 of his cross examination that before the occurrence, his father was ploughing the bari land. 9. P.W. 4 Dhuma Tandu stated that the alleged occurrence took place three years ago in the month of Ashardh at about 8 .00 a.m.. At that time, he was in his house. On hearing hulla, he came out of his house and saw that Bihari Munda was lying in an injured condition in his bari land. On enquiry, Bihari told him that Ram Charan and Jethu Mahto has assaulted him. He has

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stated that his house is situated adjacent to the house of Bihari. He answered at para 4 of his cross examination that land of Ram Charan Mahto is situated on the southern side of his house and house of Bihari Munda is situated in the eastern side of his house.

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ARGUMENTS OF THE APPELLANTS’ COUNSEL

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Learned counsel for the appellants argued that the occurrence of this case date backs to considerably a long period of time, in fact, he has stated that it is of the year 1997 and allegedly of minor offences. The convictions have only been done under section 341 and section 323 of the IPC and initially there were four accused. However, conviction was done only against two persons i.e. the current appellants. Initially the offences alleged were for offences under sections 341, 323 IPC as well as under sections 3/ 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, there was no charges sustained under the Atrocities Act. The very fact that two persons have been acquitted indicates that there is not much truth in the entire allegations. It is also to be noted that apart from being an old case, Ram Charam Mahto, who at the time of judgment i.e. in the year 2002 was already 70 years of age and unfortunately now he has passed away and necessary reports about that has also come and therefore appeal by him will stand abated. Counsel has also pleaded that at the time of judgment, the other appellant i.e. Jethu Mahto was also 35 years of age in the year 2002 and now it almost another 15 years gone by so he is about 50 years of age and for minor offences sufficient punishment has already been imposed on him by the vigors of trial. Coming to his main argument, he has argued that the main appellant of the case was Ram Charan Mahto and he was the one who is said to have

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assaulted the injured with an agricultural weapon (Paina). However, counsel submits that he has passed away and essentially it is his offence that would have resulted in any injury if there was any injury at all. Counsel says that in the absence of doctor who would have indicated the injury, it is doubtful that even that such a section 323 IPC would at all be sustainable. Moreover, he has also argued that there is also no examination of the Investigation Officer who could have proved the place of occurrence, or proved the weapon used or even corroborated the injury, so in the absence of the examination of I.O there is no proof of the crime as such, and therefore, the conviction of the remaining appellant cannot be sustained. Counsel had then pointed out that the remaining witnesses i.e. Kaushlaya Devi P.W. 3, Kameshwar Munda P.W. 5 and P.W. 2 himself Bihari Munda, the informant are all interested witnesses, and one witness P.W. 1 Hemlal Mahto who is an independent witness has been declared hostile. So apart from the witnesses who belonged to the same family and are therefore highly interested witnesses there is nothing in terms of human witnesses to sustain the case of very minor sections i.e. 323 IPC and section 341 IPC. The significant allegation in this case is of section 323 IPC, for which the appellant no. 1 was responsible has now passed away and therefore nothing as such remains against him and therefore, given the age of the case, the vigors and rigors of trial, the period already undergone, and also that the remaining appellant also is now well passed his prime in life, therefore, convictions should not be sustained against him and if at all any conviction is sustained against him then the Hon’ble Court may impose the most minimum of sentence in the nature of admonition or any other such sentence which

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will be sufficient at this stage of the case , which is already almost, 20 years from the date of occurrence.

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ARGUMENTS OF THE APP

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Learned counsel for the State, learned APP Mr. G.S. Prasad has argued that though the offences are very minor, the conviction can nevertheless be sustained. He had pointed that there were two persons definitely involved in the assault and they are the two persons who have been convicted and sentenced. He says no doubt one of the appellants, who is Ram Charan Mahto is the person who had assaulted the injured with the Paina and has passed away, but this does not mean that the crime of the remaining appellant is any way less. It has been disclosed that he had come along with the other appellant who has passed away, and they had surrounded the injured person and had restrained him from moving away and assaulted him and therefore, the conviction under both the sections are definitely to be upheld. Counsel had argued that the element of restraining was done particularly by this appellant and without him the total crime would not have been possible. Counsel had also argued that if there was one person then it would have been easier for the injured to resist. But, however, since two persons were there, he was definitely more easily overpowered and therefore the injury has been sustained. He has said that it does not matter whether the doctor and the I.O. have not been examined but it is sufficient if the witnesses are reliable and trustworthy and in this case the family witnesses are natural and reliable and trustworthy and therefore the conviction should be definitely upheld and accordingly the sentences also.

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F I N D I N G S

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Having heard both the counsels; having gone

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through the records of the case and also the evidences, in the facts and circumstances, it is noticed that no doubt it is a case of the year 1997 and from the date of occurrence, almost 21 years have passed, and during this time one of the accused or the appellant no. 1 has already passed away. The prosecution has proved this case beyond reasonable doubt that the appellant No. 1 is the person who had in fact inflicted injury to the injured with a ‘Paina and therefore that can be considered the main offence which actually resulted in injury even if no doctor has been examined to that extent. Because he has passed away, it is not possible for us to impose any conviction and sentence on him. Therefore, in his absence, the main offence of section 323 of the IPC is somewhat mitigated, though, it still apply to appellant no. 2. However, it cannot be denied that the assault was done by the appellant who has passed away and therefore, at this stage after 21 years, there may be some allowance of mitigation in the sentence imposed at this stage. The doctor and I.O. also has not been examined. The non-examination of the doctor and I.O will not materially affect the case of the prosecution as there are consistencies in the statement of the ocular witnesses and the statement of the injured witness, which remains irrebuttable. However, from the evidences of the witnesses, P.W. 2 who is the informant, P.W. 3 and P.W. 4, they do not seem to be untrustworthy and therefore, this Court is inclined to believe the evidences on record. The injured/ informant in his deposition states that the accused Jethu Mahto had caught hold of him i.e. injured/informant and the other witnesses i.e. P.W. 4 and P.W. 5 corroborate the testimony of the injured/ informant by stating that the injured P.W. 2 said to them that Jethu Mahto had assaulted him, which creates a

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sequence of act committed by the appellant that the injured victim was first caught hold by the appellant Jethu Mahto then Ram Charan Mahto had assaulted him and then the informant/injured fell down . Without excluding the participation of Jethu Mahto, it is to be noted that in the fardbeyan assault is non specific in the evidence of the informant paina is attributed to Ram Charan Mahto alone. The prosecution through the evidence of prosecution witness has successfully proved that the accused/appellant while wrongfully restraining the injured had shared a common intention with the main appellant who is now deceased and in furtherance of that common intention had committed hurt to the injured. As the main accused of this case is dead so I find from the tenor of the argument of the counsel for the appellant, it seems that there is acceptance that an incident had occurred, the main onus is shifted onto Ram Charan Mahto. The APP has grasped into this and submitted that this only indicates that occurrence had taken place. So both the conviction and sentence under section 323 and 341 IPC as against the remaining appellant who is Jethu Mahto is upheld.

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The conviction of appellant no. 2, namely, Jethu Mahto under both sections under sections 323 and 341 of the I.P.C. is sustained. This is a case of the year 1997, more than 21 years have passed. For the offences and convictions, at this stage, it may not be appropriate to sentence him to imprisonment now. However, in view of the mitigating circumstances, that this is an old case and the appellant has suffered the rigors and vigors of trial, he is directed to pay a fine of Rs. 1000/- within a period of one month from the date of receipt of a copy of this order, failing which, in default, he will undergo S.I. of 15 days.

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Accordingly, this appeal is dismissed with

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modification in sentence.

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( Ratnaker Bhengra,J.)

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Jharkhand High Court, Ranchi Dated 28.09.2018 Sharda/NAFR

Ram Charan Mahto And Anr. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Ram Charan Mahto And Anr. v. State of Jharkhand

Case brief

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What did the court decide?

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