Partly allowed

Agnisen Mahto And Ors. v. State of Jharkhand

Jharkhand HC7 Dec 2018Cr.A(SJ)/972/2003

Case brief

AI extract

What is this about?

Criminal appeal against conviction for affray and grievous hurt. Court upheld conviction but modified sentences for most appellants to four months simple imprisonment due to age and trial duration. Appellant Yudhisthir Mahto, aged 80, was discharged. Court ordered consolidated compensation of Rs. 30,000 to the injured informant.

What did the court decide?

Conviction upheld; sentence modified to four months S.I. for most appellants; excess term deducted; Rs. 30,000 compensation ordered; 80-year-old appellant discharged.

Agnisen Mahto 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. 972 of 2003

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 (Against the judgment of conviction and order of sentence dated 7.7.2003
passed by the Additional District Judge, Fast Track Court, Seraikella in
connection with S.T. No. 10 of 2002 arising out of Kharsawan P.S. Case no. 15
of 2001, G.R. Case no. 375 of 2001)

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1. Agnisen Mahto S/o Late Asti Mahto

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2. Parsuram Mahto, S/o Late Dukhi Mahto

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3. Nityanand Mahto}

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4. Permanand Mahto}All three are sons of Parsuram Mahto

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5. Devanand Mahto }

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6. Sharad Chandra Mahto S/o Ram Chandra Mahto

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7. Yudhisthir Mahto S/o Dukhu Mahto

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8. Sudhanshu Mahto s/o Yudhisthir Mahto

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All R/o village- Sandeburu, P.S. Kharsawa, District- Saraikela …… Appellants -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 : Miss. Amrita Sinha, Amicus Curiae For the Respondent : Mr. Sanjay Kumar Pandey,A.P.P.

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Dated 7^th December,2018

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RATNAKER BHENGRA,J

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It is brought on notice by learned counsel for the appellants that appellant No. 2 i.e. Parsuram Mahto has passed away and report to that effect which is memo no. 918 dated 27.9.2018 has been received from the officer-in-charge of Kharsawan police station and copy of death certificate of Parsuram Mahto is attached with the aforesaid memo. Accordingly, the appeal pertaining to appellant no.2 Parsuram Mahto stands abated. 2. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 7^th July, 2003 passed by the Additional District Judge, Fast Track Court, Seraikella in S.T. Case No. 10 of 2002 arising out of Kharsawan P.S. Case no. 15 of 2001 whereby and whereunder appellant no.3 Nityanand Mahto was convicted under sections 147, 325, 323/149 and 324/149 of the Indian Penal Code and sentenced to undergo R.I. for six months under Section 147 of the Indian Penal Code, R.I. for three years and a fine of Rs. 1,000/- u/s 325 IPC and

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R.I. for six months u/s 323/149 IPC and two and half years with fine of Rs. 1000/- U/s 324/149 IPC. Further appelant no.6 Sharad Mahto was convicted under sections 148,324, 323/149 and 325/149 of the Indian Penal Code and sentenced to undergo R.I. for one year under section 148 IPC , R.I. for two and half years u/s 324 IPC with a fine of Rs.1,000/and R.I. for six months u/s 323/149 IPC and R.I. for three years u/s 325/149 IPC. Remaining appellants Agnisen Mahto, Parsuram Mahto, Permanand Mahto , Yudhistir Mahto, Devanand Mahto and Sudhansu Mahto were convicted under sections 147, 323, 324/149 and 325/149 and sentenced to undergo R.I. for six months u/s 147 IPC, R.I. for six months u/s 323 IPC, R.I. for two and half years with a fine of Rs. 1,000/- each under section 324/149 IPC and R.I. for three years with a fine of Rs. 1,000/- u/s 325/149 IPC. In default of payment of fine appellants were further directed to undergo S.I. for six months. All the sentences were directed to run concurrently.

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3 . The case of the prosecution, in brief as per fardbeyan of the informant Neel Kamal Mahto-PW-7 is that on 12.6.2001 at about 11 p.m. he was going to see ‘ Chow’ dance organized in the village. When he reached near house of accused Agnisen Mahto, he saw all the accused persons or the appellants herein in his torch light. They surrounded him and then Agnisen armed with rod assaulted him on his head as a result he sustained injury and fell down. Thereafter accused persons carried him inside boundary wall and accused Nityanand Mahto armed with sabal , accused Devanand armed with stick, accused Permanand armed with rod and remaining accused persons armed with stick and bhujali also assaulted him. He sustained injury and raised alarm and any how ran towards village path, where he fell down and lost his consciousness. It is further alleged that when he regained consciousness he found himself in his house and did not know who took him to his house. In the morning he was taken to Kharsawan hospital. It is further alleged that there was dispute with accused persons regarding village path.

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4 . On the basis of the fardbeyan of the informant Kharsawan P.S. Case No. 15 of 2001 was registered against the accused persons and after investigation charge-sheet was submitted. Cognizance of the offence was taken and case was committed to the court of Sessions. Charges were framed against the accused persons u/s 147, 323, 325 and 307 of the IPC to which they pleaded not guilty. The defence case is that appellants have been falsely implicated in this case because one Satya

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Bhama Devi, member of family of accused, lodged a case under section 376/511 IPC against the informant and then to save his skin from that case the present case has been instituted by the informant against the accused persons.The accused have denied the allegation in their statement under section 313 Cr.P.C. After conclusion of trial accused appellants were convicted and sentenced as aforesaid. Hence, this appeal.

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5 . Prosecution examined altogether nine witnesses in support of its case. PW-7 Neel Kamal Mahto is the informant of this case. PW-1 is Dr. P.K. Sinha who examined the injured informant. Other witnesses are P.W.2 Mahesh Kumar Mahto, P.W.3 Jagdish Mahto, P.W.4 Shankar Mahto, P.W.5 Mahabir Mahto, P.W.6 Pandey Tiu, P.W.8 Santosh Mahto and PW-9 Mahendra Prasad is the I.O. of the case.

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6. P.W.-7 Neel Kamal Mahto is the informant of this case. In his evidence he stated that on the day of occurrence on 12.6.2001 at 11 p.m. in the night he was going to see ‘chow’ dance. When he reached near the house of one Agnisen Mahto he saw the named accused persons in torch light standing there with sabbal, bhujali, rod and stick and they had surrounded him. He further deposed that Agnisen Mahto appellant no.1 had assaulted him with rod on his head as a result he fell down. Thereafter accused persons carried him inside boundary wall and there appellant no.3 Nityanand Mahto assaulted him with sabbal on his leg causing fracture in his leg. He further stated that Parmanand Mahto appellant no.4 assaulted him with rod on his thigh and Sharad Mahto appellant no.6 assaulted him with bhujali on his head. The other accused persons Devenand, Parsuram, Sudhanshu, Yudhisthir assaulted him with stick. Thereafter in order to save himself he fled away but he fell down on village road and became unconscious. He regained consciousness in his house and told about the incidence to his family and other villagers. In the night he had no arrangement so he went to the hospital in the morning. He has proved his signature and signature of his brother PW-8 Santosh Mahto on the fardbeayn which were marked as Ext.2 and Ext. 2/1 respectively.He further stated that due to prior disputes regarding path occurrence had taken place. In his cross-examination he stated that path on which he was travelling is a public road and on the day of occurrence no one was present there. The accused persons were sitting by the side of the road and he identified them in the light of the torch from a distance of 5 feet. He reiterated that the accused Agnishen Mahto gave

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the first assault with rod.

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7. PW-1 Dr. P.K.Sinha is the doctor who examined the injured informant PW-7 Neel Kamal Mahto and found following injuries on his person :

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( i) sharp cut wound over scalp touching bone of 2”x1/2” scalp deep at central region

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(ii) Lacerated wound left ring finger at base ½”

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(iii) A braded wound over terminal phalonx.

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(iv) Contusion 3”x2” at left shoulder posterior auspect.

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(v) Linear mark 4”x2” over posterior auspect of thigh.

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(vi) Three linear marks over left lateral auspect of thigh 6”x1/2”

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(vii) Two linear marks over left tileic lateral auspect 3”x1/2”

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(viii) swelling of left ankle radiologically fracture of tileala shaft at base.

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(ix) Sharp cut wound at left big toe or planter auspect.

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Regardimg injury doctor opined that Injury No. I to IX except injury no. VIII are simple in nature and injury no.VIII is grievous in nature. He has proved injury report which is marked as Ext.1

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8. PW-9 Mahendra Prasad is the I.O. of the case. He has proved the fardbeyan, endorsement on fardbeyan and formal FIR which were marked as Ext. 3, Ext. 3/1 and Ext. 3/2 respectively. He stated that he inspected the place of occurrence and found blood stains on the ground . At para 3 he stated that he issued the injury requisition.

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9. The other remaining prosecution witnesses PW-3, PW-4, PW-5, PW-6 and PW-8 have stated in their evidence that on the day of occurrence they were watching ‘chow’ dance. In the meantime on hearing hulla they rushed towards the place of occurrence and found PW-7 Neel Kamal Mahto lying in injured condition and blood was oozing out from his body.

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ARGUMENTS ON BEHALF OF APPELLANTS:

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10. Learned amicus curiae appearing for the appellants submitted that this is a fabricated case and is totally false and has only been done because there has been allegation made against the informant u/s. 376/ 511 IPC by one Satya Bhama Devi who is from the family of the accused persons or the appellants and only to save his skin from these allegations of sexual nature this case has been lodged by the informant himself. Learned counsel for the appellants submitted that this contention was not

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taken or accepted by the learned trial court below. Learned counsel further argued that the incident is allegedly of late in the night at around 11 p.m. and the alleged victim says that he had seen the assailants who were eight in number by torch light, which is not possible to recognize eight accused persons at a time by torch light. The nature of the injuries are such that all the injuries are on left side and it would indicate that informant had fallen down on one side and got injured. It is not possible that eight persons assaulted the informant with weapons such as sabbal, rod and bhujali and informant sustained injuries on one side of the body and he did not receive injuries on the other parts of the body.

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11. Learned amicus curiae further submitted that except the informant all the other prosecution witnesses are hearsay witnesses and therefore, it is not proper to sustain the allegations against the appellants. She has pointed out from the evidence of PW-2 and argued that he had said that he does not know who had assaulted. Similarly, PW-3 only heard that Neel Kamal was assaulted. Therefore, it is apparent from the evidences of the other prosecution witnesses that they had only heard about the assaults made on the informant and hence the entire case of the prosecution rests on the evidence of the sole witness PW-7 Neel Kamal Mahto. Learned Counsel has also argued that PW-9 who is the investigating officer of the case also deposed that he did not find any eye witness.

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12. Learned amicus curiae further submitted that occurrence is of the year 2001 and impugned judgment if of the year 2003 and even by that date, the remaining appellants also were not very young. In fact on the day of pronouncement of the judgment by the learned trial court appellant no. -7 Yudhisthir Mahto was about 64 years, appellant no.2 Parsuram Mahto was 68 years who has already passed away during the pendency of this appeal, appellant no.1 Agnishen Mahto was then aged about 47 years and all the other appellants were also nearly about 30 years of age. Therefore, this court while deciding the case may also keep into consideration the rigours and vigours faced by the appellants during trial and the present age of the appellant no. 7 Yudhisthir Mahto is now 80 years, appellant no. 1 is now 63 years and other appellants are also now about 50 years of age.

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AR GUMENTS ADVANCED ON BEHALF OF STATE :

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13. Learned counsel for the State-learned APP has argued that PW-7 who is the informant and an injured eye witness has fully supported the

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prosecution case. Learned counsel submitted that injuries sustained by the informant is corroborated by the medical evidence of the doctor PW-1 who found as many as nine injuries on the person of informant which can only be possible by assault by many persons at a time. Therefore, ocular evidence is fully supported by the medical evidence of the doctor. Learned counsel further submitted that such injuries are not possible simply by falling down as informant also sustained cut injury as well as a fracture injury and these injuries are also supported by the evidence of doctor. Learned counsel has also argued that the investigating officer stated that apart from the injured there was no eye witness and this is so because incident occurred at 11 p.m. in the night. Investigating officer himself has deposed that blood stains were found at the place of occurrence and therefore these blood stains only substantiated the case of the injured eye witness.Lastly, learned counsel submitted that impugned judgment of conviction passed by the learned court below is based on evidence and requires to be sustained and upheld by this court.

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FINDINGS

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Having heard both counsel, having gone through the records of the case and the evidences I find from the injury report Ext.1 of the injured informant,the number of injuries sustained by the informant are nine in numbers and nature of injuries caused to the informant will lead to the conclusion that the appellants were variously armed with weapon and assaulted the informant on the day of occurrence.

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15. Now,coming specifically to the assault made on the informant PW-7 by the appellants,I find from the evidence of the injured informant PW-7 that appellant no.3 Nityanand Mahto assaulted the informant with sabal on his leg as a result his leg was fractured. From the deposition of doctor also, I find that injury no.8 was swelling of left ankle and radiologically fracture of tileia shaft at base and regarding injury no. 8 doctor opined that it was grievous in nature. Regarding, appellant no.6 Sharad Mahto,I find that appellant no.6 assaulted the informant with bhujali on his head as a result informant sustained injury on his head. Doctor PW-1 also found sharp cut wound over scalp touching bone of 2”x1/2” scalp deep at central region. Regarding other appellants, I find from the deposition of injured informant that appellant no. 1 Agnisen Mahto assaulted the informant with rod and appellant no. 4 Permanand Mahto also assaulted with rod on the thigh of the informant. Further, appellant no. 5 Devanand Mahto, appellant No.7 Yudhistir Mahto and appellant no. 8 Sudhanshu

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Mahto assaulted the informant with stick.

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16. Hence, combined reading of deposition of injured informant PW-7 and evidence of doctor PW-1 who examined the injured informant and injury report Ext.1, I find that remaining seven appellants on the day of occurrence were variously armed with deadly weapon such as rod, bhujali and stick and attacked on the informant PW-7 forming an unlawful assembly for prosecution of their common object i.e. prior dispute regarding path with the informant. Due to such attack informant sustained as many as nine injures out of which injury no. 8 was grievous in nature. Hence, the learned court below rightly convicted the appellant no. 3 Nityanand Mahto u/s 147, 325, 323/149 and 324/149 of IPC and appellant no. 6 Sharad Chandra Mahto u/s 148,324,323/149 and 325/149 of the IPC and remaining appellants u/s 147, 323, 324/149 and 325/149 of the IPC.

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17. The defence of the appellants side that they were falsely implicated in this case because one Satya Bhama Devi member of family of accused had lodged a complaint case being C/1 case no. 61/2001 for the offences u/s 376/511 of IPC against the informant is not tenable because in the impugned order learned AAP submitted that the defence case is no more existing as the complaint case has already been dismissed. Otherwise also each case shall be judged in its facts and circumstances and on its own merit.

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18. Hence, the impugned judgment of conviction dated 7.7.2003 passed in S.T. Case no. 10 of 2002 arising out of Kharsawan P.S. Case No. 15 of 2001 is sustained and upheld.

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19. As far as sentence is concerned, considering the age of the case and that the appellants have already undergone rigours and vigours of trial, the sentence of all the remaning appellants except appellant no.7 Yudhisthir Mahto is modified to four months S.I. and any period already undergone by the appellants in custody shall be deducted from modified sentence passed by this Court.As appellant no.7 Yudhisthir Mahto is 80 years old now, his sentence is restricted to period already undergone by him and he is discharged from liabilities of bail bond.Further,as informant Neel Kamal Mahto sustained injury, a consolidated compensation of Rs. 30,000/- to be paid by the remaining appellants to the injured informant for the ends of justice. In default of payment of compensation amount appellants will undergo S.I. of one months. The appellants will be discharged from the liability of bail bonds after payment of consolidated

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compensation amount. If any of the appellants have already undergone the modified sentence imposed by this court he will be discharged from the liabilities of the bail bond subject to payment of consolidated compensation amount.

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20 . The appeal is dismissed with upholding the conviction and modification in sentence.

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21 . This court is thankful to Miss. Amrita Sinha, amicus curiae for her assistance rendered to this court. Secretary, JHALSA is directed to pay remuneration to Miss Amrita Siha, amicus curiae as per rule.

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(Ratnaker Bhengra,J)

Agnisen Mahto And Ors. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Agnisen Mahto And Ors. v. State of Jharkhand

Case brief

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What did the court decide?

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