Arjun Mahto Vs State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (SJ) No. 858 of 2012

(Against the common Judgment of conviction dated 25.07.2012 and order of sentence dated 30.07.2012, passed by the learned District and Additional Sesssion Judge II,Girdih in S.T. No. 246 of 2005.

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Churaman Mahto Nepal Mahto Thambhi Mahto@ Thambi Mahto Versus

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…. Appellant

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The State Of Jharkhand ….. Respondent WITH Cr.Appeal (SJ) No. 918 of 2012

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Arjun Mahto ... Appellant Versus

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The State of Jharkhand ... Respondent

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P R E S E N T

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HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ….. For the Appellants : M/s Yogesh Modi, Chaitali Chatterjee Sinha Ruchi Mukti, Omiya Anusha, Advocates Mr. Tarun Kumar no.1, Advocate For the State : APP

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By Court:- Heard learned counsel for the appellants and learned counsel for the State.

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1. These Criminal appeals are directed against the common judgment of conviction dated 25.07.2012 and order of sentence dated 30.07.2012 in S.T. No. 246 of 2005 passed by the then learned the learned District and Additional Sesssion Judge II,Girdih., whereby the appellants, Churaman Mahto and Thambhi Mahto were convicted for the offence under Sections 147,148, 307 and 326 of the IPC, and Nepal Mahto for Section 147,148, 307 and 324 of the Indian Penal Code.

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2. The prosecution case is based on the fardbeyan of the informant recorded Triloki Mahto recorded on 26.06.04 at Poddar clinic Bengabad. As per the FIR Informant had given his homestead land (bari) on batai to Churaman Mahto for potato cultivation last year, but the proportionate share of the yield was not given to him. The incidence was triggered when on the date and time of occurrence and also i,e on 26.06.2004 at 6.30 AM Churaman Mahto started forcibly ploughing the said field which was objected to by the informant. On this Churaman made a ruckus, and on Hulla other accused persons named in the F.I.R namely Nepal Mahto, Arjun Mahto and Thambi Mahto armed with chhura, sword, Tangi and iron rod came there and conjointly made an attempt on his life by indiscriminately assaulting him with deadly weapons. Churaman Mahto inflicted sword blow on his

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head rendering the informant unconscious and after some time when he regained consciousness, he saw that his family members saved him and in course of intervention they also sustained injuries. Thereafter the accused persons fled away

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towards their respective houses and the informant and other injured were treated in Poddar Clinic where his fardbeyan was recorded.

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3. On the basis of the ' fardbeyan ' of (informant, Triloki Mahto), the Police instituted First Information Report being Bengabad P.S. Case No. 54 of 2004 (dated 26.05.2004) corresponding to G.R. No.1077 of 2004 under Section 341, 323, 324, 504, 307, 34 of the Indian Penal Code against the accused persons. After investigation submitted charge sheet against all the accused persons.

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4. The learned trial Court below framed the charge against the accused/appellant under Sections u/s 341,504,307,148,323,324,326 read with section u/s 149 of the Indian Penal Code.

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5. Altogether 12 witnesses have been examined on behalf of the prosecution and relevant documents including injury reports been adduced into evidence and marked as exhibits. The statement of the accused persons was recorded under Section 313 Cr. P.C., but pleaded innocence. One defence evidence has been adduced into evidence who has proved Ext A.

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6. The impugned judgment of conviction and sentence has been assailed on the ground that there is no recovery of arms or blood stained clothes. P.W.1 and P.W.2 have not deposed against any other accused except, Churman Mahto. Neither independent witness nor co-villager(s) have been examined and the case rests upon the testimony of interested witness(es).

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7. It is further argued that the land in which the accused, Churaman Mahto was ploughing the field was the joint property of both the sides and not the individual property of the informant. Accused, Churaman Mahto was not initially armed with any weapon and as per the prosecution evidence, the sword was given to him by one Nepali Mahto.

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8. It is further submitted that the offence under Section 307 IPC will not be made out as per the injury report which speaks only one single blow which is said to be on the vital part of the body, but the Doctor has not stated that it was fatal to the life. As far as the other accused persons are concerned, charge under Section 307 IPC is not at all made out as the injury inflicted by them is simple in nature. It is submitted that there is vital contradiction in the statement of the prosecution witnesses as deposed to by P.W.2 (Murat Gope) in Para-11 and P.W.4 (Jageshwar Gope) at Para No.3.

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9. Learned counsel for the State has defended the judgement of conviction and sentence.

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10. Adjudication in a criminal case involves broadly determination of two questions. Firstly, whether any incidence did take place, and if so, in cases of assault who were the aggressors and was there any defence to the said act.

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11. In the present case FIR was lodged on the very same day of incidence after four and half hours on the basis of the statement recorded by the police of the informant in a private clinic. The attending doctor has been examined as PW9 and on his testimony the injury reports of Triloki, Nandlal, Chholo and Jageswar Mahto have been adduced into evidence and marked as exhibits. The injury sustained by the injured persons are as under:

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The injuries found on the person of injured, Triloki is as under :-

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(i) Incised wound 6 cm X 1 cm skull deep, spindle shaped with exclusive bleeding and skull bone partly cut on the left vertex caused by sharp weapon such as sword.

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(ii) Incised wound 4 cm X 1 cm x ½ cm spindle shape with bleeding edge on right side back of head caused by sharp weapon;

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(iii) Brown red 2 cm X 1 cm on the back of left elbow caused by hard blunt substance;

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(iv) Incised wound 1 cm X ½ cm X ¼ cm with bleeding edge of the mid of left index finger and middle finger caused by sharp weapon caused by a dagger;

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(v) Lacerated wound 2 cm x ½ cm x ¼ cm with read blood clot on right elbow caused by blunt object which may be a rod.

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As regard injury of Nandlal Gope , Son of Triloki Gope of the same

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village, which are as follows :-

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(i) Brown red 4 ½ cm X 3 cm on the left hand.

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(ii) Brown red 3 cm X 1½ cm on the right hand.

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(iii) Brown red 3 ½ cm X 3 cm on the back right side.

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(iv) Abrasion red 2 cm X 1 ½ cm on the left side of the neck.

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As regard injury of Chollo , the injuries are as follows :-

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(i) Lacerated wound 4 cm X ½ cm skull deep with red blood clot on the forehead, simple in nature caused by hard blunt substance;

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As regard injury of Jageshwar , the injures are as follows :-

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(i) Lacerated wound red blood clot 2½ cm X ½ cm on the Forehead; (ii) Lacerated wound with red blood clot 1½ cm X ½ cm on the left palm;

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(iii) Brown red 3 cm X 2 ½ cm on the left elbow;

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(iv) Lacerated wound with red blood clot 2½ cm X 2 cm on the back left side;

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12. Promptitude in lodging the FIR along with the injuries of the informant and his family members, as noted above leave no doubt whatsoever that the incidence did take place in which the informant and his family members sustained multiple injuries.

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13. Coming to the author of crime when plurality of persons from the informant party and no one of the accused sustained any injury, a presumption of fact under Section 114 of the Evidence Act can be drawn that they were not the aggressors, but victim of the aggression. This is for the reason that party who come fully prepared for the showdown are less likely to suffer injury, than those who become

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victim of such attack. It may be noted that the list of presumptions of fact as stated in Section 114 of the Evidence Act are not exhaustive and appropriate presumptions can be drawn depending on the facts of the case.

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14.

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15.

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Informant (PW-10) has deposed that on the date and time of incidence Churaman Mahto had started ploughing his field, and when this was opposed by him, he called others there. Nepal Mahto came with with knife and sword, Thambi Mahto with tangi. He gave the sword to Churaman Mahto and himself attacked him with knife over his chest. Informant stopped the knife blow from his hand resulted his finger was cut off. Churaman inflicted sword blow over his head as a result momentarily he lost consciousness. When he regained consciousness he saw his family members in injured condition. In his cross-examination at para-10, he has deposed that he became unconscious after being hit by Churaman. There is no suggestion given on behalf of the defence that the land in question was a joint family property. In the FIR also it has been stated by the informant that sword blow was inflicted by the Churaman over his head. Attention of this witness has not been drawn to his fardbeyan or the subsequent statement given to police, so as to draw any contradiction in his deposition. His testimony can be said to be fully corroborated by the fardbeyan under Section 157 of the Evidence Act.

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Other injured persons have been examined in the case as PW-4(Jogeshwar Gope), PW8 (Nandlal Gope), and PW3 (Chollo @ Chando Gope). All of them have given a consistent account of the incidence, in which it has been stated the appellants variously armed with deadly weapon attack the informant party and caused critical injury to them. PW3 has deposed that he was hit by Thambi Mahto with tangi on his head resulting in bleading injury. There is no cross-examination on the manner of incidence. His attention has not been drawn to elicit any contradiction. Defence suggestion alludes to claim of title over the land in question.

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PW.4 has deposed that informant was struck by Churaman with the sword over his head and Nepal Mahto attacked him with knife over his chest. Thambi Mahto hit him at his back with tangi. In his cross-examination he has deposed that when he went there he found Triloki lying on the ground with four injuries over his body, but he was not unconscious. Therefore, his testimony regarding the manner of assault upon Triloki cannot be relied upon. His testimony that he was attacked by Thambi with tangi over his head can however be accepted. He has candidly admitted that his statement was not recorded by the police. Nevertheless, when there is evidence to show that this witness had sustained injury it lends credence to his presence at the place of occurrence. Failure to record statement by police, shall not render his deposition as nugatory, for the reason that any laches on the part of investigation cannot be the sole ground to discard the testimony of witness, which

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is otherwise credible and trustworthy. Suggestion given to this witness alludes to claim of ownership of the land, but it has not been stated that it was a joint family property.

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PW8 has corroborated the testimony of other witnesses that it was Churaman and Nepal Mahto who had attacked informant Triloki Mahto with Sword and chhura respectively. It has been deposed by him that Arjun Mahto had attacked him, on which he bowed down resultantly he sustained scratch injury over is neck. Nothing significant has come in the cross-examination so as to discredit the account of this witness.

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With regard to the argument that all the witnesses are interested witnesses it needs to be reiterated that merely because the witness a family members, they cannot be called interested witness and the testimony cannot be discarded. It has been held in Dalip

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Singh and Ors. v. State of Punjab , (1953) 2 SCC 36

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24. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts. It needs to be noted that injured witnesses are entitled to a higher degree of credence, and the testimony cannot be brushed aside lightly. It has been held in Abdul Sayeed vs. State of M. P. (2010) 10 SCC 259

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“ 28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is geneally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness.”

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30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. ”

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Manner of incidence that can be reconstructed on the combined reading of the testimony of the witnesses and the evidence on record, is that the sudden incidence took place, when Churaman Mahto started ploughing the field which was objected to by the informant. There does not appear to be a pre-concerted plan or design which

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culminated in the incidence. Ploughing of the field triggered the incidence and the passions were aroused and in the assault the informant and his family sustained injuries. As discussed above it was Churaman Mahto who had inflicted injury with sword on the vital part of the body of the informant. Informant has in no uncertain terms deposed this that he was given the said blow by Churaman Mahto and Nepal Mahto inflicted knife injury over his chest which was stopped by hand resulting in severance of his finger.

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Matter for consideration is that whether on these evidence charge of offence under Section 307 is proved beyond the shadow of all reasonable and probable doubt. In order to appreciate the law on the point it will be desirable to extract Section 307 which reads reads as follows:

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“307. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.”

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In order that Section 307 IPC, should attract in a particular case, it is necessary to establish that if the victim had met his death, the offence would have been one under Section 302 of the IPC. Intention or knowledge that the act of the accused could result in death for which he could be guilty of for the offence of murder is the essence of offence under Section 307. Where the accused person inflict multiple injuries over the body including the vital part thereof, he must be credited with intention or knowledge of the likely consequence of his act being the death of the injured. If the victim survives the injuries, it shall not be open to the accused to plead that he had no such a requisite intention. It has been held in Hari Mohan Mandal v. State of Jharkhand , (2004) 12 SCC 220 where in it has been held that it is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.

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Considering the nature of injuries inflicted, it is consistent evidence that appellant- Churaman Mahto had inflicted injury on the head of the informant and appellant Nepal Mahto had inflicted knife blow on his chest which was stopped by the informant. It has been deposed to by the informant that he was able to stop the injury by knife inflicted by Nepal Mahto with his hand, resultantly his finger was cut off. Both these appellants can be credited with the intention or knowledge of causing death. Therefore, conviction of both these appellants under Sections 307 of the IPC is affirmed. On the point of sentence it has been submitted by the learned counsel on behalf of the appellants that appellant, Churaman Mahto had undergone imprisonment of about 2 years 6 days whereas appellants, Nepal Mahto and Thuambi Mahto had

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undergone imprisonment of about 5 months 21 days. Appellant, Arjun Mahto had undergone imprisonment of more than 2 years. There is no past proved conviction against them.

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21 . With regard to the other appellants, this court is of the view that they cannot be convicted for the offence under section 307 of the IPC by constructive liability under Section 149 of the IPC. In the present case there can be no difficulty to draw an inference on the basis of evidence on record, that incidence was unpremeditated and took place on the spur of moment when the informant objected to the ploughing of field by Churaman Mahto. There is no evidence to support the charge that the accused persons had formed an unlawful assembly to make an attempt on the life of the informant. Therefore section 149 of the IPC and each of the accused shall be liable for their individual act and each of the accused persons are guilty.

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Mariadasan v. State of T.N. , (1980) 3 SCC 68 :

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The whole fight started suddenly on the spur of the moment in a heat of passion and, therefore, the accused could only be liable for the individual acts committed by them. For these reasons, therefore, we agree with Mr Singh that there is no evidence to support the conviction of rioting under Sections 149, 148 or 147 of the IPC as recorded by the High Court.

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Both the appellants, Churaman Mahto and Nepal Mahto are sentenced to undergo imprisonment RI for 3 years under Section 307 IPC and fine of Rs.5,000/- by each and in the event of default of payment of fine, SI for one month by each.

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Accordingly, appellants, Churaman Mahto and Nepal Mahto are concerned, their bail is cancelled and they are directed to surrender before the learned Trial Court so as to serve remaining part of the sentence.

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In this view of matter, the other two appellants Thambhi Mahto@ Thambi Mahto and Arjun Mahto are held guilty for the offence of causing hurt by dangerous weapons or means Section 324 of the IPC. Considering the nature of offence and the overall facts and circumstance of the case substantive sentence already undergone by them shall meet the ends of justice. Their sureties are accordingly discharged from the liabilities of their bail bond.

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Judgment of conviction and sentence for minor offences as well as for the offences of rioting against all the appellants is set aside.

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Appeals are accordingly dismissed with modification of finding and sentence. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.

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(Gautam Kumar Choudhary, J.)

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Jharkhand High Court, Ranchi Dated 10.04. 2024. sandeep/

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Arjun Mahto v. State of Jharkhand

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Arjun Mahto v. State of Jharkhand

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