IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 189 of 2017 1. Siyaram Mirdha 2. Jalar Mirdha 3. Badami Devi ..... Petitioners vs. 1. Dhananjay Kunwar 2. Nirmal Kunwar 3. Ghutlu Kunwar 4. Premlal Kunwar 5. Bhola Kunwar 6. Video Kunwar 7. Lobin Kunwar 8. Premlal Mirdha 9. Manju Kunwar 10.Anit Kunwar 11.Chandan Kunwar 12.Fullkumari Devi 13.Shanti Devi 14.Surji Devi 15.Sudmiya Devi ... Opposite parties CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH HON’BLE MR. JUSTICE B.B.MANGALMURTI For the Petitioners : Ms. Amrita Sinha, Adv. For the Opp. Parties : M/s. Nivedita Kundu Saibal Mitra, Advs. 9/3.1.2018 Heard learned counsel for the parties. Petitioners have sought leave to appeal against the judgment of acquittal dated 26th November, 2016 passed by learned Additional Sessions JudgeIV, Godda, whereby the accused persons/opposite parties herein have been acquitted of the charges under Sections 148, 341/149 & 307/149 read with Section 34 of Indian Penal Code in Sessions Trial No. 138/2011. The case of the parties as borne out from the F.I.R and the evidence on record, inter alia, discloses that there was a case and counter case between the informant party and opposite parties. The instant trial is based upon the F.I.R lodged by the informant, Mohar Lal Mirdha (P.W.3) at about 9:00 hours on 11th February, 2010 recorded by A.S.I of Mahagama Police Station being Mahagama P.S. Case No. 13/2010. Informant, inter alia, alleged that on 11th February, 2010 at about 06:00 P.M in the evening while he was sitting outside his house, 2. his father Ishwar Mirdha (P.W.1), maternal brother Siyaram Mirdha, Badami Devi (P.W.2), Alwa Devi and Jalar Mirdha (P.W.5) were also standing there. Meanwhile, these accused persons by forming unlawful assembly armed with deadly weapons, came there and started assaulting them. Accused, Dhananjay Kunwar gave a Gadasa blow on the head of the informant and Manju Kunwar gave a Gadasa blow on the forehead of Badami Devi (P.W.2). Accused, Anit Kunwar gave a Lathi blow to Ishwar Mirdha (P.W.1). Badami Devi and Ishwar Mirdha got injured and blood started oozing out from their injury. Thereafter all accused persons started pelting bricks and stones. Badami Devi became unconscious. On alarm, villagers assembled and the accused persons fled from the scene. Mahagama Police reached on the place of occurrence after sometime and sent the injured Siyaram Mirdha, Alwa Devi, Badami Devi, Ishwar Mirdha, Jalar Mirdha including the informant to Sadar Hospital, Godda by police jeep. Informant alleged that the accused persons were in illegal possession over 17 Kathas of lands of the informant after constructing their houses and were residing therein. Cause of occurrence was land dispute. Chargesheet was filed upon investigation bearing no. 73/2011, under Sections 147, 148, 149, 341, 323, 324 & 307/34 of the Indian Penal Code against all the accused persons. Cognizance was taken by C.J.M., Godda and the case was committed to the Court of Sessions. Charges were framed against the accused persons under Section 148, 341/149 and 307/149 read with Section 34 of the Indian Penal Code by learned Court of Sessions. Accused persons pleaded not guilty to the charges explained and claimed to be tried. The prosecution examined the following nine witnesses. Prosecution Name of prosecution Description witness no. witness P.W.1 Ishwar Mirdha Injured and father of the informant P.W.2 Badami Devi Injured of the case P.W.3 Mohar Lal Mirdha Informant himself P.W.4 Raj Kishore Kunwar Villager P.W.5 Jahaliya Mirdha Son of the informant P.W.6 Dr. Sudhir Kumar Choudhary Medical Officer, 3. who examined to the informant and injured P.W.7 Kango Kunwar Villager P.W.8 Kaila @ Gulam Rasool Villager P.W.9 S.I Anil Kumar Jha I.O of the case It also adduced number of documentary evidences as under: (i) Ext.1: Injury report of Badamiya Devi (P.W.2) (ii) Ext.1/1: Injury report of Jailar Mirdha (P.W.5) (iii) Ext.1/2: Injury report of informant (P.W.3) (iv) Ext.1/3: Injury report of Ishwar Mirdha (P.W.1) (v) Ext.2: Endorsement of fardbeyan (vi) Ext.2/1: Writing of fardbeyan (vii) Ext.2/2: Formal F.I.R In defence, accused persons have filed three documents in their support which are as follows: (i) Ext.A: Certified copy of F.I.R of Mahagama P.S. Case No. 14/2010, which revealed that written information was given alleging that on 11th February, 2010 at 07:00 P.M. in the evening while he was standing at the door, Mohar Lal Mirdha informant of the instant F.I.R (Mahagama P.S Case No. 13/2010), Pyarelal Mirdha (brother of the informant), Bajrangi Mirdha (son of Rameshwar Mirdha), Kisan Mirdha (son of Bajrangi Mirdha), Ashok Mirdha (nephew of informant of the case), Jailar Mirdha (son of informant), Dhurkeli Mirdha, Panchayati Mirdha and Rama Mirdha, lashed with Lathi, Spear, Sabble, Gainta, Farsa and arrow bow reached there and asked to vacate house. On being objected, Mohar Mirdha gave Lathi blow to Dhananjay Kunwar. When his brother Anit Kunwar came to save him he was also assaulted by the accused persons. When the wife and daughterinlaw of Dhananjay Kunwar reached for rescue, they were also dragged and their necklaces were snatched. According to them, the informant party wanted to dispossess them forcibly from their houses. (ii) Ext.B: Certified copy of chargesheet filed by police in connection with Mahagama P.S.Case No. 14/2010 against the informant of the present case and his associates. (iii) Ext.C: Certified copy of Parcha of MouzaSarwan, 4. Jamabandi No. 26, Dag No. 15. After conclusion of trial, learned trial court has analysed the material evidence adduced on behalf of the prosecution as well as defence. P.Ws. 1, 2, 3 and 5 were found injured witnesses, while P.Ws. 4, 7 and 8 are villagers and independent persons, who have not supported the case of the prosecution. P.Ws. 6 and 9 are officials witnesses. P.W. 6 is the Medical Officer, Dr. Sudhir Kumar Choudhary, who had examined P.W.2, Badami Devi, P.W.3, Mohar Lal Mirdha (informant), P.W.1, Ishwar Mirdha and Jahaliya @ Jalar Mirdha. He deposed about the nature of injuries found on the body of these four persons. There was one incised wound 2”x1/2”X skin deep over left parotid region in front of left ear on Badami Devi, (P.W.2), which was caused by sharp cutting weapon and was in the nature of simple injury. One lacerated injury was found on Jalar Mirdha 2” X 1/2” X skin deep on right parietal region, which was caused by hard and blunt substance. Nature being simple. PW.6 on examination of Mohar Lal Mirdha (P.W.3 and informant) found the following injuries: 1. Lacerated wound 3” X 1/2” X skin deep on left parietal region 2. Swelling of right shoulder joint. 3. Abrasion 1/4” X 1/4” over lower lip right side. All injuries were caused by hard and blunt substance. In respect of injury no. 2, the Medical Officer found fracture on the right shoulder on the basis of Xray report which was termed as grievous, while injury nos. 1 and 3 were found to be simple. He also examined Ishwar Mirdha (P.W.1) and found the following injuries: 1. Lacerated wound 1.5” X 0.5 X skin deep over right knee joint. 2. Abrasion 1.5” X 0.5” over right leg. 3. Lacerated wound 1.5” X 0.25” X skin deep over occipital region. All injuries were caused by hard and blunt substance. Nature of injury nos. 1 & 3 were simple while injury no. 2 was grievous. XRay of knee shows fracture. 5. This witness has proved his injury report as Ext.1, 1/1, ½ & 1/3. Learned Sessions Judge, however, refused to rely upon his report in relation to the nature of injuries shown as grievous in respect of Mohar Lal Mirdha and Ishwar Mirdha as XRay report/plate were not produced during trial. P.W. 9 was the Investigating Officer, who recorded the statement of witnesses also described the place of occurrence, which was field adjacent to house of Bajrangi Mirdha having area 17 Kathas, 6 Dhur. In his crossexamination, he denied recording the statement of neighboring persons of the place of occurrence and had not taken blood sustained soil from the place of occurrence. He denied speaking by P.W.3 (informant) that Manju Kunwar was holding Gadasa in his hand; Video Kunwar was holding Gainta in his hand; Anit Kumar was holding Lathi in his hand and all others were holding Lathis. He also denied speaking by the informant that Dhananjay Kunwar had given blow from the back side of Gadasa. He also denied speaking by P.W.1 Ishwar Mirdha relating to the allegation of assault by Anil Kunwar and Manju Kunwar. Learned trial court observed that defence had adduced Ext.C Parcha of the land of MouzaSarwa to prove ownership of the disputed land while Exts.A&B were the injuries sustained on the accused persons in the present F.I.R. On scrutiny of material evidences and deposition of prosecution witnesses, learned trial court was of the opinion that P.Ws. 4, 7 and 8 independent witnesses have not supported the prosecution case, which rested only on the statement of the informant and his family members. It also observed that the statement of P.Ws. 1, 2, 3 and 5 were not consistent to each other and the prosecution case. These witnesses had escaped to mention the presence of many other accused persons facing trial. P.Ws. 1 and 5 have not corroborated the case of prosecution on the point of injury to other alleged injured. P.W.2 has stated names of only 9 accused persons and had escaped mention of any female accused 6. persons, while P.W. 5 had stated names of 5 accused persons. Therefore, P.Ws. 1, 2 and 5, none of them have stated complicity of 15 accused persons in the occurrence. None of these witnesses have stated about pelting stone by the accused persons. The trial court also found that the place of occurrence was in front of house of informant, but the evidence of P.W.9Investigating Officer showed that there was no house of informant party situated in the boundary of the place of occurrence. P.W. 4, on the other hand, stated that the informant party had gone to the house of accused party and asked them to vacate the house, upon which both the parties started quarrel. Based on these findings, learned trial court came to the opinion that when the number of offender were 15 and number of injured persons were 4 and yet no serious injury was found to the injured, then it cannot be said that the accused persons had intention to cause murder of informant or P.W.1 or P.W.2 or P.W.5. Therefore, no offence under Section 307 of the I.P.C. is made out. Learned trial court also did not find any evidence to substantiate the charges under Sections 148 or 341 of the Indian Penal Code. In the absence of XRay report/plate, the prosecution had failed to prove any grievous injuries to the informant and his party. Since both the parties are claiming disputed lands the trial court was of the view that some simple injuries on the informant and his party may have been caused due to exercise of the right of private defence of property. Injuries may have been caused due to free fight between the parties. Learned counsel for the petitioners has assailed the findings by taking us through the evidence on record. She has questioned the opinion of learned trial court on the findings related to the place of occurrence, manner of occurrence and injuries inflicted on the informant party which was borne out from the statement of P.W.6 i.e, Medical Officer and injury report as Exts. 1, 1/1, ½ and 1/3 adduced by him. According to her, the findings recorded by learned trial court has resulted in failure of justice and therefore leave to appeal may be granted, so that the entire evidence on record may be properly 7. scrutinized by the appellate Court as per law. Learned counsel for the opposite parties have defended the impugned judgment. It is submitted that the findings rendered by learned trial court are after proper appreciation of material evidence on record and are well reasoned which did not suffer from any vital error. If the prosecution story was inconsistent and there were vital contradictions in the statement of prosecution witnesses and that none of the independent witnesses supported the case of the informant, learned trial court had no other option than to give benefit of doubt to these accused persons. The impugned judgment, therefore, does not deserve to be interfered with in appeal. The petitioners therefore do not deserve leave to appeal against the judgment of acquittal. Learned counsel for the opposite parties has also questioned the locus of petitioner no. 1 as he does not come within the definition of victim in terms of Section 2(wa) of Cr. P. C. This argument has been countered by learned counsel for the petitioners on the ground that the F.I.R also described injuries upon him though he was not examined by the prosecution. However, rest of the two petitioners, namely, Jalar Mirdha and Badami Devi were the victims themselves of the assault by the accused party and were examined by the Medical Officer as well. We do not find much substance in this submission of the opposite parties. On perusal of the impugned judgment and the material evidence on record, we are of the considered view that leave to appeal should be granted to the petitioners. We, however, refrain from expressing any opinion on the merits of the case of the parties, lest it may cause prejudice to their case before the appellate Court. Accordingly, the instant petition stands allowed. (Aparesh Kumar Singh,J) (B.B.Mangalmurti,J) jk