Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.B.) No. 235 of 2003 (Against the judgment of conviction dated 30 th January,2003 and order of sentence dated 31st January, 2003 passed by the Additional Sessions Judgecum Fast Track Court no.5,Deoghar in connection with S.T. Case No. 182 of 1998/322 of 2002 arising out of Madhupur P.S. Case no. 89 of 1998, G.R. no. 218 of 1998) 1. Shyam Lal Mandal S/o Pukka Mandal 2. Dasrath Mandal So Shyam Lal Mandal Both resident of village Harila, P.S. Madhupur District Deoghar …… Appellants -Versus- The State of Jharkhand ...... Respondent ------ CORAM : HON’BLE MR. JUSTICE RATNAKER BHENGRA ------ For the Appellants : Mr.Kailash Prasad Deo, Mr. Vikash Kumar, Advocates For the Respondent : Mr. Satish Kumar Keshri,A.P.P. For the informant : Mr. Ranjan Kumar Singh, Advocate C.A.V. On:
25. 11.2016 Delivered on:
28. .07.2017 RATNAKER BHENGRA,J This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 30.01.2003 and 31.01.2003 respectively passed by Shri Prem Prakash Pandey, Additional Sessions Judgecum Fast Track Court no.5, Deoghar in S.T. No. 182 of 1998/ 322 of 2002 whereby and whereunder appellants were sentenced to undergo R.I. for seven years under Section 307/34 of the Indian Penal Code, R.I. for three years u/s 324 IPC, R.I. for one year u/s 323 I.P.C. and S.I. for one month u/s 341 I.P.C. and all the sentences were ordered to run concurrently. 2. The prosecution case, based on the fardbeyan of the informant Vinod Kumar Mandal or P.W.4, is that on 16.5.1998 at about 5 p.m. while he was going to Dhamni market by his bicycle and reached near the Shiv Temple, situated in western side of his village he saw Shyamlal Mandal and Dashrath coming from the side of Dhamni market and they purposefully dashed against him. He fell down from his bicycle, then accused Shyamlal Mandal caught hold of him and ordered his son Dashrath Mandal “ what are you looking at, finish him”. Thereupon accused Dashrath Mandal took out a knife from his waist and caused first blow upon his head and then he inflicted second blow on his chest and 2 third blow on his hand. Thereupon, accused Shyam Lal Mandal again ordered to attack on his neck and after passing this order he felled him on the earth. Then accused Dashrath Mandal attacked on his neck with knife. The said knife was caught hold of by the informant which resulted in cut injury on his right hand finger. Then again accused Dashrath Mandal attacked on his neck and informant again caught hold of the knife with his left hand and this time he received cut injury on left hand. Having heard his alarm (hulla) villagers Ramu Mandal, Girdhari Mandal and Ashok Mandal rushed there. Seeing the villagers, both accused persons that is both father and son fled away threatening that they will see him again.
3. On the basis of his fardbeyan Madhupur P.S. Case no. 89 of 1998 was registered and after investigation charge sheet was submitted u/s 323/324/341 and 307 r/w Section 34 I.P.C. Thereafter, cognizance was taken and case was committed to the court of Sessions and registered as S.T. No. 182 of 1998/ 322 of 2002. The charge was framed against the accused to which they pleaded not guilty and claimed to be tried.The prosecution examined altogether six witnesses and on the conclusion of the trial the learned trial court convicted and sentenced the appellants as aforesaid. 4. P.W.1 is Ramu Kole. He is not named in fardbeyan. He is mason by profession and resident of village Dhamari. He deposed that on the day and time of occurrence he was working as a mason in the village Haril. Having heard the alarm he went near Shiv temple and saw the accused persons who were holding the informant. Accused Shyam Lal Mandal thrashed the informant and accused Dashrath Mandal assaulted with knife. Blood was oozing from the body of informant. Injuries were caused on the head, chest and both hands of the informant. He further deposed that when informant caught hold of the knife he received injuries on his hands and finger. 5. P.W. 2 is Pappu Mandal S/o Sobha Mandal aged about 12 years and student of class 8th. This witness is a child witness and no argument has been advanced by the appellant counsel to disbelieve his evidence. He is resident of same village. He deposed that at the time of occurrence he was coming from his school while his cousin Vinod Kumar Mandal (informant) was going to market for selling rice. Near the temple he saw that both accused persons were coming by bicycle and accused Shyam Lal 3 Mandal dashed against the bicycle of informant and accused Shyam Lal Mandal knocked the informant on the ground and accused Dashrath Mandal assaulted the informant with knife. He raised alarm and people arrived there. 6. P.W. 3 is Ashok Mandal aged about 28 years and hailing from the village of the informant. He deposed that on the day of occurrence informant was going to Dhamni market by his bicycle and when he reached near Shiv temple accused Shyam Lal Mandal caught hold of him and accused Dashrath Mandal assaulted the informant with knife and he received injuries on his head and chest. In crossexamination, he deposed that informant is covillager. He denied that any case was lodged against him by accused persons. In para 7 he deposed that occurrence took place on 16.5.1998. He said that there are two groups in village Harila. One group is headed by Lalgovind Mandal and second group is headed by accused Shyam Lal Mandal. He also admitted that informant is grand son of Lalgovind Mandal. His house is situated 150 yards from the house of informant and the Shiv Temple is situated 200 yards from his house. He deposed that at the time of occurrence he was at a distance of 150 yards from Shiv temple. Having heard the alarm he rushed to the place of occurrence and found the informant fallen on the road and his cycle was also lying on other side. He deposed that when he reached the place of occurrence he found that Ramu Kole,Ramu Mandal and others were present there. He brought the informant to his house. He was bleeding from his body. His clothes were blood stained. Bloodstains were also on the earth. After sending the informant to the hospital, he returned back to his house. 7. P.W.4 is Vinod Kumar Mandal, informant, has supported the entire case in his examinationinchief and categorically narrated the manner and mode of the occurrence committed by accused persons with him. He also proved his signature on fardbeyan. In crossexamination, he said that he is nonmatric and student of R.N.Sarraf, Deoghar school, Deoghar. He further deposed that he used to go to his house weekly, on Saturday. He further deposed that on the day of occurrence it was a Saturday. He had no knowledge about the case lodged by Kamli against him. He denied the suggestion given by defence in respect of case filed by Kamli. This witness further deposed that at the time of occurrence it was twilight. He further deposed that he was cycling an old bicycle which was dashed by accused 4 then he fell down. When he saw the blood oozing from his body, he became senseless. This witness has again denied the suggestion given by the defence that he lodged this false case only to protect himself from the Kamli's case. 8. P.W. 5 is Dr. Bishwanath Das, who medically examined the informant on 16th May, 1998 at 710 p.m. at D.C. Hospital Madhupur and found following injuries on his person: 1. Incised bleeding wound 1”x1/4”x muscle deep red in colour on left side interior part of scalp. 2. Incise bleeding wound 1/2” x 1/4” muscle deep over the palm side of left finger. 3. Incise wound 1”x1/4”x bone deep red in colour over the left middle finger. 4. Incise bleeding wound 1/2”x1/4” bone deep over the palmar side of left ring finger. 5. Incise bleeding wound 1/2”x1/6” x muscle deep on left side of chest.
6. Incise bleeding wound 1”x1/4”x muscle deep over the posterior position of right middle finger.
7. Incise bleeding wound 1/2”x1/4” x skin deep over the posterior portion right little finger. 8. Incise bleeding wound 1/2” x1/4” skin deep over the posterior portion right index finger. 9. Lacerated bleeding wound 1” x1/4” x skin deep red in colour on left shoulder. 10. Lacerated bleeding wound 1/2” x1/4” skin deep posterior on right forearm. 11. Lacerated bleeding wound 1” x1/4” x muscle deep red in colour on left side of chest. This witness proved the injury report which is marked Ext.2. In crossexamination, he deposed that injured was brought by police officer. He further said that the injuries found on injured person were not life threatening. All injuries were superficial and may be caused by fall on sharp and pointed stone chips. 9. P.W. 6, Balmiki Ojha, is the I.O. of this case. He deposed that on 16.5.1998, he was posted at Madhupur P.S. On the same day he received the written information from D.C. Hospital Madhupur to record the statement of one injured person. Accordingly he rushed there and recorded the fardbeyan of informant in presence of his father Falguni 5 Mandal and one villager Hemlal Mandal. These two persons have also signed on the fard beyan. He proved their signature which were marked as Ext.3 and 3/1. The fardbeyan has been marked Ext.4 Thereafter he issued requisition letter by preparing injury report of the injured, which is marked Ext.5. He further deposed that the the formal F.I.R. was drawn by the then officerincharge Madhupur P.S. which was marked as Ext.6. He further deposed that he proceed for investigation to the place of occurrence. He gave full description of the place of occurrence. In cross examination, he deposed that oral information had come from Madhupur hospital , which was entered in station diary. He returned from hospital to police station at about 20:50 hours. He inspected the place of occurrence in the night. He had not recorded the statement of the persons of the vicinity. He had not seized the bicycle of informant. He did not see any stone chips near newly constructed Shiv temple. 10. Learned counsel for the appellants submitted that P.W.1, Ramu Kole is not named in the fardbeyan as a witness so his deposition is deceptive wherein he deposed that he has saw the occurrence, therefore since his name is not in the fardbeyan his deposition or evidence cannot be relied upon. In his crossexamination he said that he was not in visiting terms with Vinod Kumar Mandal or tried to establish that he did not know him which from the evidence of P.W.2 is falsified who said that P.W.1 used to work in their house. So P.W.1 cannot be considered as independent witness and by giving misleading statement in his deposition he tried to prejudice the case against the appellants. Appellant's counsel further said that in the deposition of P.W.1 it is mentioned that there were 1012 injuries in that case there must be 1012 knife cutting or deep cutting injuries by knife since it is alleged that one of the appellants Dashrath Mandal was using a knife. P.W.2 Pappu Mandal deposed that when he saw Vinod then no one was there or surrounding him and Vinod had fallen down. He was simply unconscious so it appears from his deposition that there is no eye witness to what happened and P.W.2 himself also is not an eye witness to the occurrence. Referring to the deposition of P.W.3 Ashok Mandal he submitted that this witness mentions the names of three other persons who were standing near the place of occurrence but, amongst these three persons none of them heard the alarm made by P.W.4 or saw the assault. So even though it appears residential houses were nearby and that people living in the vicinity, no body saw the assault, hence, it is 6 doubtful as to who assailants were. As per para 13 of the deposition of P.w.3 it appears that he had only seen Vinod Mandal fallen on the ground and many persons were present there and he parted the crowd and then saw Vinod. So it seems that even P.w.3 is not a reliable witness to the assault. Learned counsel for the appellants further submitted that contradiction of the witnesses is further clear when one takes the point that in the examinationinchief P.W.3 said that he saw the assault but, in the crossexamination he says that he parted the crowd and then saw Binod fallen on the ground which clearly shows that his deposition is doubtful. Referring to the evidence of P.W.4 learned counsel submitted that when P.W.4 made alarm then Ramu Mandal , Girdhari Mandal, Ashok Mandal, Ramu Kole, Pappu Mandal and others came and took him to the hospital and , subsequently, fardbeyan was recorded by the police in the hospital. It is not clearly indicated by P.W.4 whether any of these persons who came on alarm have seen any of the assailants or appellants. Continuing further he argued that since it has already come that P.W.4 or the victim was already unconscious as said by P.W.2 then how PW4 has knowledge of who took him to the hospital. Further learned counsel submitted that in his examination in chief P.W.4 says that he was conscious but in his crossexamination he says that he became unconscious on seeing blood. Referring to the evidence of PW5 who is the doctor, counsel for the appellants submitted that doctor observed that all injuries were superficial and may be caused by falling on sharp and pointed 'gitti with force. Further he submitted that doctor has not said anything about the knife. He has also referred to the depositiion of P.W.6 who is Investigating Officer and submitted that as per the investigating officer, injured person had no bandages which would indicate that the injuries were not grievous in nature. Further it has come in the deposition of the investigating officer that he had made no entry in the station diary regarding the case which is very much unusual but it would indicate that there was no case as such against the appellants. He has further referred to the fardbeyan in which it has come that prior to the incident Dashrath Mandal had abused the mother of the informant for which an altercation had taken place and, therefore, this case has been lodged against the present appellants. On this point he has also referred to deposition of PW 3 who in his crossexamination has said that he does not know whether 7 the daughter of Shyamlal Mandal had lodged a case against Binod Mandal, informant and others. Moreover, he has also pointed out to the deposition of P.W.4 at paragraph no.7 there is a reference to the case lodged by Kalmi Devi against the side of the informant. Counsel for the appellants, however, submitted that this case was lodged in the year 1998 and his deposition was taken in the year 2000 so he was obviously knowing about the occurrence. 11. Regarding Section 307 IPC learned counsel for the appellants submitted that if at all there was an attempt to murder and knife was being used then there was no need to give superficial and no life threatening injuries, even two or three grievous injuries would have been sufficient. So seeing the nature of injuries also even if it is said that an assault was made , though not admitted, is sufficient to indicate that there was no attempt to murder. At the end counsel for the appellants submitted that it is purely a concocted and manufactured allegation based on prior enmity and it is simply a case of the informant riding his bicycle and falling down in a construction material (gitti) and injuring himself on various parts of the body and , hence, no case is made out against the appellants. 12. On the other hand learned counsel for the informant submitted that all the offences are made out including offence u/s 307 IPC because motive or intention was there along with injuries. The evidence of doctor in the injury report which is Ext.2 states eleven injuries of which injury no.1 was incised bleeding wound 1” x 1/4” muscle deep and red in colour on left interior part of scalp which is on the vital part of the body. He further submitted that if the injuries are incised it means knife was being used so there is no question of being injured by falling on the ground. Further he said that appellants counsel has himself admitted that there was enmity between the parties so motive or intention was clearly present. Moreover, P.W.4 being an injured witness is the most competent witness. 13. Learned counsel for the State, A.P.P. has also briefly stated main points of the various witnesses and submitted that it is clear that injury was there and that too repeated injury on the various parts of the body ranging from the head , chest and right and left hand of the informant. The fingers of the right and left hand was cut when he tried to defend 8 himself from the assault made by Dashrath Mandal, if not the injuries would have been more fatal. He further submitted that doctor P.W.5 proved his injury report which is Ext.2 as well as the I.O. has proved the requisition for medical treatment which is Ext.5. He further submitted that the motive or intention was established because it seems to be admitted also on the basis of fardbeyan that certain enmity was there between the parties and there is also reference being made to the offence against the daughter of Shyam Lal Mandal. So because of this prior enmity seeing the informant alone the appellants assaulted him with murderous intention and caused him many repeated injuries on various parts of the body. P.W.4 is himself an injured witness and it has already been held by the Hon'ble Apex Court that an injured witness is the most reliable witness, so his testimony is believable and credible. In support of the evidence of PW4 he submitted that there is also the evidence of PW1,2 and 3 who have also seen the assault so evidence against the appellants are further strengthened. Referring to the evidence of the doctor he submitted that it is clear from the doctor's report that assault was repetitive and on vital part of the body. He further referred to the deposition of the I.O. and submitted that he has proved the fardbeyan which is Ext.4 and signatures of the other signatories on the fardbeyan are Ext. 3 and 3/1. Finally, learned A.PP. has referred to para 27 to 28 of the judgment and said that the learned court below has concluded that the injuries are sufficient to cause death which may be at variance with the doctors opinion but it is the opinion of the court that matters based on all the evidences and reasonings and found the appellants guilty of the offences alleged. FINDINGS: 14. In this case the informant PW4, or Vinod Kumar Mandal is an injured eye witness. He has alleged the assault by the appellants wherein he was dashed against on his bicycle, whereby he fell down and he was then assaulted by the appellants. Shyam Lal Mandal held him while, his son Dashrath Mandal assaulted him with knife. PW5 or Dr. Bishwanath Das had examined the injured person, PW4, and listed 11 injuries. However, he observed that all the injuries were superficial and were not life threatening. Then the question may be asked that inspite of so many injuries and the knife being used, there was no life threatening injury, hence, intention may have been to simply harm not to kill or murder. 9 15. Apart from the injured eye witness, there are three other eye witnesses to the assault. PW1 Ramu Kole, PW2 Pappu Mandal, PW3 Ashok Mandal have also witnessed the assault. PW1 and PW3 seem to be reliable witnesses. PW2 or Pappu Mandal happens to be child witness and it is difficult to disbelieve him. It is well accepted that child witness is very often truthful and reliable. Hence, the evidence of the injured eye witnesses, PW4, Binod Mandal who is also the victim is fully supported and corroborated by the evidence of the doctor , PW5. The evidence of these two are further corroborated and supported by other eye witnesses. 16. Learned counsel for the appellant has cast some doubt on the evidence of PW3 and submitted that P.W.3 had parted the crowd and then saw the informant PW4 in an injured condition. Even if the evidence of PW3 is discounted, the evidence of the injured victim himself and evidence of PW1 and PW2 who happens to be the child witnesses are still of much weight and significance.
17. The fact that the investigating officer had recorded the fardbeyan of the informant victim in the hospital also lend support that assault on PW4 had surely taken place and how and where and by whom it had been committed is established by PW4 himself and the injuries sustained by the informant victim have been corroborated by the doctor. 18. Learned counsel for the appellant argued that there was some enmity from before and that there is reference that appellant namely Dashrath Mandal had abused the mother of the informant victim prior to assault, for which the altercation had already taken place earlier. But, this would not be an excuse for any fresh assault being made whatsoever and particularly in the manner it was made. He has further submitted that offence u/s 307 IPC is not made out. I find from the evidence of doctor that all the injuries were superficial and also not life threatening. In this context it may be noticed that in the fardbeyan it has come that Shyam Lal Mandal had ordered his son Dashrath Mandal “that what are you looking at, finish him”. It seems that may be the said Dashrath Mandal had no intention to inflict any injury on the victim but was standing there and only when he was goaded on by his father he assaulted the victim. The nature of injuries and the initial reluctance it seem to indicate that he did not assault the victim Binod Mandal in a very vicious manner or with intention to kill and 10 therefore, in spite of their being eleven injuries and that to with a knife , all injuries have been observed to be superficial and not life threatening. Otherwise, one or two injuries which were grievous and serious in nature would have been sufficient to kill the person, hence, the conviction u/s 307 IPC is not made out and set aside. 19. Therefore, having gone through the arguments of the counsels, records of the case and for the aforesaid reasons, the judgment of conviction dated 30.1.2003 passed in S.T. Case No. 182 of 1998 / 322 of 2002 for the offence u/s 323, 324 and 341 IPC are upheld. However, the conviction u/s 307 IPC is not sustained. The incident of assault is of the year 1998 and we are in the year 2017, almost 19 years have passed and the appellants have faced much hardships and rigours of trial. The sentence U/Ss. 323/324 and 341 IPC is reduced to six months with period of custody they have already spent in jail being set off against the reduced sentence of six months. They are further imposed a compensation of Rs. 5000/ each to be paid to Vinod Kumar Mandal,who was the injured victim. If this compensation is not paid, further Simple Imprisonment for one month will further be undergone by the appellants. 20. Appellant's bail bonds are cancelled and the concerned or successor court below is directed to take all necessary steps as per law so that the appellants may serve out the remaining sentence. 21. Accordingly, this appeal is dismissed with above modification in conviction and in sentence. (RATNAKER BHENGRA,J) Jharkhand High Court,Ranchi dated: 28 .07.2016(Nibha)/NAFR