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2018 Supreme(Jhk) 1864
IN THE HIGH COURT OF JHARKHAND AT RANCHI
KAILASH PRASAD DEO, J.
Uttam Mahato, S/o Late Somar Mahato - Appellant
Versus
The State of Jharkhand - Respondent
Cr. Appeal (SJ) No.212 of 2004
Decided On : 21-08-2018
For the Appellant :Ms. Madhulika Dasgupta, Advocate Mrs. Jasvinder Mazumdar, Advocate.
For the State : Mr. Shekhar Sinha, Additional Public Prosecutor.
Headnote:
Indian Penal Code,1860 - Section 304 Part II - Criminal Procedure Code,1973 - Section 162 - Payment Of Fine - Punishment - Case is based upon of informant recorded by Police officer wherein informant has alleged that at around while his was returning with his rickshaw to his house and as soon as he reached near house informant saw some thorns on his way- Then asked who has done this- Thereafter suddenly having his hand assaulted on his head causing bleeding injury and remained inserted in head of - Thereafter assaulted by means different parts of body and in meantime on brawl co-villagers came who have witnessed occurrence- informant has claimed that he has also witnessed occurrence as he was first to reach place of occurrence before arrival of co-villagers there- Both accused persons fled away leaving there –Held assault took place in front of house or assault took place in front of house as these houses are not contiguous to each other- These three witnesses have categorically stated that house and house is at a distance of has categorically stated that occurrence took place in front of her house as such considering inconsistent evidence which is contradictory in nature this Court is of view that place of occurrence has not been proved by prosecution- Court has also found that initial information was given by Police with respect to commission of a cognizable offence and on basis of same Police came to place of occurrence- This has been admitted by almost all prosecution witnesses but said statement disclosing a cognizable offence before Police has not been brought on record as such present First Information Report Court has further found that non-examination of Investigating Officer under aforesaid background has caused serious prejudice to appellant could not cross-examined Investigating officer with respect to such vital lacunae and contradiction in prosecution case statement recorded sufficient to prove that appellant has falsely been implicated in this case as his father had a litigation with deceased- Appeal allowed
JUDGMENT :
1. Heard Ms. Madhulika Dasgupta assisted by Mrs. Jasvinder Mazumdar, learned counsels for the appellant and Mr. Shekhar Sinha, learned Additional Public Prosecutor appearing for the State.
2. The instant Criminal appeal is directed against the judgment of conviction dated 5th January, 2004 and the order of sentence dated 6th January, 2004, passed by the learned Additional District and Sessions Judge-VIII, Dhanbad, in Sessions Trial No.229 of 1989, whereby the sole appellant, Uttam Mahato has been convicted for the offence committed and punishable under Section 304 Part II read with Section 34 of the Indian Penal Code and awarded rigorous imprisonment for 5 years and also a fine amount of Rs.1,000/-and in default of payment of fine, to further undergo simple imprisonment for three months.
3. The prosecution case is based upon ‘fardbeyan’ of the informant, Jhari Mahto (P.W.1) recorded by the Police officer, wherein, the informant has alleged that at around 7.00 p.m. in the night on 04.09.1984, while his uncle, Daso Mahto was returning with his rickshaw to his house and as soon as he reached near the house of Somar Mahto, the informant saw some thorns on his way. Then Daso Mahto asked, who has done this. Thereafter, suddenly Uttam Mahto, having tangi in his hand, assaulted Daso Mahto on his head, causing bleeding injury and the tangi remained inserted in the head of Daso Mahto. Thereafter, Somar Mahto assaulted Daso Mahto by means of lathi on different parts of the body and in the meantime, on brawl, co-villagers, Bhola Mahto, Dharam Mahto, Bachan Mahto etc., came, who have witnessed the occurrence. The informant has claimed that he has also witnessed the occurrence, as he was first to reach the place of occurrence before arrival of co-villagers there. Both the accused persons fled away, leaving tangi there. The informant has claimed that the accused persons, with an intention to kill his uncle, Daso Mahto, assaulted him by means of tangi, which remained in the head of his uncle.
On the basis of the aforesaid 'fardbeyan' of Jhari Mahto, informant, the Police instituted First Information Report bearing Topchanchi P.S. Case No. 132 of 1984 dated 03.09.1984 corresponding to G.R. No.788 of 1984 under Sections 324/307/323 of the Indian Penal Code against both the accused persons.
4. After investigation, the Police submitted charge-sheet vide No.109 of 1984 dated 30.11.1984 under Sections 302/34 I.P.C. against both the accused persons, Uttam Mahato and Somar Mahato.
5. The cognizance of the offence has been taken vide order dated 30.01.1985 and the case has been committed to the Court of Sessions vide order dated 08.06.1989. The charge has been framed against both the accused persons, Uttam Mahato and Somar Mahato on 4th September, 1992, under Sections 302/34 I.P.C., to which the accused persons pleaded their innocence and thus, they were put under trial.
6. During pendency of the trial, co-accused, Somar Mahato died, as such, his case has been dropped vide order dated 21.01.2003.
7. The prosecution has examined altogether nine witnesses and also exhibited three documents and one material exhibit to prove its case beyond all reasonable doubt against the accused/appellant.
Jhari Mahto, informant of the case, has been examined as P.W.1, Bhola Mahto has been examined as P.W.2, and Dharam Prasad Mahato has been examined as P.W.3. All these three prosecution witnesses have been declared hostile by the prosecution though they are named in the First Information Report, as eye-witnesses to the occurrence.
Bachan Mahto, brother of the deceased (Daso Mahto) has been examined as P.W.4. This witness has also claimed himself to be an eyewitness to the occurrence. Mahavir Pramanik has been examined as P.W.5 and this witness has also claimed himself to be an eye-witness, who came after the occurrence. Gangia Mahtain, wife of the deceased has been examined as P.W.6 and she is an eye-witness to the occurrence, as claimed by her. Narain Singh, a Police
