Aafindra Mahto vs State of Jharkhand

Heard, Ms. Vani Kumari, learned Amicus Curiae appearing for the appellants and Mr. Sanjay Kr. Srivastav, learned Addl. Public Prosecutor

appearing for the State.

The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 23.12.2003, passed by learned 5th

Addl. Judicial Commissioner, Fast Track Court, Ranchi, in S.T. No.136 of 2000 (T.R. No.51 of 2003), whereby all the appellants have been held guilty

for the offence punishable under Section 147 I.P.C. and awarded rigorous imprisonment for six months each and appellant Nos.1 to 4, namely,

Aafindra Mahto, Jagat Mahto, Shankar Mahto and Ram Tahal Mahto have been convicted for the offence punishable under Sections 323/34 I.P.C.

and awarded rigorous imprisonment for six months each and appellant no.5, Balgovind Mahto has been held guilty for the offence punishable under

Section 325 I.P.C. and awarded rigorous imprisonment for three years.

The prosecution case is based upon the 'fardbeyan' of Jalindra Mahto (P.W.2), an injured, in presence of his brother, Fulchand Mahto, recorded by

A.S.I., Narayan Ram at Ratu Hospital at 8.00 a.m. on 04.03.1999 (Thursday), alleging inter-alia, he is aged about 37 years, belongs to 'Koiri' Caste

and doing cultivation. It is alleged that, on 03.03.1999 at around 8 p.m., the informant along with co-villager, Balchand Mahto went to the house

of Fulchand Mahto and were taking meal. In the meantime co-villager Shankar Mahto came and he said that you people are doing black magic and

thereafter Shankar Mahto having lathi in his hand, assaulted the informant, on his head causing bleeding injury. In the meantime, Bal Govind Mahto

came and also assaulted the informant by means of lathi, on his left hand causing fracture. Due to assault made upon the informant, the informantÂ

fell down. In the meantime Jagat Mahto, Ram Tahal Mahto and Afindra Mahto, assaulted brother of the informant, Fulchand Mahto by means of lathi

causing injury over his neck. From which blood was oozing, but the informant could not saw the weapon, through which such injury was caused. The

informant has alleged, that both brothers fell down and became unconscious and because of the night and nonavailability of the means, they could not

go to the police station and in the morning, they came to the Ratu Hospital, where treatment is going on 4. On the basis of the aforesaid 'fardbeyan' of

Jalindra Mahto, informant, the Police instituted First Information Report bearing Ratu P.S. Case No. 23 of 1999Â dated 04.03.1999 corresponding to

G.R. No.496 of 1999, under Sections 341, 323, 325/34Â of the Indian Penal Code.

After investigation, the Police submitted charge-sheet vide No.16/99 dated 31.03.1999 under Sections 147, 148, 149, 325, 324, 307 of the Indian

Penal Code against all the accused persons. .

The cognizance of the offence has been taken vide order dated 22.04.1999and the case has been committed to the Court of Sessions vide order

dated 16.02.2000. The learned court below has framed the charge against all the five appellants/accused persons under Section 147 I.P.C., and

charge under Sections 323/34 I.P.C. against the appellants/ accused, Jagat Mahto, Ram Tahal mahto and Afindra Mahto and charge under Sections

307/34 I.P.C. against the appellants/accused, Shankar Mahto and Bal Govind Mahto on 09.08.2000, to which the appellants pleaded not guilty and

claimed to be tried, hence they were put under trial.

The prosecution, in order to prove its case, has examined altogether ten witnesses.

 Motilal Mahto has been examined as P.W.-1, Jalindra Mahto, informant of the case, has been examined as P.W.-2, Srimati Devi, w/o Fulchand

Mahto has been examined as P.W.3, Fulchand Mahto another injured and brother of the informant has been examined as P.W.-4. Sobhnath Mahto,

a hearsay witness has been examined as P.W.-5, Tapeshwar Mahto, son of the informant, Jalindra Mahto has examined as P.W.6, Balchand

Mahto, an eye witness to occurrence, has been examined as P.W.-7, Suresh Mahto, a hearsay witness has been examined as P.W.8, Narayan

Ram, A.S.I., who has recorded 'fardbeyan' and investigated the case, has been examined as P.W.9, Anand Kumar Baraik, a formal witness has been

examined as P.W.10, who has proved the injury report issued by Doctor B. P. Ranjan in his writing and signature, has been proved and marked as

Exhibits 4 and 4/1 respectively.

After closure of the prosecution case, the appellants were examined under section 313 Cr.P.C. on 11.12.2003, to which, they have categorically

denied the allegations rather said that they have been assaulted by the prosecution side.

The defence has not examined any witness nor adduced any documentary evidence in support of their case.

After hearing the learned counsel appearing for the parties and perusing the record, the learned trial court has convicted the appellants/accused vide

impugned judgment of conviction and order of sentence, which has been assailed by the learned amiuc curiae appearing for the appellants in the

instant Criminal Appeal.

Ms. Vani Kumari, learned Amicus Curiae appearing for the appellants has submitted that the impugned judgment of conviction and order of

sentence is bad in law and cannot sustain in the eyes of law.

Learned amicus curiae has further submitted, that in this case Investigating officer has not been examined and from perusal of evidence of P.W.1

(Motilal Mahto) in Para-2, where he has categorically stated that in the morning 'Darogaji' recorded his statement, statement of his mother and father

and thereafter the statement of Jalindra Mahto (P.W.2) was recorded. After recording, he went to the Police Station and the report was noted down.

Learned amicus curiae has further submitted that considering the deposition of the son of the injured, the present First Information Report seems to be

hit under Section 162 Cr.P.C. as the First Information Report seems to be not initial report of a cognizable offence given to the Police.

 Learned amicus curiae has further submitted that from the evidence of P.W.1 (Motilal Mahto), his credential is doubtful as he has alleged, that his

mother was also assaulted by the accused persons.

Learned amicus curiae has further submitted, that from perusal of the first information report, no such allegation was made in this First Information

Report. This witness has further stated, that accused, Affindra Mahto assaulted his mother by means of Tangi and Jagat Mahto assaulted his mother

by leg and fist, causing fracture of her hand.

Learned amicus curiae has submitted that no such averment was made in the First Information Report with regard to assault made by tangi and if the

injury reports which have been proved and marked as Exhibits -4 and 4/1 are perused, it appears that Doctor has found two sharp-cutting injuries,

but those injuries are skin deep which cannot be caused by means of tangi, which is a heavy object and, as such, learned amicus curiae has stated that

evidence of P.W.1 is fit to be discarded.

Learned amicus curiae has further submitted, that witness, Jalinder Mahto (informant), who has been examined as P.W.2. This witness has stated

contradictory things in his deposition before the court, as compared from the First Information Report. This witness (P.W.2) has categorically stated

that Balgovind Mahto assaulted him by means of Balua (farsa) and has further stated that Balgovind Mahto has assaulted from blunt portion of

balua, on his left hand, due to which he sustained fracture of his left hand.

Learned amicus curiae has further submitted, that informant has not stated this fact in the First Information Report and it appears from the perusal of

deposition of P.W.-2, informant (Jalindra Mahto), that there is tendency of the informant to develop its case by exaggerating the facts by giving

specific allegation against Balgovind Mahto, who has assaulted the informant (P.W.2) by means of blunt portion of the Tangi.

Learned amicus curiae has further submitted, that from examination-inchief of P.W.2 (informant), it appears that the First Information Report, which

has been proved and marked as Exhibit-3 cannot be relied upon. This witness (P.W.2) has stated that his statement was recorded at Ratu Hospital,

but the same was never read over and explained to the informant, as he was in acute pain because of the injury, but he put his signature. The

informant has identified his signature which has been proved and marked as Exhibit-1.

Learned amicus curiae has further submitted, that if the evidence of P.W.1 (Motilal Mahto) is compared with the evidence of P.W.2 (Jalinder Mahto),

then the credential of P.W.1 is under cloud.

Learned amicus curiae has further submitted that in Para-3 of his crossexamination, this witness (P.W.2) has given a fatal blow to the prosecution

case, as in the First Information Report, this witness being the informant (P.W.2) has stated that he came to the hospital in the morning, as there was

no means in the night and in para- 3 of his cross-examination, he has categorically stated, that being the informant he (P.W.2) came to the hospital at

late night at 1.00 a.m. along with Sobhnath Mahto (P.W.5) of Hisiri, who brought him to the hospital and was admitted. This witness has further

stated, that he was brought by Son of Mahavir Saw in the Maruti Car.Â

 Learned amicus curiae has further submitted that if this version of the informant (P.W.2), as made out during cross-examination is accepted, then

the entire prosecution case seems to be doubtful, as the informant (P.W.2) has categorically stated in his 'fardbeyan' that, because of late

night, they could not inform the Police and because of lack of any means, he could not come to the Hospital and has categorically stated, that in the

morning he (P.W.2) came to the Hospital, where he was treated.

 Learned amicus curiae has further submitted, that in Para-8 of his crossexamination, this witness (P.W.2) has categorically stated, that some injury

was caused upon head of Jagat Mahto (accused/appellant No.2), but how he has sustained injury is not known to him.

 Learned amicus curiae has further submitted, that the informant (P.W.2) during cross-examination in Para-8, has admitted that accused has also

sustained injury and in view of the judgment, as reported in (2002) 7 SCC 210, in the case of Subramani and Others Vs. State of Tamil Nadu, it is the

prosecution who has to explain the injury caused upon the accused and even though the injury is simple in nature, but that will not exonerate the

prosecution from explaining the same. If the same is not stated in the First Information Report then it can be safely said that the prosecution has not

come up with true version of the occurrence.

 Learned amicus curiae has further submitted that from perusal of the evidence of P.W.2, it is in complete contradiction with his 'fardbeyan', as

such, learned amicus curiae has submitted that relying upon the testimony of P.W.2 (Informant- Jalinder Mahto) and fardbeyan, which has been

proved and marked as Exhibit- 2, no conviction can be passed and the trial court without scrutinizing the evidence and without going into

contradictions, has passed the impugned judgment of conviction and order of sentence, which is perverse and cannot sustain in the eyes of law.

Srimati Devi, wife of Phulchand Mahto (P.W.4) has been examined as P.W.3. This witness has stated that the accused persons have initially

assaulted her elder brother-in-law by means of lathi. She has also admitted, that Jagat Mahto has sustained some injury, but could not explain that how

the injury has been caused.

Learned amicus curiae has further submitted, that P.W.2 (Jalinder Mahto) and P.W.3 (Srimati Devi), both have admitted injury on the person of the

accused and that has not been explained in the First Information Report, as such, the First Information Report seems to be concocted, as the true

version of the prosecution case has not been stated.

Phulchand Mahto, an injured and brother of the informant has been examined as P.W.4. This witness has stated, that his brother was initially

assaulted by Shankar Mahto by means of lathi on head, causing bleeding injury and subsequently Bal Govind Mahto has assaulted by

means of lathi, on his left hand due to which, his left hand got fractured and he fell down and thereafter Afindra has assaulted this witness by means

of tangi on his neck due to which blood started oozing. This witness (P.W.4) has further stated, that there was a brick-batting and to protect the

children, the children were taken into room and the room was closed. This witness (P.W.4) has further stated, in Para-7 of his cross-examination that

the accused persons have also filed a case against them as Ratu P.S. Case No.22 of 1999, whereas the present case, which has been filed by the

prosecution against the appellants has been instituted as Ratu P.S. Case No.23 of 1999.

Learned amicus curiae has further submitted, that initially these appellants have filed a case against the prosecution party and thereafter, the

prosecution party has filed a case, suppressing the true version, as explained above, which was registered as  Ratu P.S. Case No.23 of 1999.

Learned amicus curiae has further submitted, that from perusal of the injury report of Afindra Mahto which has been proved and marked as Exhibit-

4/1, the sharpcutting injuries cannot be attributed to the tangi, a heavy object, as the same are only skin deep. The Doctor has not been examined in

this case, as such, injury reports cannot be relied upon for convicting the appellants. Learned amicus curiae has submitted, that true version has not

been brought on record and the learned trial court without scrutinizing the evidence properly, convicted the appellants on such flimsy grounds, which

are contradictory to each other and contradictory to the First Information Report.

Sobhnath Mahto (P.W.5) is an independent witness, but he is a hearsaywitness, who came after hearing the brawl and saw Jagat Mahto but not

Phulchand Mahto. This witness (P.W.5) has stated, that Jalindra Mahto (Informant) has disclosed, that he has been assaulted by means of lathi, on his

head and hand, but this witness has not seen the occurrence.

Learned amicus curiae has submitted that P.W.5 (Sobhnath Mahto) is a hearsay witness and he has categorically stated that he has not seen injury on

the person of Phulchand Mahto (P.W.4) and his evidence is only on the basis of the disclosure made by Jalinder Mahto (P.W.2- Informant).

Tapeswar Mahto, son of Jalindra Mahto (P.W.2) has been examined as P.W.6. This witness has stated that he has not seen the actual occurrene,

but when he came to the house, he saw his father and uncle in an injured condition in the courtyard and the moment he went there, Afindra and

Shankar chased him and he fled away to the house of his maternal family. This fact has not been stated by any of the prosecution witnesses in

their deposition nor the same has been stated in the First Information Report of P.W.2 (Jalindra MahtoInformant), which was the basis of the

prosecution case.

Balchand Mahto, an independent witness who went along with the informant to the house of Phulchand Mahto (P.W.3) has been examined as

P.W.7. This witness has stated in Para-18 of his cross-examination, that initially they went to the Police Station and subsequently went to the Hospital.

This witness has further given contradictory version from the informant (P.W.2), that in the night of the occurrence, he went to the Hospital along

with Shankar and returned in the morning and again went to the Hospital with money before the Shankar, who was in the Hospital.

Learned amicus curiae has submitted, that though this witness has been named in the First Information Report as an eye-witness, who has seen the

entire occurrence, his evidence is not reliable, as this witness has given contradictory version from the other prosecution witnesses and the First

Information Report, which has been marked as Exhibit-3. When this witness (P.W.7) has said that initially he went to the Police Station and

subsequently went to the Hospital, credential of this witness is highly doubtful, cannot be relied upon.

Suresh Mahto has been examined as P.W.8. This witness being an eyewitness to the occurrence, has stated that on brawl he went to the place of

Phulchand Mahto and saw that Jalo Mahto (Jalinder Mahto) had injury in his hand, but he has not seen the actual occurrence. This witness has further

stated in Para-16 of his cross-examination, that he was brought by Shankar and Afindra to the house of Jalo Mahto. This witness has further stated

that he saw the injury on the appellant- Jagat Mahto.

Learned amicus curiae has submitted, that evidence of this witness (P.W.8) is contradictory to the prosecution case, as this witness has stated, that he

was taken to the house of Jalindra Mahto by Shankar Mahto and Afindra Mahto, who are appellants of the present case. Further this witness (P.W.8)

has stated, that he has seen Jagat Mahto (appellant in this case) with injury, which is not the case of the prosecution. The prosecution has brought a

case that all the accused persons had entered into the house of the informant's brother, where the informant was present and they have assaulted the

informant and this witness (P.W.8), who has been examined on behalf of the prosecution, but giving contradictory version to the prosecution case.

Narayan Ram, A.S.I. and investigating officer of the case has beenexamined as P.W.9. This witness has proved his signature on the First

Information Report as Exhibit- 2/1. This witness has proved the signature of the informant in the First Information Report as Exhibit-1 and fardbeyan

as Exhibit2. This witness (P.W.9) has submitted, that he came to the Police Station along with 'fardbeyan', on the basis of that formal First Information

Report was drawn by the Officer-in-charge, which has been proved and marked as Exhibit-3 and thereafter the case was instituted and thereafter

endorsement of the Officer-incharge of Ratu Police Station on the fardbeyan for investigation of the case has been proved and marked as Exhibit-3/1.

This witness, in Para-6 of his cross-examination, has categorically stated that on the basis of O.D. Slip issued by the Primary Health Centre, First

Information Report was instituted. He (P.W.9) went to the Primary Health Centre, saw Jalinder Mahto (P.W.2) and Phulchand Mahto (P.W.3), who

were under treatment there. He got information to the extent that they came to the Hospital at around 7.45 a.m. at that time Dr. B. P. Ranjan was

there, who was treating them.

Learned amicus curiae has submitted that from perusal of requisition issued by the Police officer, on the basis of that injury reports were prepared,

which have been proved and marked as Exhibits- 4 and 4/1. It appears that requisition contains word that injured are being sent to the Hospital for

treatment though the prosecution case, is that injured were getting treatment in the Hospital, when the Police officer was informed and his fardbeyan

was recorded. Such discrepancies were found in the medical requisition issued by the Police offier coupled with the fact that fardbeyan is under cloud,

as per the evidence of P.Ws.1 and 2 itself. It seems that the entire thing has been cooked up, as the prosecution parties are accused in the case filed

by Jagat Mahto (appellant no.2) against them, which was registered as Ratu P.S. Cas No.22 of 1999.

Learned amicus curiae has drawn attention of this Court towards the evidence made in Para-10 of the cross-examination of the Investigating officer

(P.W.9), where the Investigating officer has stated that on repeated request to the Doctor with respect to the injury reports, the same have not been

prepared. Learned amicus curiae has further submitted that, if injured are being examined by the Doctor and no injury report was prepared, then

exhibiting injury reports as Exhibits-4 and 4/1 dated 4.03.1999 itself create doubt about its authenticity and genuineness, as the Investigating officer has

categorically stated, that on repeated demand, injury reports were not provided to him and he learnt that injury reports have not been prepared.

Learned amicus curiae has further submitted, that from perusal of the injury report of Jalindra Mahto, two sharp-cut wounds on frontal region of head

were found, as per the prosecution case. Jalindra Mahto (P.W.2- Informant) was assaulted once on head by Shankar Mahto and such injury

could have been caused by hard and blunt substances, but from perusal of injury report of Jalindra Mahto (informant), there are two sharp-cut injuries,

as per Exhibit-4/1, which have not been explained by the prosecution and such injury report is a forged and fabricated document created subsequently

in the present case.

Learned amicus curiae has further drawn attention towards the injury report of Phulchand Mahto, where the Doctor has found sharp-cut wound on

left side of neck above left clavicle 1â€x1/2â€x Muscle deep. Learned amicus curiae has submitted that, if a person is assaulted by lathi, such injury

cannot be caused and if a person is assaulted by tangi, injury cannot be caused muscle deep as the tangi is sharp heavy weapon, as such, learned

amicus curiae has submitted that the injury reports being fabricated documents, cannot be relied upon by the learned trial court and the learned trial

court has committed gross error in convicting the appellants vide impugned judgment of conviction and order of sentence.

Learned amicus curiae has further submitted that Doctor has not beenexamined in this case. Injury reports have been proved by a formal witness,

Anand Kumar Baraik (P.W.10), who is not a competent witness, as this person has never worked with the said doctor to identify his writing and

signature, on the injury reports which has wrongly been considered by the learned trial court as the same have been marked as Exhibit-4 and 4/1.

Learned amicus curaie has further submitted that it is a case, which has been instituted as counter case of Ratu P.S. Case No.22 of 1999 lodged by

Jagat Mahto, appellant No.2 of the present case and thus, present case which has been instituted as Ratu P.S. Case No.23 of 1999 is a subsequent

case, as such, there is discrepancy, which has been found, as stated above. On the above premises, learned amicus curiae has submitted, that the

appellants deserve to be acquitted from this case by giving benefit of doubt because of sketchy evidence which is not consistent with each other.

Mr. Sanjay Kumar Srivastava, learned Addl. Public Prosecutor appearingfor the State, while supporting the impugned judgment of conviction and

order of sentence, has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the

basis of materials available on record. Learned Addl. Public Prosecutor has further submitted that medical evidence which have been proved and

marked as Exhibits-4 and 4/1 dated 04.03.1999 are genuine. The Investigating officer has stated, that even on the repeated request, the injury reports

were not provided to him and that will not create any cloud over the injury reports issued by the Doctor. Learned counsel for the State on

perusal of record, has fairly submitted that the Doctor who has examined the victims, has not been examined in this case. As per the learned counsel

for the State, there is no illegality in the impugned judgment of conviction and order of sentence as nothing has been brought on record to warrant this

Court for interfering with the impugned judgment of conviction and order of sentence.

Heard, Ms. Vani Kumari, learned amicus curiae appearing for theappellants and Mr. Sanjay Kumar Srivastava, learned Addl. Public Prosecutor

appearing for the State and perused the records, such as, First Information Report, framing of charge, evidence of ten prosecution witnesses, exhibits

upto Exhibit-4 series and statement made under Section 313 Cr.P.C. of the appellants, this court finds some force in the submission of the learned

amicus curiae. It is true that there is a case and counter-case between the parties and the appellant no.2, Jagat Mahto has initially filed Ratu P.S.

Case No.22 of 1999 against the present prosecution party and subsequently Ratu P.S. Case No.23 of 1999 has been filed.

This Court has also found, that P.W.2 (Jalindra Mahto) and P.W.3 (Srimati Devi) have themselves admitted before the Court that appellant no.2

(Jagat Mahto) has sustained some injury on his head, but from perusal of the First Information Report, no such averment was mentioned in the First

Information Report. From the submission made by the amicus curiae, this Court is of the opinion that the judgment cited, as reported in (2002) 7 SCC

210, in the case of Suramani and Ors. (Supra) is fully applicable in the present case, as the prosecution has not explained the injury found on the

accused and non- explanation of such injury even simple in nature, will not relieve the prosecution from mentioning the same and if the same is not

mentioned, it can safely be said that the true version of the prosecution case has not been brought on record.

This Court has also found that P.W.1 (Motilal Mahto) has categorically stated during his cross-examination, that initially his statement was recorded

by the Police and thereafter the statement of the informant was recorded, as such, the present First Information Report is hit under Section 162

Cr.P.C. and seems to be a document which has been created being an after-thought.

 This Court has also found that Medical Officer of the case has not been examined and deposition of the witnesses are contradictory to each other

and also to the First Information Report. Non-examination of the Medical officer has caused serious prejudice to the appellants, as the appellants could

not draw attention of the court by way of cross-examination of Medical Officer to elucidate the fact, which could have been proved their

innocence with regard to nature of injury, caused by weapon and treatment started and given to injured.

This Court has also found that certain points were raised by the appellants in cross-examination of the witnesses, but version of the Medical officer

was essential for those points, since the Medical officer has not been examined, as such, serious prejudice has been caused to the appellants. Dr. B.

P. Ranjan, who has examined the injured persons, has not been examined in this case. In view of the evidence of the Investigating officer in Para-10

of his cross-examination, the injury reports were not handed-over to him on repeated requests and he has learnt that injury reports have not been

prepared. This is also fatal to the prosecution case. Non-examination of Doctor has caused serious prejudice to the appellants, as the injury reports are

contradictory to the allegation made in the First Information Report and the evidence of the prosecution witnesses.

Under the aforesaid circumstances and the discussions made hereinabove, the appellants are entitled for benefit of doubt. The appellants, namely,

Aafindra Mahto, Jagat Mahto, Shankar Mahto, Ram Tahal Mahto and Balgovind Mahto are acquitted by extending benefit of doubt from theÂ

charge and conviction under Section 147 I.P.C. and appellants Nos.1 to 4, namely Aafindra Mahto, Jagat Mahto, Shankar Mahto and Ram Tahal

Mahto, under Sections 323/34 I.P.C. and charge and conviction under Section 325 I.P.C. against appellant no.5, Balgovind Mahto.

Accordingly, the Judgment of conviction and order of sentence, both dated 23.12.2003, passed by learned 5th Addl. Judicial Commissioner, Fast

Track Court, Ranchi, in S.T. No.136 of 2000 (T.R. No.51 of 2003), is hereby set aside by giving benefit of doubt to the appellants.

In the result, the aforesaid Criminal Appeal stands allowed.

The appellants, who are on bail, are discharged from the liabilities of their bail bonds.

Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.

Before parting with the aforesaid judgment, this Court appreciates the assistance rendered by Ms. Vani Kumari, learned Amicus Curiae. The

Member Secretary, JHALSA, is directed to release the amount of remuneration to Ms. Vani Kumar, learned amicus curiae within a period of four

weeks from the date of receipt of a copy of this judgment.

Let a copy of this judgment be communicated to the Member Secretary, JHALSA for needful forthwith.