Panchu Mandal @APPELLANT@Hash State of Jharkhand

Ratnaker Bhengra, J.

Heard the parties.

This appeal is directed against the judgment of conviction and order of sentence dated 17.08.2001, passed by learned 2nd Additional Sessions Judge,

Deoghar in Sessions Case No. 234 of 1993|138 of 2001, arising out of G.R. Case No. 310 of 1990, T.R. Case No. 111 of 1993, Mohanpur Police

Station Case No. 31 of 1990, by which, these appellants have been convicted. Appellant No.1 Panchu Mandal is convicted under Section 148 and

Section 326 of the Indian Penal Code. Panchu Mandal was sentenced to undergo rigorous imprisonment for three months under Section 148 of the

Indian Penal Code and rigorous imprisonment for six years under Section 326 of the Indian Penal Code with a fine of Rs.500/- to be deposited within

six weeks from 17.08.2001 and the amount of fine was to be given to the injured PW-3 Ramchandar Mandal as compensation and in case of default

to undergo further rigorous imprisonment for one year. Appellant Nos. 2 to 7 have been convicted under Section 147 and Section 323 of the Indian

Penal Code and sentenced to undergo rigorous imprisonment for two months under Section 147 of the Indian Penal Code and one month rigorous

imprisonment under Section 323 of the Indian Penal Code. All the sentences were directed to run concurrently.

The prosecution as per the written report of the informant Birju Mandal (PW-4), son of late Harihar Mandal, village-Amgachhi, Singardih, PS

Mohanpur, District-Deoghar is that on 11.4.1990 at 7.00 a.m. he was going to court from his house. The accused persons due to dispute of Mahua

tree and well of fishery surrounded him near baithka near pakki Sarak in the village and started abusing him. Accused Panchu Mandal was armed

with sword; Satyanarayan Mandal, Nageshwar Mandal, Shridhar Mandal and Govind Mandal were armed with lathi; Rupal Mandal and Akal Mandal

were armed with chain and stone. When the informant protested accused Shridhar Mandal gave lathi blow on the back side of his head and accused

Roopan Mandal gave stone blow on his left shoulder. When he raised halla, his brother Surajnarayan Mandal, nephew Ramchandra Mandal and son

Sukdeo Mandal came to save him. Then the accused Panchu Mandal gave sword blow on the head of the informant's nephew Ramchandra. Other

accused persons assaulted his brother Surajnarayan Mandal and the informant with lathi and chain. The occurrence was seen by the witnesses Sufal

Mahato, Guhi Modi, Duro Modi and Nunulal Mahato. It was further stated that Rs.700/- and an HMT watch of informant's nephew Ramchandra was

taken away by the accused Satyanarayan Mandal.

On the basis of the written report of the informant, FIR was registered against the accused persons and after investigation charge-sheet was

submitted under Sections 147, 148, 149, 323, 324, 307, 325, 337, 447 and 379 of the Indian Penal Code. Cognizance was taken and the case was

committed to the Court of Sessions for trial and disposal. Charges were framed against the accused persons as above-mentioned, the charges were

read over and explained to the accused persons in Hindi, which they denied and claimed to be tried. After trial, the appellants were convicted and

sentenced, as aforesaid, vide judgment of conviction and order of sentence dated 17.08.2001. Hence, this appeal.

Altogether seven witnesses were examined by the prosecution in support of its case. PW-1 is Sukhdeo Mandal, the son of the informant; PW-2 is

Surajnarayan Mandal, the brother of the informant; PW-3 is Ramchandra Mandal, the nephew of the informant; PW-4, Birju Mandal, is the informant

himself; PW-5 is the IO of the case and PW-6 & PW-7 are the Doctors, who examined the injured.

PW-4, Birju Mandal, is the informant and injured eye witness in this case. He deposed that on the day of occurrence on 11.4.1990 at 7.00 a.m. he

was sitting at the door of his baithak. He was ready to go to Deoghar Court. In the meantime, accused Panchu Mandal armed with sword; Roopan

Mandal, Aklu Mandal armed with chain and stone; Govind Mandal, Shridhar Mandal, Nageshwar Mandal and Satya Narayan Mandal armed with lathi

came and surrounded him. Accused Shridhar Mandal asaulted the informant with lathi on head. Accused Rupan Mandal assaulted with stone on left

shoulder. One of the accused also assaulted him with stone, which hit his finger on his right hand. He raised hulla, on which, his brothers Suraj

Narayan Mandal (PW-2), nephew Ramchandar Mandal (PW-3) and son Shukdeo Mandal (PW-1) came to save him. Then accused Panchu Mandal

inflicted sword blow on the head of Ramchandar Mandal(PW-3) and other accused also inflicted stone blows on Ramchandar. The accused persons

also beat Suraj Narayan Mandal and Shukdeo Mandal. Accused Satya Narayan Mandal took away Rs.600/- and an HMT watch from Ramchandar

Mandal. He further deposed that then he went to Police Station and gave a written application. The same has been marked as Ext.-1. Thereafter, he

was sent to the hospital by the Police Station. In his cross-examination, he said about the enmity with the accused persons. He further said that

Shridhar Mandal had assaulted him on the back of his head and Rupan Mandal assaulted him with stone. Vide para-12, he has stated that due to injury

of sword Ramchandar fell down.

PW-3, Ram Chandra Mandal, is the nephew of the informant and also an injured eye witness of this case. He deposed that on the day of

occurrence the accused persons came and accused Panchu Mandal was armed with sword and other accused persons were armed with chain, stone

and lathi; they came and started abusing Birju Mandal (PW-4). On protest, they started beating him. This witness along with Sukdeo Mandal (PW-1)

went to save the informant. Then the accused Panchu Mandal had given sword blow on his head. The accused persons had also beaten by lathi on the

toe of his left foot. Accused Satyanarayan Mandal has taken away HMT watch and Rs.600/- from his pocket. After the occurrence, the accused

persons fled away. On cross-examination, he had denied the counter case i.e. Ext.-A.

PW-1, Sukdeo Mandal, is one of the injured of this case and he is the son of the informant. He deposed that on the day of occurrence on 11. 4.1990

at 7.00 a.m. his father was in his baithaka. The accused persons surrounded him and started abusing. The accused Shridhar Mandal had given lathi

blow on his father’s head and accused Rupan Mandal threw stones. When he went to save his father, accused Satyanarayan Mandal and Rupan

Mandal assaulted him with stone below the ear, elbow and wrist. On hulla, his cousin Ramchandra Mandal came to save them then accused Panchu

Mandal assaulted with sword on his head. When his uncle came to save them, accused Govind Mandal, Nageshwar Mandal and Roopan Mandal also

assaulted him. The condition of Ramchandra Mandal was serious because he received head injury. In cross-examination, he denied the counter case

i.e. Ext.-A.

PW-2, Surajnarayan Mandal, is the brother of the informant and one of the injured eye witness in this case. He deposed that on the day of

occurrence on 11.4.1990 at 7.00 a.m. he was at the shop. He heard hulla and went to the baithak and saw the accused persons were abusing the

informant Birju Mandal (PW-4). When they objected, accused persons started beating the prosecution side with stones and lathi. Accused Rupan and

Shridhar assaulted the informant. Accused Panchu Mandal gave sword blow on the head of Ramchandra Mandal. His treatment was done at Ranchi.

He was injured on right hand and on left leg. In his cross-examination, he said that on the same date for the same occurrence one Sitaram Mandal has

lodged case against them, in which, they were convicted. Ramchandra Mandal (PW-3) and Birju Mandal (PW-4) were also convicted.

PW-6, Dr. C.D.L. Das, examined the injured Sukhdeo Mandal (PW-1); Birju Mandal (PW-4) and Surajnarayan Mandal (PW-2).

(a) He examined Sukdeo Mandal (PW-1) and found the following injuries on his person:

(i) Bruise over right arm ½â€​ x ¼â€​;

(ii) Bruise over right wrist 1/8â€​ round.

He deposed that both the injuries were simple and caused by hard and blunt substance, such as, lathi and rod. Injury report of Sukhdeo Mandal PW-1

was marked as Ext.2.

(b) He found following injuries on the person of Birju Mandal, PW-4:

(i) Bruise over left shoulder 1â€​ long;

(ii) Swelling over right side of arm;

(iii) Bruise over right little finger 1/8â€​ long.

He deposed that the injuries were simple and caused by hard and blunt substance, such as, lathi. Injury report of Birju Mandal, PW-4 was marked as

Ext.2/1.

(c) He further examined Surajnarayan Mandal(PW-2) and found the following injuries on his person:

(i) Bruise 1/8â€​ swelling right forehead. X-ray was done. No Bore injury was found;

(ii) Bruise ½â€​ long over right elbow joint;

(iii) Swelling of right foot again say swelling of left foot medial size. All the injuries are simple in nature and caused by hard and blunt substance, such

as, lathi. Injury report of Surajnarayan Mandal, PW-2 was marked as Ext.2/2.

PW-7 is Dr. Jogendra Singh, who examined Ramchandra Mandal (PW-3), has deposed that, On 11.04.1990 at 9.45 a.m., he examined

Ramchandra Mandal and found the following injuries on his person:

(i) Sharp cut injury on left side of forehead 2â€​x ½â€​x scalp deep;

(ii) Abrasion right big toe.

He deposed that Injury No.(i) was caused by sharp cutting weapon and Injury No. (ii) was caused by hard and blunt substance. He further deposed

that Injury No.(i) was grievous and Injury No.(ii) was simple. Injury report of Ramchandra Mandal was marked as Ext.2/3.

PW-5 is ASI Shri Bipin Bihari Prasad, who is the IO of the case. He deposed that he inspected the place of occurrence and narrated the detail of

the same. After completion of the investigation, he has submitted charge sheet. In his cross-examination, he deposed that he was also IO of Mohanpur

P.S. Case no. 30/90 dated 11.04.1990. He further deposed that he also prepared the injury requisition of the injured of that case and after having

found the occurrence as true has submitted charge-sheet in that case.

Arguments advanced by learned counsel for the appellants:

Learned counsel for the appellants has submitted that the instant case is based upon Mohanpur P.S Case No. 31 of 1990 which is the counter blast

case and has been filed after Mohanpur P.S. Case No. 30 of 1990, wherein the prosecution side have been convicted under Sections 323/ 147/ 337/

447 IPC. No independent witnesses were examined. All are interested and inimical witnesses. Learned counsel for the appellants further submitted

that in FIR it has come that the occurrence was seen by witness Sufal Mahto, Guhi Modi, Duro Modi and Nunulal Mahto but none of them have been

examined.

Learned counsel for the appellants has then submitted that PW-1 is not trustworthy as a careful examination suggests that as per him the place of

occurrence is Baithak (Room) whereas other witnesses have said it to be on road. PW-2 has admitted that they have been convicted in Mohanpur

P.S. Case No. 30 of 1990. PW-3 cannot be relied upon because he has stated that due to injury he had become mad on the other hand this witness

has stated that he is a practicing lawyer since 1988. PW-4 is the informant of this case. This witness has not stated before the learned court that the

appellants have abused him before assaulting. PW-6, Dr. C.D.L. Das examined Suryanarayan Mandal on 13. 04.1990 but injury report was not

present in the court. PW-7, Dr. Joginder Singh, examined Ramchandra Mandal PW-3 at 9:45 a.m. and FIR is also of 9:45 a.m. further he has found

no fracture.

Learned counsel for the appellants further submitted that at page No.10 of the judgment it has been observed that appellant No. 1 Panchu Mandal

has been held guilty under 326 IPC because of Injury No.1 inflicted on PW-3 which was grievous as defined under Section 320 IPC. But the same

has not been rightly observed. The relevant Section 320 IPC says that-

“320. Grievous hurt.-The following kinds of hurt only are designated as “grievousâ€​:-

Eighthly.- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow

his ordinary pursuits.â€​

Learned counsel for the appellants has referred to the judgment, passed in Mithu Singh vs. State of Punjab [1980 Punj. L.R. 639 at p. 641] wherein it

was held that periosteum of the bone was cut, which means the fibrous membrane around the bone was cut and not the bone itself. There was no

evidence to show for how many days the injured remained in the hospital. It would not deter a person to pursue his ordinary pursuits. Accordingly, the

injury will not come under the clause(8) of Section 320 IPC.

Learned counsel for the appellants further submitted that as the informant side were already convicted under Sections 323/ 147/ 337/447 IPC, it

cannot be established as to who is the aggressor. Therefore, the prosecution had failed to prove its case beyond the reasonable doubt and appellants

may get the benefit of the same.

Learned counsel for the appellants has further submitted that moreover, the prosecution had not brought on record the true version of the incident

and there has been suppression on the part of the prosecution. Neither in the FIR nor in the evidence, it has been disclosed that appellants have also

sustained injuries. In this regard, he has cited the judgment of the Hon’ble Apex Court passed in Subramani and others versus State of T.N [2002)

7 SCC 210 para 26].

Learned counsel for the appellants has further submitted that the it is well settled that when there is case and a counter case, both must be tried by

one and same Judge and must be disposed of simultaneously by him, otherwise, it is not possible to arrive at a definite conclusion as to the genesis of

the incident and also fix up the aggressor. In this regard, he has also cited the judgment in the case of Adapa Gangadhara Rama Rao versus State of

Andhra Pradesh [2010 CRI.L.J. 1829 para 22]

Arguments of the learned counsel for the State:

Learned counsel for the State submitted that one counter affidavit dated 08.11.2017 has been filed in the instant case by which it has been brought

on record that the appellant Nageshwar Mandal, S/o Khudu Mandal, had died.

Learned counsel for the State further submitted that the case of the prosecution rests upon the testimonies of injured eye witnesses PW- 1 to PW-

4 including the injured informant (PW4). Their evidences have been fully corroborated by the medical evidences, that is, by the Doctors PW-6 and

PW-7 and by the exhibited injury reports- Ext.2 to Ext.2/3. The date, time, place and manner of occurrence have been well established through the

evidences on record. There is nothing on record which can cast doubt upon the prosecution story. Although the defence has exhibited judgment of

counter case through Ext.A and witnesses have been cross-examined on the point of lodging of the said counter case, nothing could be elicited through

the witnesses and nothing could be brought on record which belies the present prosecution version. Existence of counter case does not nullify the

illegal act committed by the accused persons.

Learned counsel for the State has further submitted that the argument of the learned counsel for appellants that there could have been suppression

of genesis of the incident and of the identity of the aggressor is not supported by the records of the case. If the case of defence lies under any of the

“General Exceptions†IPC or any fact was within their specific knowledge, burden of proving the same shifts upon the party claiming the same.

Records of the present case do not show that the appellants has tried in any manner to prove that there was any suppression of the genesis of the

incident except for the fact that one counter case was also lodged which does not in any manner nullify the illegal actions committed by the accused

persons.

Learned counsel for the State has further submitted that there is one judgment passed by the larger Bench of Hon’ble High Court of

Karnataka in the case of State of Karnataka by Circle Inspector of Police Vs Hosakeri Ningappa & Anr (Appeal No.-CA No. 971 of 2005) decided

on Dec. 19, 2011, wherein few questions have been answered in connection with the mattes related to case and counter case keeping in view several

judgments passed by Hon’ble Apex Court and also keeping in view the principles contained in Section 465 Cr.P.C. which provides for the

circumstances as to when any finding or sentence can be reversed. Para 18(b) of this judgment lays down that “The evidence recorded in one

case cannot be looked into in the other case. The trial judge can only rely upon the evidence recorded in that particular case and the evidence

recorded in the cross case cannot be looked into. Each case must be decided on the basis of the evidence which has been placed on record in that

particular case.â€​

Learned counsel for the State has further submitted that the learned counsel for the appellants has cited one case reported in 2010 CRLJ 1829

(Adapa Gangadhara Rama Rao & Ors. Vs. State of Andhra Pradesh). This judgment is not applicable in the present case because it holds conviction

and sentence unsustainable on the ratio that the genesis of incident was suppressed and the aggressor was not fixed. Here, entire evidences of

prosecution witnesses have been found contrary to their 161 CrPC statements. A series of contradictions were exhibited by the defence from Exts D1

to D24 which have been proved by the Investigating Officers. The entire initial version of the prosecution was given a go bye by the witnesses when

they were examined before the learned trial court and the scene of offence had also not been placed correctly. The learned trial court, herein, erred in

convicting the appellants in spite of the contradictions and omissions which were brought to the notice on the record by the defence. It is a clear cut

case which casts doubt upon the genesis of incident and upon the identity of aggressor. And for this reason, it has been held that case and counter

case ought to have been tried by one and same Judge.

Whereas, in the case in hand, there is nothing on record which can create doubt upon the genesis of the incident and upon the identity of aggressor.

The suggestions given to the witnesses by the defence do point out that there was case and counter case but the defence could not elicit anything

from the witnesses which can create doubt upon the genesis of the incident. The ratio laid down in the case of Adapa (supra) is not applicable in the

present case which says that conviction is unsustainable where there is doubt as to the genesis of incident.

Learned counsel for the State further submitted that there is one judgment reported in AIR 1955 SC 216: 1955 CRLJ 572 (Pandurang Vs State of

Hyderabad). Para-36 of this judgment lays down that a blow on the head with an axe which penetrated half an inch into the head is an instance of

injury which endangers human life. Eighth clause of Section 320 IPC covers any hurt which endangers life. Keeping in view this judgment, the injury

sustained by PW-3 (Ram Chandra Mandal) is grievous one and the same has also been opined by the Doctor and been supported by the injury report.

Lastly, learned counsel for the State submitted that the conviction of the appellants, passed by the learned court below is proper and requires no

interference.

FINDINGS

Regarding appellant No.7, Nageshwar Mandal, it is informed by State counsel that he has passed away, a copy of the death certificate has also

been brought on record. Hence, his appeal stands abated.

Having heard both the counsels, gone through the records of the case, the evidences and in the facts and circumstances, one of the issues that has

to be addressed while deciding this case has been the fact raised by the appellants that this case is rather one of a case and counter case. Counsel has

argued that out of the incident that has taken place, another Mohanpur P.S. Case No. 30 of 1990 was also registered, the case on hand is Mohanpur

P.S. Case No. 31 of 1990. It is noted that the case on hand is numbered as Mohanpur P.S. Case No. 31 of 1990 and therefore, as far as sequence is

concerned or the chronology it may have been the latter case or at least it was numbered subsequently. The aspect that was also taken into some

consideration was that the evidence that have been taken on board by the trial court, the judgment arising out of Mohanpur P.S. Case No. 30 of 1990

in G.R. No. 309 of 1990 and it’s judgment dated 27.08.1997 has also been exhibited as Ext.A. In appellants’ argument, the issue of case and

counter case was also argued. Learned counsel for the appellants had argued that the prosecution in this case or the case on hand had not brought on

record the true version of the incident and that there has been suppression on the part of the prosecution because it was not disclosed in the FIR of the

case or in the evidence that the appellants’ side had also sustained injuries. Learned counsel for the appellants has also said that the law is well

settled that when there is a case and a counter case, both must be tried by one and the same Judge and must be disposed of simultaneously, otherwise,

it is not possible to arrive at a definite conclusion as to the genesis of the incident and as to who the aggressor was.

Learned counsel for the State had sought to address the issue by arguing that this issue has also been addressed by a larger Bench of the

Hon’ble High Court of Karnataka in the case of State of Karnataka by Circle Inspector of Police Vs Hosakeri Ningappa & Anr (Appeal No.-CA

No. 971 of 2005) decided on Dec. 19, 2011. Counsel for the State had argued that this judgment had taken into consideration several judgments

passed by the Hon’ble Apex Court and tried to address the issue and therefore, at this stage this case can be decided on merits.

Bearing the aforesaid in mind, I would like to go into the facts and evidences of this case. The dispute between the parties is admitted. There is

some prior dispute between the parties regarding sharing of fish proceeds and over some trees. The prosecution story indicates, as per the evidence of

PW-4, who is Birju Mandal and also the informant, when he was going to court from his house and then the accused persons had accosted him near

the baithka near pakki sarak. The common matter between both the parties is that the incident has taken place in village Amgachhi, Singardih, PS

Mohanpur, District-Deoghar. In his deposition or evidence, the informant has said that he was sitting at the door of his Baithka. There seems to be

some discrepancy between the version of the informant as given by him in his written report and as given by him later in his evidence. PW-1, Sukdeo

Mandal, the son of the informant, has in his evidence deposed that his father was in his baithka. So this would correspond to the evidence of PW-4

where he had said he was sitting at the door of his baithka. There is anyway also reference to the baithka in the written report. PW-2 Surajnarayan

Mandal, brother of the informant and another injured has also deposed with reference to the baithaka.

Rather that he had gone to the baithaka and then seen the accused persons abusing the informant Birju Mandal. PW-3, Ram Chandra Mandal,

nephew of the informant, who is also again one of the injured, has also deposed that assault was at his door. So the place of occrence seems to be

near the baithaka which is in ownership of the PW-4 the informant and his family. PW-5, Shri Bipin Bihari Prasad, who is the ASI and Investigating

Officer of the case had inspected the place of occurrence and found the place of occurrence as true and also given the details of the same in his

deposition. So as per the evidences that have been examined in this case including the evidence of the IO the place of occurrence seems to be

determined and found to be true. It is another matter that in the counter case also in which the same ASI or the same IO had also investigated the

place of occurrence was also found true there. I have only the copy of the judgment of the cross case to go by and I definitely do not have the entire

evidences of the other case or the cross case before me. It is useful at this juncture to say that the cases being rather old and the decision in the cross

case was passed in 1997 and the decision in the case on hand i.e. impugned order was passed in the year 2001. At the stage of the trial court, both,

the cases were decided by different Courts.

I have then had the occasion to examine the manner of assault. In the written report the main assailant is indicated as appellant No.1 Panchu

Mandal who had assaulted by sword on the head of Ramchandra Mandal. Regarding the rest of the assailants, the accused or the appellants herein,

whatever assault has been done was either by lathis (sticks) or stones. In the written report, it is noted that the accused Shridhar Mandal had given

lathi blow on his head and accused Rupan Mandal had given stone blow on his left shoulder. PW-1, Sukdeo Mandal, who is the son of the informant

and also one of the injured, has deposed that Panchu Mandal had assaulted by sword on Ramchandra and rest of the assault by others were also with

lathi or stone. It is noted that the son also supports or corroborates his father regarding the role of Panchu Mandal and his assault by sword on

Ramchandra and also that the others were having lathi or stone and whatever assault was done by them, the remaining appellants was done by lathi or

stone. PW-2, Surajnarayan Mandal, who was also one of the injured, he has also corroborated the assault made by Panchu Mandal with sword on

Ramchandra, and also corroborated that the remaining appellants were having lathi or stone and had assaulted with the lathi and stone. The evidence

of PW-3, Ramchandra Mandal, who is another one of the injured, and also the informant’s nephew is crucial in the sense that he had received the

main injury and he has himself corroborated the informant by deposing that Panchu Mandal had given sword blow on his head. We see that Aklu and

Roopan were armed with chain and stone and others were armed with lathi. Therefore, it is seen that the consistent evidence is that Panchu Mandal

was the main assailant though he was part of the larger group which can be considered an unlawful assembly, however, he was the only one

responsible for the assault on the injured PW-3 by sword on his head. The rest of the assailants i.e. the appellants herein were either armed or mostly

armed with lathi and stones and there is also reference to chain, however, none of these have inflicted as fatal injury as was done by Panchu Mandal,

though all of them taken together would consist an unlawful assembly.

I have also examined the evidence of PW-6, Dr. C.D.L. Das, who had also examined the injuries of some of the prosecution witnesses and I have

also gone through the evidence of PW-7, Dr. Jogendra Singh, who had examined one of the injured in the case on hand, namely, Ramchandra Mandal.

In the evidence or deposition of PW-6, Dr. C.D.L. Das, he has indicated and described the injuries of PW-1 Sukdeo Mandal, PW-4 Birju Mandal and

PW-2 Surajnarayan Mandal. I have examined the evidence of Dr. C.D.L. Das. He noted that the injuries of Sukdeo Mandal, PW-1 and injury of PW-

4 Birju Mandal and the injury of PW-2 Surajnarayan Mandal and all injuries inflicted on them to be simple in nature. PW-7, Dr. Jogendra Singh, has

indicated injury No.I inflicted on PW-3, Ram Chandra Mandal as being grievous in nature which is a sharp cut injury on left side of forehead 2†x

1â€x scalp deep. Therefore, I can see that it is not a case of only one person being injured but it is a case of four persons being injured and they all

have received two or three injuries each and one of the injuries has at least been caused by a sharp cutting weapon and as has been testified in the

other evidences that sword assault was used to inflict injury on the head of Ramchandra Mandal. Therefore, ocular evidence is totally corroborated by

medical evidence and therefore, the witnesses are very much trustworthy, reliable and believable. IO has also been examined and he has not found

anything to challenge their versions of the case.

In the first instance, when the issue of cross case in Mohanpur P.S. Case No. 30 of 1990, corresponding to G.R. No. 309 of 1990 and its judgment

dated 27.08.1997 is seen, wherein the accused therein including Birju Mandal, Sarju Mandal and Ramchandra Mandal have been convicted under

certain sections of the IPC, then a possible reaction is that if the accused therein have been convicted in the cross case, then in the case pertaining to

Mohanpur P.S. Case No. 31 of 1990, which is the case on hand, there should have been acquittal for the accused in this case. That has not been the

case and the accused also in Mohanpur P.S. Case No. 31 of 1990 were also convicted by the learned trial court under various sections and therefore,

this appeal has come about. Therefore, the arguments made by the counsel for the appellants in the case on hand, that in a case of case and counter

case or cross cases, both the cases must be tried by one and same Judge and must be disposed of simultaneously is definitely good law. Otherwise, it

is very difficult to arrive or not possible to arrive at a definite conclusion as to the genesis of the incident and also to fix the aggressors. And this has

already been held by the Apex Court as pointed out by him. I however also note that the counsel for the State had pointed out that “the evidence

recorded in one case cannot be looked into in the other case. The Trial Judge can only rely upon the evidence recorded in that particular case and the

evidence recorded in the cross case cannot be looked into. Each case must be decided on the basis of the evidence which has been placed on record

in the particular caseâ€​. I am faced with the situation that this is a matter arising out of a case and cross case.

This incidentally is a matter in which both the cases were investigated by the same Investigating Officer and it is also indicated that one of the Doctors

PW-6 Dr. C.D.L. Das had also examined some of the appellants in the other cross case while having examined three of the injured in this case.

However, the very crucial direction of the Supreme Court that it should be decided by the same Judge and simultaneously that has not been done,

however I note that one of the decisions of the trial court is of the year 1997 and the other, which is the impugned judgment is of the year 2001. At

this stage at the High Court it is almost tempting to say that all the evidences of both the cases should have been examined and then the matter be

decided in that light, here but however as has been pointed out by the State that the larger Bench decision of the Karnataka High Court after taking

into considerations several judgments of the Apex Court had held that each case should be decided on its own evidence and merit. However, at this

stage, the only case that is before me is the present one which is Mohanpur P.S. Case No. 31 of 1990 and the evidence of this case has been brought

before me and though the judgment of the other cross case has also been brought before me which has been exhibited as Ext.A in the trial court and I

have also gone through the judgment, however, basing myself on the evidences of the witnesses herein regarding their injuries and also the evidence of

the IO I have not been led to conclude any different than what was concluded by the learned trial court.

Therefore, regarding appellant, Panchu Mandal, conviction under Sections 326/ 148 IPC is sustained and upheld while the remaining appellant Nos.

2 to 7, their conviction is also upheld under Sections 323/ 147 IPC.

However, the mitigating circumstances pleaded for by the counsel for the appellants that this is an old case of the year 1990 and that all the

appellants have faced the rigors and vigors of trial is also taken into consideration. Bearing in mind the prayer for alleviation of the sentence to some

extent, Panchu Mandal is sentenced to six months imprisonment with any period already undergone by him to be deducted from the same. The fine of

Rs.500/- that was imposed on him remains intact with default conditions. The remaining appellants are sentenced for fifteen days simple imprisonment

, any period already undergone to be subtracted from the same. If they have undergone any period more than this modified fifteen days then the

period already spent in custody by them will be considered as period sufficiently undergone by them and no other period of imprisonment will be

imposed on them.

Accordingly, their bail bonds are cancelled. Lower Court or concerned successor court is directed to take steps for procuring the arrests of the

appellants.

Accordingly, this appeal is dismissed with aforesaid modification in conviction and sentence.