Sadhan Mahato vs State of West Bengal

Indrajit Chatterjee, J. :- This court is hearing this appeal as against the judgement and order of conviction passed by the learned Additional District and Sessions Judge, Fast Track Court No.1, Purulia in S.T. 22/2012 (S.C. 84/2011) arising out of P.S. Case No. 18 of 2005 dated 25-07- 2005 (.G. Case No. 449/2005). The judgement was delivered on 11- 9-2014. In that criminal trial, in all 20 accused persons faced the trial in respect of the charge punishable under Sections 341/34, 326/34, 307/34 of the Indian Penal Code and the learned trial court was pleased to convict the accused, Sadhan Mahato (A-1), Dileswar Mahato (A-2), Bharath Mahato (A-3), Ram Mahato (A-4), Budheswar Mahato (A-5), Dasarath Mahato (A-6), Jagu Mahato (A-7), Samir Mahato (A-8) and Laltu Mahato (A-9).Other 11 accused persons were acquitted in respect of the charge and one accused, Sushari Mahato, figured as accused no. 20 in the judgement died during the pendency of the trial, even though her name appeared in the cause title of the judgement. Learned trial court after recording evidence of 16 P.Ws., one D.W. and on scrutiny of the documents held those nine accused persons guilty in respect of the charge punishable under Section 324 of the Indian Penal Code and all were sentenced to suffer rigorous imprisonment for three years each and they were also directed to pay fine of Rs.2,000/-, in default, to suffer simple imprisonment for two months.

The case before the learned trial court can be stated in brief thus :-

That one FIR was lodged by Bangsidhar Mahato with Kenda Police Station, District � Purulia on 25-7-2005 which gave rise to P.S. Case No. 18 of 2005 dated 25-7-2005 under Sections 341/325/323/326/307/506/34 of the Indian Penal Code against the 21 FIR named accused persons. It was disclosed in the FIR that the incident took place on that date at about 6-00/6-30 A.M. in the morning on the eastern side of Gosaihir of village Kenda. It is apparent from the FIR that there was dispute between the parties as regards some landed property and one Salish was going on for an amicable settlement. Pending that Salish, it was claimed by the de facto complainant that his father Amulya Mahato (P.W.6) went to that field at about 6-00 A.M. in the morning and found the accused Ram Mahato and Bharath Mahato to cultivate that disputed land. He returned back to his home and informed his son (P.W.1) regarding that incident.

It was the further case of the prosecution that thereafter both the father and the son went to that field and requested them not to plough the land when all on a sudden, 19 accused persons came out from a bush and those accused persons along with Ram Mahato and Bharath Mahato assaulted both P.W.1 and P.W.6 by lathi, iron rod, Tangi, Kurul below their knees, right arms and also on the head to finish them. Thereafter the accused persons left the place assuming the victims to be dead. P.W.2 (Dilip Kumar Mahato), P.W.3 (Santosh Mahato), P.W.4 (Kalipada Mahato), P.W.5 (Danu Mardana) and P.W.7 (Dharanidhar Mahato) came to the spot and shifted the victims first to Kenda police station and from there, both the victims were taken to Purulia Sadar Hospital for treatment. There in that hospital, the victims remained for three days and it was further claimed by the de facto complainant in his evidence that he remained in Tata Main Hospital at Jamshedpur for 19 days.

The matter was investigated by the S.I. Dinabandhu Chakraborty (PW.16) and during the course of investigation, he examined the available witnesses and recorded the statement under Section 161 of the Cr.P.C., prepared sketch map with index, collected the medical reports of the victims. He seized some four numbers cloths which were marked as material Ext.1 collectively before the learned trial court. During the course investigation, one FIR named accused died.

The case was committed to the court of sessions and ultimately the case was transferred to the present trial court.

Learned Counsel, Mr. Mukherjee, appearing on behalf of the defence submitted by taking me to the evidence on record to show that P.W.1, P.W.4 and P.W.6 deposed that before the FIR was lodged, the victims were taken to the police station where they divulged their story to the police and thereafter the victims were taken to Purulia Sadar Hospital whereas the FIR was lodged about 8-35 P.M. and as such the FIR is hit under Section 167 of the Cr.P.C. It was also claimed by the learned Counsel that the original FIR was withheld to give more colour and to falsely implicate these accused persons. He submitted that even though the charge was framed against the accused persons for the offence punishable under Sections 341/326/307 of the Indian Penal Code, all the charges failed and the learned trial court convicted the present accused persons on surmises and conjectures. He further submitted that before the doctor, the names of the appellants were not discussed.

On behalf of the defence, it was further argued by Mr. Mukhrejee by taking me to the evidence of P.W. 1 that this witness did not say a single word that Ram Mahato and Bharat Mahato put any blow on the victim. He further submitted that out of the persons named by P.W.1, Sarat Mahato, Phalari Mahato, Madan Mahato, Dasharath Mahato and Santosh Mahato were acquitted by the trial court. He further submitted on scanning the evidence of P.W.1 that practically there was no eyewitness of the incident and only the victims were allegedly there at the place of occurrence and other persons came thereafter. He then submitted that the FIR was lodged after 14 hours.

By taking me to the evidence of P.W.5, Danu Mardana, learned Counsel submitted that this witness deposed "I informed O/C about the incident at P.S. O/C recorded the fact stated by me. I signed over the said paper." Thus, he tried to convince this court that the statement made by this witness to the said O/C would have been treated as the FIR but unfortunately that was not produced by the prosecution and as such the present FIR which was marked as Ext. 1 before the trial court ought not to have been relied by the trial court. As to the presence of the scribe at the hospital, he submitted that P.W.1 deposed that this man did not accompany him to the hospital. But on my asking, learned Counsel had to concede that this Ardhendu Pal, however, went to hospital following P.W.1. He submitted that this Ardhendu Pal is the scribe of the FIR. He took me to the FIR to show that the de facto complainant claimed that after the incident they became senseless but when P.W1 and P.W.6, i.e., the two victims were examined, they did not depose that they became senseless. Even one P.W. i.e., P.W.3 categorically deposed that Amulya and Bangsidhar, i.e. P.W.1 and P.W.6 did not become senseless after the incident. He submitted that other witnesses examined by the prosecution are not vital. He took me to the evidence of P.W.6, i.e. the father of the P.W.1 and another victim of this case. In his evidence, it was argued by Mr. Mukherjee that this witness did not say that actually Ram Mahato assaulted either P.W.1 or P.W.6. In the same breath, he submitted that even then this Ram Mahato was convicted by the trial court. While scanning the evidence of this witness, he submitted that there is no person named, ''Binu'', in this case. As regards the accused/appellant, Jagu (A - 7), it was his submission that this Jagu is now 95 years. He took me to the evidence of P.W.6 to show that when this P.W.6 was examined in 2012, the age of the said Jagu was 90 years.

Learned Counsel took me to the evidence of two doctors, i.e. P.W.14 and P.W.15 to convince this court that the doctor did not take of the injuries allegedly sustained by the victims and the injuries could not be proved by the prosecution and as such the learned trial court ought not to have relied upon the version of P.W.1 and P.W.2 that they were seriously injured on the date of the incident. As regards the evidence of P.W.14 he submitted that even though there is note in his evidence that the doctor noted fracture on the right tibia, left tibia, right shoulder but the X-ray reports were not produced. He took me to the cross-examination of the said doctor wherein the doctor deposed that X-ray reports about which he referred to in his examination in chief were not available when he was examined. He further submitted by taking me to Ext. 3/1 that there is no date on which date Bangsidhar Mahato was released from the hospital. Regarding the evidence of P.W.15, he submitted that as per the evidence of the doctor, the injuries as allegedly suffered by P.W.6 might have been caused by lathi and that the injuries suffered by Bangsidhar (P.W.1) might have been caused by lathi and tangi. He further submitted by taking me to the injury reports marked as Exts.4/1, 5 series and 5/1 to convince this court that actually the victim party did not receive any fatal injury to convict the accused persons in respect of the charge punishable under Section 324 of the IPC. He further submitted that the learned trial court did not take recourse to Section 34 or Section 149 to convict the accused in respect of charge punishable under Section 324 of the IPC.

He also attacked the prosecution story on the ground that the prosecution failed to make out a positive case that by what type of weapon the accused assaulted the victim and as such the benefit must go in favour of the accused/convicts.

It was submitted by Mr. Mukherjee by taking me to the 313 Cr.P.C. examination of the accused to show in which manner such examination was done and the accused persons were prejudiced due to such type of examination under Section 313 Cr.P.C.

Mr. Mukherjee submitted by taking me to the evidence of P.W.1 that this evidence is scrutinized then there were six phases of the incidents � 1) that Bharat Mahato and Ram Mahato were ploughing the disputed land, 2) P.W.-1 and P.W-6 requested them to stop the cultivation till the dispute is settled but Ram and Bharat did not pay any heed, 3) that thereafter from behind the Palas trees, Sarat Mahato (acquitted), Phalari Mahato (acquitted), Madan Mahato (acquitted), Sadhan Mahato (A-1) and Dileswar Mahato (A-2) appeared with tangi and axe and they hit blows on the knee and elbow of P.W.6, 4) thereafter Dasarath Mahato (acquitted), Santosh Mahato (acquitted), Budheswar Mahato (A-5) and Jagu Mahato (A-7) aged more than 19 years on that point of time assaulted P.W.6 by iron rod and sticks, 5) when P.W.1 tried to obstruct them he was also attacked by tangi, axe, kural, sticks and rod which fractured the leg of the victim and also P.W.1 sustained injuries on his right hand which was also displaced, and 6) when both of them fell down on the ground, then Samir Mahato (A-8), Laltu Mahato (A-9) and Jagu Mahato (A-7) abused them and Susari Mahato (acquitted), Samala Mahato (acquitted), Dingli Mahato (dead), Kalo Mahato (acquitted) and Ramon Mahato (dead), threw salt on the injuries of the victims. He submitted that P.W.6 contradicted P.W.1 and as per his evidence, the incident was decided into two parts � 1) that Bharat (A-3), Sadhan (A-1) and Dileswar (A-2) assaulted both him and P.W.1 by tangi, sword and rod, 2) thereafter Jagu (A-7), Dasarath (A-6), Binu (nowhere mentioned), Samir (A-8), Sristidhar (acquitted), Laltu (A-9) and Budheswar (A-5) assaulted him on his head (no weapon of offence was described).

Thus, he submitted that if the entire evidence of P.Ws 1 and 6 are scan properly then the accused persons ought not to have been convicted under Section 324 of the I.P.C. He mainly submitted regarding the lack of evidence against Ram, Bharat, Jagu, Dasarath, Samir, Sristidhar, Laltu and Budheswar banking upon the evidence of P.W.6 that they only assaulted this P.W.6 but P.W.6 did not say regarding the weapon of offence used by such accused persons. He further submitted that in such a case, the village politics has a great role to play and it is the intention of the de facto complainant party of such a case to implicate as many persons as possible and that the alleged injury caused by A-7, A-6, A-8, Sristidhar, A-9 and A-5 about which I have already discussed was not taken care of by both the medical officers of their reports marked as Exts. 3 and 5.

On legal point, learned counsel submitted a Full Bench decision of the Apex Court as reported in A.I.R. 2014 S.C 187 (Lalita Kumari v. Government of U.P. & Ors.) wherein the Supreme Court reiterated the principle under Section 154 of the Cr.P.C. that any cognisable offence is disclosed then the police must register the F.I.R. This decision was pressed into service by the defence to attack the prosecution story that before the lodging of the actual F.I.R. (Ext.-1), the police was told both by P.W.1 and P.W.6 regarding the incident and P.W.5 further deposed that he not only disclosed the incident but that was recorded by the police and he signed on it. It is better for me to dispose of this point at this stage.

Mr. Dutta, learned Advocate appearing on behalf of the State, submitted that this decision is under Section 166A of the I.P.C. and that was decided by the Apex Court on 12-11-2013 and in the instant case before the floor of this Court, the incident took place in 2005 and as such, this decision will not apply in this case. I differ with Mr. Dutta as Section 154 was there even before this decision. It is true that Section 166A of the I.P.C was introduced in 2009. The question is, even if I believe the version of P.W.5, that his statement was reduced into writing and also signed by him and further that P.W.1 disclosed about the incident to the police but the police thought it wise not to register a case, I cannot say that the material fact was suppressed unless this Court is convinced that what those witnesses told were enough to make the offence a cognisable one. P.Ws. 1 and 5 differed in between themselves on this point as P.W.1 did not depose that his version was reduced into writing or that in his presence P.W.5 who was also with them at the police station disclosed the incident to the police which was reduced into writing. Thus, this Court is satisfied that if any incidence of cognisable offence is disclosed to the police officer and that is reduced into writing but the police did not start a case, even for such lapse if I admit the version of Mr. Mukherjee, the entire case of the prosecution cannot be branded as false one. It is the tendency of the police to hear from the party regarding the incident but not to register a case instantly unless it is gruesome and the complainant party is backed by some power. The police is more interested in curbing the registration of the cases. For this reason, Section 166A of the I.P.C. had to be introduced.

On the point of dispute between ocular evidence and medical evidence, Mr. Mukherjee cited a decision of the Apex Court as reported in 2004 SCC (Cri) 428 (State of Rajasthan v. Magni Ram) wherein the Apex Court held that if the evidence of the eye witnesses are not trustworthy and unreliable, the Appellate Court should not interfere with the judgment. I admit that it is a settled proposition of law. Learned Counsel also cited a decision of the Apex Court as reported in A.I.R. 1975 SC 1727 (Ram Narain v. State of Punjab (in Criminal Appeal No. 258 of 1974 and Jaggar Singh v. State of Punjab & Ors. (in Criminal Appeal No. 259 of 1974) where the Apex Court disbelieved the prosecution evidence in a case of murder wherein the prosecution evidence was inconsistent with the medical evidence and ballistic report. It was further held by the Apex Court that if the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert then this may be treated as more fundamental defect in the prosecution case.

Regarding this decision, I am of the view that in the case before the floor of this Court it cannot be said with emphasis that the evidence of the witnesses for the prosecution was totally inconsistent with the medical evidence. It is needless to say that contradictions are bound to happen in a true case. Rather the court may think a case to be false if a witness deposes in a ''parrot like manner'' as to the incident. In the instant case before the floor of this court, the incidence took place in 2005 and the witnesses disposed in 2011. The witnesses were rustic village people and as such, the contradictions which may have been there about which I shall be coming later on cannot take away the entire air from their mouth to brand them as untruthful witnesses. The Indian witnesses have a tendency to exaggerate practically everything and the court is to take the chaff out of the grain.

Regarding the defective examination under Section 313 Cr.P.C, learned Counsel cited decisions of the Apex Court as reported in A.I.R. 1984 S.C. 1622 (Sharad Birdhichand Sarda v. State of Maharastra) and (2009) 2 C.Cr.L.R. (S.C) 253 (Inspector of Customs, Akhnoor J & K v. Yash Pal and Another). I have gone through these decisions.

Mr. Dutta, learned Advocate for the State, cited a decision of the Apex Court reported in (2014) 42 SCD 072 (Nar Singh v. State of Haryana) wherein the Apex Court held that even though the examination under Section 313 was defective one for that reason only, the accused cannot be acquitted unless it is shown that the accused persons were prejudiced. That decision has also authorised the Court of Appeal to get those accused persons before the Appellate Court to be examined afresh under Section 313 of Cr.P.C.

The point as regards the defective examination under Section 313 was not taken before the Trial Court. I have gone through the examination under Section 313 Cr.P.C. I admit the argument of Mr. Mukherjee that the examination under Section 313 of Cr.P.C. was done by the learned Trial Court in a slipshod manner but the question of prejudice cannot be contemplated in such a case as the accused person duly answered the question on all material point.

On behalf of the prosecution, it was submitted by Mr. Dutta by taking me to the evidence adduced by the P.Ws to show that neither there was any delay in lodging the F.I.R., that practically there was no material contradiction between the witnesses, that the contradiction as came out between the ocular evidence and the expert evidence are not of such type to set aside the evidence of the eye witnesses and that the learned Trial Court rightly convicted the accused persons in respect of the charge under Section 324 of the I.P.C as P.W.1 and P.W.6 took out the names of each accused persons as the assailants. He cited a decision of Leela Ram v. State Haryana (1999) 9 SCC 525 : 2000 SCC (CRI) 222 wherein the Apex Court held that the re-action of eye witnesses may differ as regards the mental condition of a particular eye witness.

I have travelled through the witnesses as examined by the prosecution. The learned Trial Court rightly banked upon the evidence of P.Ws. 1 and 6. They are the victims of the case and if the evidence of these witnesses are scrutinized the presence of any other public witness at the locality is ruled out. I am thankful to Mr. Mukherjee for pointing out in details regarding the evidence of P.Ws 1 and 6. I do not consider that the F.I.R. was lodged at a belated stage. It is very natural for a wife to be more attentive towards her injured husband who was then in hospital than that all reporting the matter to the police station.

I admit the version of Mr. Mukherjee that the stages of the incident as depicted by P.W.1 has not been supported by P.W.6. I am to make permutation and combination vis-à-vis these two witnesses, keeping in my mind the injury report of P.W.1 as I have already told while depicting the 6 stages.

I admit that P.W.1 did not depose a single line that Ram and Bharat inflicted any blow on the victims and as such, as Section 34 was not pressed into service by the court. There was no question convicting Ram and Bharat and as such, this Court is of the view that both Ram and Bharat are to be acquitted.

What came out from the mouth of P.W. 6 was that they were assaulted by A-3, Sadhan (A-1), Dileswar (A-2) by the sharp cutting weapon and iron rod. This witness deposed that Jagu, Dasarath, Samir, Laltu and Budheswar assaulted this P.W.6 on his head unfortunately for the prosecution he did not disclose what type of weapon they used. The evidence of P.W.1 on this point was that P.W.6 was hit by iron rod and by sticks. The injury report which was marked as Ext.3 issued by Tata Main Hospital at Jamshedpur goes to show that P.W.1 was admitted in that hospital on 29th July, 2005 and that the doctor duly noted facture injury on the right leg apart from "contusion and bruises". The doctor also noted that as per orthopedic injury report the right leg was fractured and the injury was stated to be grievous by the said doctor in the report. As regards Ext. 4/1, i.e. the injury report of the local PHC on the reverse the doctor noted that the forearm of Amulya Mahato (P.W6) was factured and the doctor also noted the facture in the left leg "fibula". Ext. 5, i.e. the injury report of the Purulia Hospital also suggests facture injury sustained by Bangshidhar Mahato (P.W.1). Thus, there is no doubt that as per definition of Section 320 of the I.P.C. the facture injury is grievous in nature.

Evidence shows that the attackers attacked the victim party with sharp cutting weapon also but, both the doctors did not note any sharp cutting injury. I wonder how the Trial Court convicted the accused under Section 324 of the I.P.C. which deals with "voluntarily causing hurt by dangerous weapons or means". It may be noted that the Trial Court was impressed with the evidence that the victims were hit mainly by iron rod and lathi which may be treated as "dangerous weapon" if the situation so demands.

I have already acquitted Ram and Bharat from the conviction awarded. Now the question is what was the role of the other accused persons. If the evidence of P.W.6 is visualized then actually the vital blows were also given by Bharat (not believed by this Court) and by Sadhan Mahato and Dileswar Mahato. I repeat that the expert report, i.e. the evidence of two doctors has not supported the case that both the victims received injuries on their heads. This court is not unmindful of the fact that P.W.6 showed his right hand and head before the learned Trial Court but there is no note in the evidence what type of injury that P.W.6 tried to show to the Court. It is true that P.W.1 showed to the learned Trial Judge that he received injury on his head and that was stitched wound and cut marks 2 inches and � inches. Thus, there is difference between ocular evidence and the evidence of the doctor.

In such a case, it is better to seek support from the expert evidence and as expert evidence is lacking on this point and considering the tendency of the Indian witness to implicate some persons falsely in an incident, this Court feels that it is better to walk with the expert evidence and this being so, the story of attack subsequently by Jagu Mahato, Dasarath Mahato, Samir Mahato, Laltu Mahato and Budheswar Mahato, as claimed both by P.Ws. 1 and 6 may be viewed with suspicion and the accused-appellants are entitled to get the benefit on that score. No discharge certificate was produced from Tata Main Hospital in favour of P.W.1 that on which date he was discharged. P.W.1 tried to establish that he remained in the hospital for 19 days in that hospital and apart from this he remained in Purulia Hospital for three days. The discharge certificate of Purulia hospital is there.

Without any supportive documentary evidence issued by Tata Main Hospital, I do not like to believe the version of P.W.-1 and I can say that he tried to make his confinement for more than 20 days to cover this case under the clause "Eightly" as given in Section 320 of the I.P.C. Thus, the conviction in respect of those accused persons, I repeat Dasarath Mahato (A-6), Budheswar Mahato (A-5), Jagu Mahato (A-7), Samir Mahato (A-8) and Laltu Mahato (A-9) is also set aside.

With these modifications, as stated above, the judgment and order of conviction in respect of Sadhan Mahato and Dileswar Mahato are both affirmed in respect of the offence punishable under Section 324 of the I.P.C.

It was submitted by Mr. Mukherjee that this litigation was pending since 2005 and these accused persons are fighting this legal battle for roughly 10 years for which they have suffered mentally, physically and financially. It was submitted by the learned counsel for the defence that the learned Trial Court imposed the full sentence prescribed by the legislature in a conviction under Section 324 of the I.P.C. and showing mercy to these accused persons on the ground stated above. The sentence be reduced to some extent.

Mr. Dutta, learned prosecutor, has left the matter for the decision of this Court.

Considering the fact that the trial is pending since last 10 years this Court is of the opinion that the sentence imposed on them by the learned Trial Court be reduced to 1 and � year with a right to claim set of on the substantive sentence. The amount of fine imposed on these accused persons be, however, enhanced, from Rs. 2000/- to Rs. 7000/- i.d. to suffer S.I. for 4 and � months. If this amount of fine is realised, i.e. in total Rs. 14, 000/- then out of such amount of Rs. 4000/- each will go to the P.Ws.1 and 6 by way of compensation under Section 357 of the Cr.P.C.

Thus, the appeal is allowed in part without any costs.

Let a copy of this order be forwarded to the learned Trial Court with the Lower Court Records.

Both the convicts must surrender before the Trial Court with two months from this date to serve out the remaining part of the sentence and also to pay the fine amount.

The judgment has been dictated in open court and as such, learned counsel is well apprised regarding the order of this Court.

If this stipulated period is crossed by the appellants then the learned Trial Court will be at liberty to issue warrant of arrest against both the appellants. The accused-convicts are on bail and if they surrender within the same time, the sureties will be discharged from the bail bonds, but, if the stipulated time is not taken care of by the accused persons, then proceeding against the sureties will be started. The appellants, who have been acquitted, are also on bail, they are discharged from their bail bonds.