Jhari Mahato v. The State of Jharkhand

Judgment

1. I have already heard the arguments of Mr. Rajesh Kumar, learned counsel for the appellant and Mr. Shiv Shankar Kumar, learned A.P.P. for State.

2. The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 04.06.2009, passed by learned Additional Sessions Judge, Fast Track Court-VI, Dhanbad, in S.T. Case No. 30 of 2003, whereby and whereunder the appellant has been held guilty for the offence under Sections 307 and 341 of the I.P.C. and sentenced to undergo R.I. for five years along with fine of Rs.500/- with default stipulation for the offence under Section 307 of the I.P.C. and S.I. for 15 days for the offence under Section 341 of the I.P.C. Both the sentences were directed to run concurrently. Factual Matrix

3. Factual matrix giving rise to this appeal is that on 04.09.2002, the informant (P.W.-5) had gone to Maheshpur colliery for discharging his duties and when he was returning at about 04:00 P.M. from his duty by his bicycle and reached near the pond of his village at the Baniyan Tree, in the meantime, all of a sudden three persons intercepted him. It is alleged that the present appellant gave a knife blow on the throat of the informant. The second aim of knife blow was warded off by him and the informant leaving his bicycle fled away towards his house in injured condition. The injured informant was brought to hospital for treatment by his family members. On the basis of fardbeyan of the informant, Baghmara P.S. Case No.191 of 2002 was registered for the offence under Sections 341, 324, 326 & 307 of the I.P.C. After conclusion of investigation, charge-sheet was submitted against the present appellant for the offence under Sections 341/324/326/307/34 of the I.P.C.

4. The case was committed to the Court of Session, where S.T. Case No. 30 of 2003 was registered. Charges were framed against the present accused appellant on 28.03.2003 under Sections 307 and 341 of the I.P.C. The sole accused/appellant denied the charges levelled against him and claimed to be tried.

5. In the course of trial, altogether eight witnesses were examined by prosecution apart from documentary evidence.

6. On the other hand, no oral or documentary evidence has been adduced by defence.

7. The case of defence is denial from occurrence and false implication due to previous enmity.

8. The learned Trial Court after scrutinizing the evidence available on record arrived at definite conclusion that the prosecution has been 2 able to prove the charges under Sections 307 & 341 of the I.P.C. against the appellant and held guilty and sentenced as stated above. Submissions on behalf of the Appellant: -

9. Assailing the impugned judgment learned counsel for the appellant submits that except the informant-cum-injured (P.W.-5), there is no eye-witness of the occurrence. The F.I.R. itself discloses that three persons intercepted the informant and he was injured by the present appellant only and under injured condition he went to his own house, thereafter, brought to hospital. Therefore, except the informant, there is no eye-witness of the occurrence. Admittedly, there was family dispute with the present appellant, therefore, he has been falsely implicated in this case. It is further submitted that the informant has sustained a single injury near his neck which might be caused by fall from his bicycle and due to enmity he has falsely implicated the appellant. The injury of the informant allegedly caused by knife also does not find corroboration from his medical examination report. P.W.-7, Dr. Uma Shankar Ram has simply stated that he found cut injury on throat, but no dimension or size of the injury has been noted in the injury report. Under what circumstances and for what reasons, he found injury to be grievous in nature, has not been mentioned in the injury report (Exhibit-5). This witness clearly admits that such type of injury may be caused due to fall on barbed wire. It is further submitted that the informant himself has admitted that the appellant is his cousin and has illicit relationship with

his first wife Panu Devi. On protest by the informant, he was threatened to be killed, but no day or time of threatening or any illicit relationship with the first wife of the informant has been brought on record, which 3 clearly indicates that due to falling down on barbed wire, the informant sustained injury and due to previous enmity he has lodged false case against the present appellant. The learned Trial Court has failed to properly appreciate the evidence of injured informant and his motive for false implication and material contradictions appearing in his fardbeyan and the evidence before Court has also not been taken into consideration. The informant (P.W-5) has materially improved his earlier version as regards presence of three other witnesses who brought him to home and thereafter to hospital, who have also seen the occurrence. The motorcycle of appellant was seized in this case due to improvement of the informant that after the occurrence, the accused fled away by his motorcycle. Therefore, the testimony of informant does not appear to be absolutely reliable and cannot be made basis for conviction without corroboration from independent source. The injury report is also vague and ambiguous as regards nature of injury sustained by the informant. The discharge slip was also produced by the injured during trial of the case and not collected by the I.O. before submission of charge-sheet. Therefore, prosecution has miserably failed to prove the charges levelled against the appellant as such conviction and sentence of the appellant passed by learned Trial Court is liable to be set aside and this appeal may be allowed. In the alternative, it is submitted that the genesis, manner and nature of injury sustained by the informant clearly goes to show that he has sustained simple injury on his neck caused by some sharp cut object. Therefore, the offence under Section 307 of the I.P.C. is not attracted in this case due to lack of required intention and knowledge at best the 4 offence falls under Section 324 of the I.P.C. It was first offence of the appellant and he has never been convicted for any other offence prior to occurrence and post conviction also. He has not indulged in any criminal activities rather living as a law abiding citizen. The learned Trial Court in spite of taking into notice that it was first offence of the appellant declined to extend the benefit of Section 4 of the Probation of Offenders Act without recording any special reasons as mandated under law to which the appellant deserve. Submissions on behalf of the State: -

10. On the other hand, learned A.P.P. for the State defending the impugned judgment on merits has contended that the learned Trial Court has very wisely and aptly scrutinized and analyzed oral as well as documentary evidence available on record. There is no illegality or infirmity in the impugned judgment calling for any interference in this appeal which is devoid of merit and fit to be dismissed.

11. The only point for determination in this appeal is that “as to whether the conviction and sentence of the appellant passed by learned Trial Court suffers from any serious error of law calling for any interference in this appeal?”

12. Before adverting to imparting my verdict on above point, it is desirable to take brief resume of ocular testimony of witnesses examined during trial. P.W.-5-Rooplal Mahto is the informant injured-cum-sole eye witness of this case. According to his evidence on 04.09.2002 at about 04:30 P.M., he was returning from his colliery duty and reached near the village pond in the meantime, Jhari Mahato and two others caught hold 5 of him and Jhari Mahato gave a knife blow on his neck with intention to commit his murder. He was also attempting to cause second blow but this witness raised alarm then Suchan Mahto, Prem Chandra Mahto and Hari Pd. Rawani arrived at the place of occurrence and all the three persons fled away by motorcycle. He narrated about the occurrence to Suchan Mahto, who told that he himself has seen the occurrence. He was brought to his house thereafter, went to hospital. He has also written the incident because he had no hope to survive. He was discharged from Bokaro General Hospital and also filed discharge certificate as Exhibit-3 and his writing just after the occurrence as Exhibit-4 with objection. He further states that his fardbeyan was recorded by police at Bokaro General Hospital over which he has proved the signature as Exhibit1/1. The motive behind the occurrence is alleged that the accused Jhari Mahato used to frequently visit with his first wife which was protested by him then Jhari Mahato threatened him to kill. In his cross-examination, he admits that Jhari Mahato is his cousin, his attention has been drawn towards contradiction that in his fardbeyan he has not stated that he raised alarm then Suchan Mahto, Prem Chandra Mahto and Hari Pd. Rawani were arrived at the place of occurrence. He further admits that all the three accused persons were talking with each other and suddenly two persons caught hold of him from front side and started querying him who were not his local villagers. Jhari Mahato was also standing there then he suspected about some incident and scared and attempted to flee away and came under his bicycle. He also admits that he ran about 30-35 feet raising alarm bachao bachao. This witness further states that Jhari Mahato gave knife blow 6 from front side on his neck, the size of knife was about one feet due to injury sustained, profuse bleeding started from his neck and his whole clothes were stained with blood and he fell down on the earth. He can’t say his blood stained clothes were given to police or not. He further states that Suchan Mahto and Prem Chandra Mahto brought him on cycle to his home. Thereafter, he became unconscious and regain consciousness at Bokaro General Hospital. This witness further admits that his first wife is Panu Devi who has lodged a criminal case against this witness and residing at her paternal home. He has denied the suggestion of defence that he has falsely implicated Jhari Mahto because he was helping his wife for justice. Jhari Mahato was not present at the place of occurrence rather other two unknown accused persons who might have caused injuries to him. P.W.-1-Suchan Mahto-This witness has stated that at about 04:30 P.M., on the date of occurrence, he was present at the pond and saw that Jhari Mahato along with two other persons was coming on a motorcycle. At that time Rooplal Mahto was also returning from his duty and reached near the pond then two unknown miscreants caught hold of Rooplal Mahto and Jhari Mahato whipped out a knife and inflicted knife blow on neck of Rooplal Mahto due to fear he concealed himself. In the meantime, Sudeshwar Mahto, Pramod Kumar Mahto and Hari Rawani also reached there then accused persons fled away by motorcycle. Rooplal Mahto fell down from his cycle and became unconscious then they brought him to Dumra Hospital thereafter, Central Hospital, Dhanbad and later on to Bokaro General Hospital. He has further stated 7 that due to family dispute Jhari Mahato has assaulted to Rooplal Mahto. This witness is also cousin of Jhari Mahato. In his cross-examination, he specifically admits that when he brought injured Rooplal Mahto under unconscious state. He has denied the suggestion of defence that he has seen no occurrence and was not present at the place of occurrence and given false evidence due to inimical terms with the accused. P.W.-2-Prem Chandra Mahto is the son of informant. He has also claimed to be eye-witness of the occurrence. According to his evidence, he was playing cricket at a distance of 100 meter from the place of occurrence and heard hulla of his father bachao bachao then along with Hari Pd. Rawani went to place of occurrence and saw that accused Jhari Mahato was giving knife blow to his father on his neck. He along with others chased the accused persons but they managed to flee away by motorcycle No. BPO1700. Thereafter, his father was brought to home and ultimately admitted to Bokaro General Hospital for treatment. In his cross-examination, this witness admits that his step-mother and step-brother are under inimical terms with his father and this witness. He further states that Jhari Mahato was under visiting terms with his step-mother and step-brother and used to entice them against his father. This witness has stated that hearing father voice he and Hari Prasad ran away towards place of occurrence then saw his father was lying down thereafter, took his father home on his bicycle. He further states that his mother informed about the occurrence at Barora police 8 station. He has denied the suggestion of defence that he has not seen the occurrence rather giving false evidence due to inimical terms with Jhari Mahato. P.W.-3-Hari Prasad Rawani was also playing football and hearing hulla rushed towards the pond, where saw Rooplal Mahto was lying under injured condition and there was cut injury on his neck. He heard from local persons that Jhari Mahto and other two miscreants after assaulting to Rooplal Mahto fled away on the place of occurrence. P.W.-4-Sibeshwar Mahto has also stated that after hearing hulla he went to place of occurrence and saw Rooplal Mahto in injured condition lying on the road in front of his house. Rooplal Mahto has sustained injury on his neck as stated nothing else. P.W.-6-Raju Mahto is a witness of seizure list of motorcycle No.BPO1700 which was seized from house of Jhari Mahato on

29.11.2002. P.W.-7-Dr. Uma Shankar Ram has examined the injured Rooplal Mahto on 04.09.2002 and found following injury:- (i) Cut injury on throat (trachea) The injury was grievous in nature caused by sharp instrument which is marked as Exhibit-5. In his cross-examination, he admits that in the injury report he has not mentioned the size of wound and such type of injury may be caused due to fall upon barbed wire. P.W.-8-S.I., Kamala Kant Mishra has recorded the fardbeyan of injured Rooplal Mahto which is proved as Exhibit-6. 9

13. From the aforesaid discussion of oral testimony of witnesses, it is crystal clear that the injured informant has levelled direct allegation of assault by knife blow on his neck caused by the present appellant, which also find corroboration from evidence of P.W.-7, Dr. Uma Shankar Ram, who has proved the injury report of the informant. The rest of the witnesses examined in this case have arrived at the place of occurrence immediately after commission of offence by the accused persons. The testimony of sole injured and other witnesses cannot be disbelieved simply by reason of some disputes with the appellant and that there is possibility of false implication. It is tried that enmity is double aged weapon providing motive both for the offence as well as for false implication. It appears that the learned Trial Court has discussed the evidence of witnesses in threadbare manner including the materials elicited the cross-examination of the witnesses. The factual background under which the occurrence took place and the nature of injury sustained by the informant does not appear to constitute the offence under Section 307 of the I.P.C. The medical examination report of the informant does not show the dimension of injury as to its length, width and intensity. Therefore, there is no basis for assuming the aforesaid injury to be grievous in nature or dangerous to life. Admittedly, the informant was admitted in hospital and got treatment for about one month, but his admission and discharge slip was not collected during investigation and has not been proved by any competent witness. Therefore, the reasonable inference from the injury report can be drawn that it was simple in nature caused by any sharp cutting object. It further transpires that the learned Trial Court has failed to 10 consider the above aspect of the matter and simply because it is baldly stated by the informant that he was assaulted with intention to kill him, the learned Trial Court has held the appellant guilty for the offence under Section 307 of the I.P.C.

14. It has been held by the Hon’ble Apex Court in the case of Jage Ram versus State of Haryana, (2015) 11 SCC 366 as reported in (2015) 4 SCC (Cri) 425, at para-12 that:- “12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused persons intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.”

15. In my considered view due to lack of sufficient evidence proving the required intention/knowledge for constituting the offence under 11 Section 307 of the I.P.C. and the exact nature of injury sustained by the informant, I am constraint to hold that the conviction and sentence of the appellant for the offence under Section 307 of the I.P.C. is not sustainable under law rather the case falls under Section 324 of the I.P.C.

16. In view of above, the conviction of the appellant for the offence under Section 307 of the I.P.C. is set aide and he is held guilty for the offence under Sections 324 and 341 of the I.P.C.

17. So far the plea taken by learned counsel for the appellant that it was first offence of the appellant has not been rebutted by the State and from perusal of impugned judgment also it reveals that it was first offence of the appellant and he has no criminal antecedent or any prior conviction. Hence, having regard to the facts and circumstances of the case, nature of offence committed by the appellant, the genesis and manner of occurrence, the appellant deserve to be extended the benefit of Section 4 of the Probation of Offenders Act.

18. Accordingly, this appeal is dismissed with modification in conviction and sentence to the extent that instead of undergoing substantive sentence of imprisonment awarded to the appellant by learned Trial Court, the appellant is hereby directed to be released on furnishing bond of Rs.10,000/- (Rupees Ten Thousand) with one surety of like amount to the satisfaction of learned trial court under Section 4 of the Probation of Offenders Act, 1958 within two months from the date of this order for maintaining peace and be of good behavior for one year from the date of furnishing the bond.

19. If the bond is not furnished within above stipulated time, the learned Trial Court shall issue notice upon the appellant to secure his 12 attendance for furnishing the bond.

20. In case of violation of terms and conditions of the bond, the appellant shall be called upon to receive the sentence for the offence under Section 324 of the I.P.C.

21. Pending I.A(s), if any, stands disposed of.

22. Let a copy of this judgment along with Trial Court Record be sent back immediately to the court concerned for information and needful. (Pradeep Kumar Srivastava, J.) Jharkhand High Court Dated 24/06/2026 Arpit/ N. A. F. R. Uploaded on 25/06/2026 13