Alok Kumar v. The State of Jharkhand

challenged the happening of 28th June 2006 by producing 14/18 witnesses who all have made statements in the Court that on 28th June 2006 no incident as portrayed by the prosecution has happened.

In both the sessions trials, the trial Judge has accepted the testimony of PW1 and PW6 to convict Amit Kumar Mahto and other accused persons under sections 147, 323/149, 341/149, 353/149, 427/149 and 506/149 of the Indian Penal Code. However, the trial Judge has disbelieved the prosecution story that the accused persons have committed the offence under sections 148, 379/149 and 307/149 of the Indian Penal Code.

In Sessions Trial No.481 of 2010, the trial Judge has made discussions on the prosecution evidence in the following manner: “24. So far as charges levelled against the accused persons under Section 307/149 IPC is concerned, it is consistent case of the prosecution that on 28.06.2006 at about 3:00 P.M. when the informant reached to his office at Sonahatu by Vehicle No JH01E 6 Acquittal Appeal No.71 of 2018 & analogous cases 9343, then accused persons namely Amit Kumar Mahato, Manjeet Kumar Sahu, Birendara Mahato, Bhagirath Mahato, Panchanan Singh Munda, Shishir Kumar Mahato and Kameshawar Mahato being armed with lathi, danda, rod, knife, bow, arrow etc. were found assembled there. It is specific case of prosecution that having seen him Nand Kishore Mahto and Krishna Munda instigated the other accused persons to attack upon him and pursuant thereto Amit Kumar started pressing his neck by Nylon Rope whereas other accused persons assaulted with lathi, danda etc. causing several bleeding injuries. the provision, From perusal of testimony of informant as well as other witnesses who were present at the place of occurrence it is established that the accused persons in prosecution of common object of unlawful assembly had inflicted several blows to the victims causing injuries.

A similar discussion has been made by the trial Judge in Sessions Trial No. 481 of 2010(B). 8 Acquittal Appeal No.71 of 2018 & analogous cases

Mr. Sanjeev Kumar, the learned senior counsel for the appellant Amit Kumar Mahto has contended that wherever it is found that the prosecution has introduced false evidence and there is a doubt as regards the participation of the accused in the occurrence, the benefit of doubt must go to the accused. To further elaborate this point, the learned senior counsel for the appellant has taken us through the testimony of PW1, PW6 and PW7 who are the Investigating Officers of the case to demonstrate that there was a conspiracy hatched by Alok Kumar to falsely implicate this appellant by introducing false evidence.

Mr. Jay Shankar Tiwary, the learned counsel who appears for the convicts in Criminal Appeal (DB) Nos. 693 and 694 of 2023 has raised identical pleas to challenge the conviction of these appellants in Sessions Trial No. 481 of 2010(B).

As PW1, Alok Kumar has deposed in the Court that on 28th June 2006 at about 03:00 PM when he arrived at the Circle Office, Sonahatu he found that Amit Kumar Mahto along with several other persons had formed an unlawful assembly and, on his provocation, Nand Kishor Mahto, Hemant Puran and Krishna Munda @ Krisna Singh Munda attacked him with iron rod. He has further stated that Amit Kumar Mahto tried to throttle him with a nylon rope but with intervention of the employees of the Circle Office somehow he could be saved. He has also made a specific allegation against Kameshwar Mahto, Shishir Kumar Mahto and Manjit Kumar Sahu that they have assaulted him with lathi; Bhagirath Mahto had snatched his purse and; Birendra Matho had taken away HMT wrist watch. In the cross- examination, PW1 has admitted that there were several persons employed in the office of the Circle Officer at Sonahatu; his driver Rakesh Kumar was with him when he suffered assaults at the hands of the accused persons and there were complaints against him for not being punctual in the office. The aforesaid suggestions were given by the defence to the PW1 in his cross- examination to put forth a plea that other important witnesses were not produced in the Court and thereby truth has not come on the record.

PW1 is an injured witness. The testimony of an injured witness has always been put on a different pedestal in a criminal case. Least to say, the evidence tendered by an injured witness lends assurance to the Court 9 Acquittal Appeal No.71 of 2018 & analogous cases that being a victim of the crime narration of the incident by him would be more reliable. In “State of Maharashtra v. Tulshiram Bhanudas Kamble” (2007) 14 SCC 627 the Hon’ble Supreme Court has observed as under:

29. …. The witnesses examined on behalf of the prosecution, apart from being eyewitnesses, were injured witnesses. Their presence at the place of occurrence, therefore, cannot be doubted. Only because they were inimical to the respondents, the same by itself cannot be a ground to discard their evidence. Although in accepting the same, some amount of caution is required to be maintained. ……………………………………………………………………………… 39. Though it is true that it is not necessary to invariably accept the version of the injured witnesses but it is well settled that greater weight has to be given to the testimony of the injured witnesses. We see no reason to disbelieve them and we agree with the view taken by the trial court. (See Nain Singh v. State of U.P, State of Punjab v. Gurmit Singh and Ramappa Halappa Pujar v. State of Karnataka.)

Recently the Hon'ble Supreme Court has held in “Balu Sudam Khalde and another v. The State of Maharashtra” (judgment dated 29th March 2023 in Criminal Appeal No. 1910 of 2010) as under:

26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind: (a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.

The submissions raised on behalf of the accused that PW1 has not been truthful to the Court is liable to be rejected. The maxim “falsus in uno, falsus in omnibus” which is applied in the common law has not been applied by the Courts in India. As held by the Hon'ble Supreme Court in “Nisar Ali v. State of U.P.” AIR 1957 SC 366 this maxim is at best a rule of caution and wherever some inconsistency is found on an important aspect of 10 Acquittal Appeal No.71 of 2018 & analogous cases the case the Court may seek corroboration. This is a well-accepted proposition that the evidence of a witness may contain some embellishment and exaggeration and that is the reason the Hon'ble Supreme Court has reminded time and again that it is the duty of the Court to separate chaff from the grain. While so, merely because the evidence of a witness contains some minor omission, inconsistency or exaggeration his testimony cannot be rejected wholesale.

In “Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble” (2003) 7 SCC 749 the Hon'ble Supreme court has observed as under: “25. It is the duty of the court to separate the grain from the chaff. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence”. (See Nisar Ali v. State of U.P.)”

This is also a well-accepted proposition in law that evidence of a witness is examined in the context of normal human behavior and probabilities. In the “State of Rajasthan v. Kalki & Anr.” (1981) 2 SCC 752 the Hon'ble Supreme Court has observed that in the deposition of witnesses there are always normal discrepancies however honest or truthful they may be. In “Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra” (2010) 13 SCC 657 the Hon’ble Supreme Court has observed that while appreciating the evidence the Court has to take into consideration whether the contradiction/omission indicated in the testimony of witness is of such magnitude that they may materially affect the trial. However, we do not find any inconsistency or exaggeration in the testimony of PW1 so as to label him untruthful and unreliable witness. The trial Judge has rightly put implicit reliance on the testimony of PW1. Even stand alone, the evidence of PW1 is sufficient to record conviction of Amit Kumar Mahto, Manjit Kumar Sahu, Shishir Kumar Mahto, Kameshwar Mahto, Nand Kishor Mahto, Panchanan Singh Munda, Birendra Mahto and Krishna Munda 11 Acquittal Appeal No.71 of 2018 & analogous cases @ Krisna Singh Munda for the offence under sections 147, 323/149, 341/149, 353/149, 427/149 and 506/149 of the Indian Penal Code.

The trial Judge has found sufficient corroboration to the prosecution story from PW6. The evidence of PW6 has been criticized on the ground that he is a man of poor moral fabric. The defence has elicited from him that there were several complaints against him and he has gone to jail in connection to a defalcation case. There is no law of universal application or any procedure that evidence of a witness who has been found involved in a criminal case cannot be accepted. As a rule of prudence, the Court may require corroboration to the evidence of the testimony of such a witness but merely because it is shown to the Court that the witness has criminal antecedent his evidence cannot be disbelieved. The accused has brought on record the Attendance-sheet to demonstrate that on the day and at the time of occurrence PW6 was present in his office. However, in course of cross-examination this document was not brought to the notice of PW6 so as to elicit his response. This is the essence of a criminal trial that not only the accused the witness should also be provided an opportunity to explain a circumstance which the defence seeks to reply against him. Somewhere it is well said that no man should be condemned unheard. The effect of not confronting PW6 with the Attendance-sheet which allegedly bears his attendance on 28th June 2006 is that it cannot be inferred that he was not present at the place of occurrence.

PW2 D. K. Mitra who was Revenue Karamchari, PW3 Abhimanyu Swansi who was working as Clerk in the Sub-Divisional Office and PW4 R.J.S Munda who was a Peon in the office of the Circle Officer did not support the prosecution when they were called to tender evidence in the Court and were declared hostile at the instance of the prosecution.

The worth of the witness who did not support the case of the party calling him has been a vexed question. In “Khijiruddin v. Emperor” AIR 1926 Cal 139 and few other cases the opinion of the Courts was that the object of cross-examination of his own witness by a party is to discredit the witness in toto and to get rid of his testimony altogether. Around the same time, Terrell J. struck the opposite view in “Sohrai Sao v. Emperor” AIR 1930 Pat 247 and held that admissions of a witness in the cross-examination 12 Acquittal Appeal No.71 of 2018 & analogous cases by the party calling him can be relied upon by the party calling him. Finally, a Full Bench of Calcutta High Court settled the law in “Praphulla Kumar Sarkar v. Emperor” ILR (1931) 58 Cal 1404.

Rankin, C.J. has written in his opinion (at p. 1428-30 of the report):

In my opinion, the fact that a witness is dealt with under Section 154 of the Evidence Act, even when under that section he is ‘cross- examined’ to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence, or that the party who called and cross-examined him can take no advantage from any part of his evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. The rule of law is that it is for the jury to say.

The testimony of a hostile witness is not rejected in entirety and it is well-settled that a portion of the evidence of a hostile witness which is consistent with the case of the prosecution can be relied upon by the prosecution. In “Syad Akbar v. State of Karnataka” (1980) 1 SCC 30, the Hon’ble Supreme Court has held that as a legal proposition it is now settled that the evidence of a prosecution witness cannot be rejected wholesale merely on the ground that the prosecution has declared him hostile and cross-examined him. In his examination-in-chief, PW2 has stated that he was present in the office between 2:30 PM to 6:00 PM on 28th June 2006. Around 3:00 PM, when he heard sound of commotion (hulla-gulla) he came out from the office and saw that hundreds of persons have encircled the vehicle of the Circle Officer. However, he refused to identify the persons who were engaged in a scuffle with the Circle Officer and at this stage he was declared hostile. He was cross-examined on behalf of Amit Kumar Mahto and has spoken in favour of the accused. No doubt the defence can rely on the evidence of a hostile witness but there is a limitation to what extent the defence can refer to cross-examination of a hostile witness. After all, when a witness is declared hostile, he takes sides with the accused; therefore, the defence cannot rely upon the statement of a hostile witness denying the occurrence altogether. PW3 and PW4 have refused to say anything about the occurrence and their testimony is of no use for the prosecution. May be PW3 and PW4 did not support the prosecution story when they were tendering evidence in the Court and have been declared hostile but this is not a new phenomenon in a criminal trial; as held by the 13 Acquittal Appeal No.71 of 2018 & analogous cases Hon'ble Supreme Court in “Jayantilal Verma v. State of Madhya Pradesh (Now Chhattisgarh)” (2021) 12 SCC 71 – but that by itself cannot create doubt over the prosecution story. Similarly, non-examination of other employees from the Office of the Circle Officer shall not be a fatal flaw to reject the prosecution case. PW1 and PW6 have tendered sufficient evidence to establish complicity of the accused persons in the occurrence. In this context, it is well-remembered that section 134 of the Indian Evidence Act does not envisage examination of multiple witnesses to prove a fact.

There are other corroborative piece of evidence to support the judgment of conviction of the accused persons in Sessions Trial Nos. 481 of 2010 and 481 of 2010(B). As PW7, the Investigating Officer has tendered evidence in the Court that around 3:10 PM he reached the Circle Office at Sonahatu and found that 30-35 persons committing marpit. On the police arriving at the scene of occurrence, the accused persons tried to flee away but seven of them, namely, Amit Kumar Mahto, Manjit Kumar Sahu, Birendra Mahto, Bhagirath Mahto, Panchanan Singh Munda, Shishir Kumar Mahto and Kamehswar Mahto were apprehended at the spot. He has identified the material objects which were marked as Material Exhibit-I to IX. Presumably on a suggestion by the defence that he was acting on the instruction of someone else, the Investigating Officer has denied that he had received several telephonic instructions just before the occurrence. Moreover, we do not find any hint of animosity between him and the accused persons, and the plea of acting at the behest of someone else was like a shot in the dark because there is no suggestion from the defence who was that bigwig. The medical man has also lent sufficient corroboration to the prosecution story that around 03:00 PM on 28th June 2006 the accused persons formed an unlawful assembly and started assaulting Alok Kumar. Furthermore, the story of introducing false evidence through the currency note of 2007 has also not been accepted by the trial Judge who has recorded a specific finding that the year over the currency note was not legible.

The specific plea taken by Amit Kumar Mahto that he was not arrested at the spot rather from the house of his relative has been disbelieved by the trial Judge who has held as under: 14 Acquittal Appeal No.71 of 2018 & analogous cases ... … … … … …

25. …… … It is specifically submitted by learned defence counsel that at the time of occurrence accused Amit Mato was not at the place of occurrence rather he was arrested from house of his relative at about 6:00 P.M. In order to prove the aforesaid fact learned counsel has placed reliance over testimony of Amit Kumar Mahto who has examined himself in terms of Section 315 Cr.P.C. and deposed before the court that on the date of occurrence (28.06.2006) he was at house of his relative, from where he was arrested on false charges. None of the witnesses examined on behalf of the prosecution has supported this fact. Hence, the plea as taken by learned defence counsel has remained uncorroborated. There is yet another angle to examine the plea as taken by learned defence counsel. A careful perusal of Arrest Memo (Exhibit 5) makes it clear that accused Amit Kumar @ Amit Mahto was arrested from Sonahatu Circle Office premises. This Arrest Memo is duly prepared in presence of Independent Witnesses and further it is also signed by accused Amit Kumar. Therefore, under the given circumstances the plea of alibi as taken by learned defence counsel could not have been proved in terms of Section 103 of Indian Evidence Act and hence it is fit to be discarded as the defence has not been able to discharge the required burden of proof. … … … … … … … … ..

In a case of the nature of the present one, in which except Amit Kumar Mahto no other accused had taken a plea of alibi and this stands admitted that there was an unlawful assembly and the evidence on record amply demonstrate that Alok Kumar has suffered injuries in the incident, the defence set up by Amit Kumar Mahto that he has been falsely implicated in this case at the instance of some bigwig in league with whom Alok Kumar had hatched a criminal conspiracy to introduce false evidence is liable to be rejected. The defence set up by Amit Kumar Mahto is without any foundation and there is no suggestion put to PW1 that he was acting at the behest of someone else.

It is contended that Amit Kumar Mahto and for that matter the other accused had no motive to commit the crime as alleged against them. In a criminal trial, motive may play a significant role where the case of the prosecution is based on circumstantial evidence but in a case which is based on eyewitness account even if motive is not proved the same is not a significant aspect of the case. A seizure list has been prepared on the spot on 28th June 2006, some of the accused persons were arrested on the same day and a written report was given to the officer-in-charge of Sonahatu police station on the same day. These events which have happened on the same day 15 Acquittal Appeal No.71 of 2018 & analogous cases in quick succession leave no manner of doubt that there was no time for the prosecution party to fabricate evidence against the accused persons.

Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

The presence of the accused persons in the occurrence is proved. They were not bystanders and their participation in the occurrence is also proved. They had formed an unlawful assembly in furtherance of the common object of which the informant was assaulted and damage was caused to the official vehicle. Therefore, they have rightly been convicted with the aid of section 149 of the Indian Code for committing the offence under sections 323, 341, 353, 427 and 506 of the Indian Penal Code.

In “Lal Mandi v. State of W.B.” (1995) 3 SCC 603 the Hon'ble Supreme Court has observed as under:

5. ….. In an appeal against conviction, the appellate court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the “Appellate Court cannot legally interfere with” the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of an accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty-bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict....”

While so, we do not find any merit in Cr. Appeal (DB) No. 692 of 2023, Cr. Appeal (DB)No. 693 of 2023 and Cr. Appeal (DB) No. 694 of 2023 insofar as conviction of Amit Kumar Mahto, Manjit Kumar Sahu, 16 Acquittal Appeal No.71 of 2018 & analogous cases Shishir Kumar Mahto, Kameshwar Mahto, Nand Kishor Mahto, Krishna Munda @ Krisna Singh Munda, Panchanan Singh Munda and Birendra Mahto and for the offence under sections 147, 323/149, 341/149, 353/149, 427/149 and 506/149 of the Indian Penal Code is concerned.

In Acquittal Appeal No. 71 of 2018, Mr. K.N. Choubey, the learned senior counsel for the appellant who is none else but the informant of Sonahatu PS Case No. 42 of 2006 has contended that the castle of the order of acquittal under section 307/149 of the Indian Penal Code must fall in the face of the finding recorded by the trial Judge that Alok Kumar has suffered injuries in the incident.

The learned senior counsel has referred to the judgments in “Vasant Vithu Jadhav v. State of Maharashtra” (2004) 9 SCC 31 and “Anjani Kumar Chaudhary v. State of Bihar” (2014) 12 SCC 286 to contend that all that is required to be seen is whether the accused had requisite intention to attempt to murder, and nothing else.

In “Vasant Vithu Jadhav” the Hon’ble Supreme Court has observed as under: “9. In the aforesaid factual scenario it has to be seen whether Section 307 has application. Section 307 IPC reads as follows:

307. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds.

The offence under section 307 of the Indian Penal Code requires that if any act has been done with such intention or knowledge, and under such circumstances that if he by that act cause death, the accused would have been guilty of murder. Simply put, the act alleged must be of such nature that it would have caused death but on intervention of a third party or a circumstance the victim has finally survived. The judgment of acquittal under section 307/149 of the Indian Penal Code is primarily based on the ground that the prosecution has failed to establish that Amit Kumar Mahto had intention or knowledge as envisaged under section 307 of the Indian Penal Code. The act of Amit Kumar Mahto trying to strangulate Alok Kumar through a nylon rope has been found by the trial Judge lacking in knowledge and intention. In our opinion, merely because a mark of abrasion has been detected by the doctor around the neck of PW1 it cannot be held that Amit Kumar Mahto had requisite intention or knowledge so as to hold him guilty under section 307 of the Indian Penal Code.

The learned senior counsel for the appellants has further submitted that there is specific allegation against Amit Kumar Mahto that he exhorted others by saying “maro shale ko” which would clearly establish his intention of attempt to murder Alok Kumar.

The expression “maro shale ko” can be interpreted as to mean beat him [refer, “Matadin v. State of Maharashtra” (1998) 7 SCC 216]. Obviously, the intention of a person is a question of fact which can be gathered from the conduct of the accused or other attending circumstances in the case. The trial Judge has on appreciation of the evidence recorded a finding that the offence under section 307 of the Indian Penal Code is not made out. While dealing with a challenge to the judgment of acquittal, the High Court is required to keep in mind that unless it is shown that there are compelling circumstances acting as an Appellate Court the High Court shall not interfere with the judgment of acquittal. In the present case, there is no 18 Acquittal Appeal No.71 of 2018 & analogous cases apparent error, a serious error, committed by the trial Judge in holding that the prosecution has failed to prove the case under sections 148, 379/149 and 307/149 of the Indian Penal Code beyond reasonable doubt.

“Sheo Swarup v King Emperor” AIR 1934 PC 227(2) is the leading judgment wherein it has been held that the High Court shall always give proper weightage and consideration in such matters as to (i) the views of the trial Judge as to the credibility of the witnesses (ii) presumption of innocence in favor of the accused (iii) right of the accused to the benefit of any doubt and (iv) slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.

“Sheo Swarup” was referred to and relied upon in “Chandrappa v. State of Karnataka” (2007) 4 SCC 415 wherein the Hon'ble Supreme Court has held as under: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court”.

Having regard to the aforesaid facts and circumstances in the case, we find that the judgments of acquittal passed in Sessions Trial No. 481 of 2010 and Sessions Trial No. 481 of 2010 (B) do not require 19 Acquittal Appeal No.71 of 2018 & analogous cases interference by this Court and, therefore, Acquittal Appeal No. 71 of 2018 and Acquittal Appeal No. 73 of 2018 are dismissed.

Mr. Sanjeev Kumar, the learned senior counsel for the appellants has lastly contended that the trial Judge was not justified in imposing the maximum punishment of RI for two years under section 506/149 of the Indian Penal Code.

The following discussions have been made by the trial Judge on the point of sentence: “28. Learned counsel of convicts has submitted that having regard to the fact that one of the accused person namely Amit Mahato is hon'ble member of Jharkhand Legislative assembly whereas others are youth having prospect of life, they are required to be dealt leniently. Therefore, it is submitted that convicts may be released after due admonition in terms of Section 3 of Probation of Offenders Act. 29. Learned APP vehemently opposed the prayer and submits that considering the gravity of the offence and further taking into account the growing trend of misbehaviour with public servant at the hands of unscrupulous offenders, the convicts do not deserve any leniency. Further, learned Prosecutor by filing certified copy of Judgment passed by appellate court submits that accused Amit Mahto had earlier been convicted hence only substantive punishment would meet the ends of Justice. Therefore, relying upon the submissions made herein above it is submitted that in the interest of justice the convicts may be sentenced substantively. 30. Regard being had to the submissions advanced by both the parties, as well as taking into account the fact that convicts had behaved in an irresponsible manner with a public servant while on duty, it will not be in the interest of justice to extend the benefit of P.O. Act. Accordingly, the convicts namely Amit Kumar Mahato, Birendara Mahato, Panchanan Singh Munda are hereby sentenced as under- Offence Punishment Nature Imprisonment Fine Default Section 147 IPC 1 Year R.I. Rs. 10000/- 3 Months R.I. Section 323/149 IPC 6 Month R.I. Rs. 10000/- 2 Months R.I. Section 341/149 IPC 1 Month S.I. …......... …........... Section 353/149 IPC 1 ½ Year R.I. Rs. 10000/- 3 Months R.I. Section 427/149 IPC 1 Year R.I. Rs. 5000/- 3 Months R.I. Concurrent Section 506/149 IPC 2 Year R.I. Rs. 10000/- 3 Months R.I.

The Code of Criminal Procedure does not provide a guideline to the Court how to impose punishment for an offence – wide discretion has been given to the Court. However, this would evince no doubt that the discretion vested in the Court has to be exercised following the well-settled principles in law. In “State of Punjab v. Manjit Singh and Ors.” AIR 2009 20 Acquittal Appeal No.71 of 2018 & analogous cases SC 2888 the Hon'ble Supreme Court has observed that though no general guidelines are laid down in the Code for the purpose of awarding punishment and generally the judicial discretion is guided by the principle that the punishment should be commensurate with the gravity of the offence having regard to the aggravating and mitigating circumstances in each case. Therefore, the imposition of maximum punishment in a routine manner cannot be countenanced in law. While deciding the quantum of punishment a Court of law is required to assess the mitigating and aggravating circumstances in the case; the Court has also to keep in mind the age, profession and conduct of the accused.

As is evident from paragraph No.29 of the judgment under challenge, the trial Judge seems to be influenced by a statement made by the learned Public Prosecutor that Amit Kumar Mahto has previously suffered punishment for committing an offence. In our opinion, this alone cannot be a ground to inflict maximum punishment upon the accused under section 506 of the Indian Penal Code. Furthermore, there is apparently no discussion about Panchanan Singh Munda and Birendra Mahto why maximum punishment must be imposed upon them for the said offence. We further find that there is no discussion at all for imposing maximum punishment under section 506/149 of the Indian Penal Code upon Manjit Kumar Sahu, Shishir Kumar Mahto, Kameshwar Mahto @ Kameshawara Mahato, Nand Kishor Mahto and Krishna Munda @ Krisna Singh.

With this in our mind that now about seventeen years have passed since the occurrence had happened, and having regard to the aforementioned facts and circumstances in the case, we deem it proper to interfere with the order of punishment of RI for two years imposed upon the accused persons under sections 506/149 of the Indian Penal Code and, accordingly, this part of the judgment passed in Sessions Trial No. 481 of 2010 and Sessions Trial No. 481 of 2010 (B) is set-aside.

For the similar reasons, the above-named accused persons are sentenced to RI for one year for committing the offence under section 506/149 of the Indian Penal Code.

We order accordingly. Cr. Appeal (DB) No. 692 of 2023, Cr. Appeal (DB) No. 693 of 21 Acquittal Appeal No.71 of 2018 & analogous cases 2023 and Cr. Appeal (DB) No. 694 of 2023 are dismissed, except to the aforesaid extent as indicated hereinabove.

Bail bonds furnished by the appellants, namely, Amit Kumar Mahto in Cr. Appeal (DB) No. 692 of 2023; Manjit Kumar Sahu, Shishir Kumar Mahto, Kameshwar Mahto, Nand Kishor Mahto and Krishna Munda in Cr. Appeal (DB) No. 693 of 2023, and; Panchanan Singh Munda and Birendra Mahto in Cr. Appeal (DB) No. 694 of 2023 stand cancelled. They shall surrender before the Court below concerned to serve the remaining sentence awarded to them.

Let the lower Court records be sent to the Court concerned forthwith.

Let a copy of the judgment be transmitted to the Court concerned through 'FAX'. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 2nd May, 2023 S.B./Sudhir/Nibha-A.F.R