…. 1. Lakhikant Mandal, Son of Judhistir Mandal, 2.Nishapati Mandal, Son of Judhistir Mandal v. 1.The State of Jharkhand 2.Ravidal Ghosh
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No.1520 of 2005 …. 1. Lakhikant Mandal, Son of Judhistir Mandal, 2.Nishapati Mandal, Son of Judhistir Mandal All resident of Village- Mahula, P.S. Kundahit, District- Jamtara. ……Appellants Versus 1.The State of Jharkhand 2.Ravidal Ghosh, (Deceased) S/o Late Sripati Ghosh, Resident of Village- Mahula, P.O. and P.S.- Kundahit, Dist- Jamtara ……Respondents ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Appellant For the State : Mr. Kaushal Kishore Mishra, Advocate : Mr. Anup Pawan Toppo, APP …… ORAL ORDER IN COURT Order No.12/04.12.2024 This Criminal Appeal has been filed on behalf of the appellants challenging the judgment of conviction and sentence dated 30.11.2005 passed by Sri Arun Kumar, learned 1st Additional Sessions Judge, Jamtara in Sessions Case No.209 of 1999 and Sessions Trial No. 07 of 2001 by which the appellant No.1 Lakhikant Mandal has been convicted for the offence under Section 341 and 324 of I.P.C and sentenced to undergo R.I. for two (02) years for the offence under Section 324 of I.P.C and R.I. for one (01) month under Section 341 of IPC whereas the appellant no.2 Nishapati Mandal has been convicted for the offence under Section 341,323 of IPC and sentenced to undergo RI for one (01) month for the offence under Section 341 of I.P.C and RI for one (01) year for the offence under Section 323 of I.P.C. 2. The prosecution case, in brief, is that on 01.04.1998 at 05:30 P.M. while the accused person were cutting the piece of palm tree then the informant objected and thereafter all the accused persons abused him and the accused Lakhi Kant Mandal assaulted him with tangi on his head causing bleeding and cut injury on the head and subsequently accused Yudhistir Mandal (deceased) assaulted him with lathi and Nisapati Mandal assaulted him with piece of wood causing injuries on the mouth and on the back of the informant. It has also been alleged in the fard beyan that the palm tree was standing in the field of the informant which had fallen down in the storm and with regard to the land over which the tree was standing, the informant had got decree from the Court also and in spite of that the accused persons were trying to remove the palm tree. 3.
Legal Reasoning
Heard Mr. Kaushal Kishore Mishra, learned counsel for the appellants and Mr. Anup Pawan Toppo, learned A.P.P for the State. 4. Learned counsel for the appellant submitted that the informant and the appellants were neighbours. It has been submitted that the appellants have shown the desire for compromise but service report of notice reveals that informant has died. It is submitted that the appellants is not arguing the case on merit. It has been submitted that the occurrence is of the year 1998 and more than 25 years have passed. Hence, lenient view has been taken in favour of the surviving appellants. 5. 6. On the other hand, learned A.P.P has raised no objection. Perused the Lower Court Records and considered the submissions made on behalf of learned counsel for both the sides. 7. It transpires that the informant has alleged in the FIR against both the appellants, and one appellant no.1 Judhistir Mandal (deceased) on 02.04.1998 for the offences under Section 2 341/323/326/34 of I.P.C for the occurrence. 8. It transpires that the police had submitted chargesheet, after investigation, against the appellants and one deceased Judhistir Mandal for the offences under Section 341/323/324/504/307/34 of I.P.C before the learned A.C.J.M, Jamtara and learned A.C.J.M. has taken cognizance under Section 341/323/324/504/307/34 on 24.06.1998. 9. After supplying the police papers to the accused persons, the case was committed to the Court of Sessions. 10. Thereafter, the charges had been framed against the appellants and deceased Judhistir Mandal for the offence under Section 323/324/504/307/34 of IPC on 26.07.2000 by the learned 1st Additional Sessions Judge, Jamtara and to which they pleaded not guilty and claimed to be trial. 11. During trial, the prosecution got examined five (05) witnesses in support of its case, who are as follows:- (i) PW-1 is Ravilal Ghosh, (ii) PW-2 is Sukdeb Mistry, (iii) PW-3 is Balram Mondal, (iv) PW-4 is Nandlal Ghosh and (v) PW-5 is Dr. Yogendra Narain. 12. The prosecution case in support of its case had marked the following Exhibits which are as follows:- (i) Exhibit-1 is signature of Ravilal Ghosh and (ii) Exhibit-2 is Injury Report. 13. Thereafter, the learned Court below examined the appellants under Section 313 Cr.P.C on 12.09.2005 and to which the appellants had denied the circumstances put forth before them. 14. Neither any defence witness was examined nor any 3 document was marked as Exhibit. 15. Thereafter, the learned Court below, after considering the case of both the sides, has convicted the appellant as mentioned above and sentenced them on different grounds as mentioned above. 16. It appears that PW-5 is Dr. Yogendra Narain who found the injuries on Informant as follows:- (i) Injury No.1- Incised wound- semi circle wound base 3.5cm, (ii) Injury No.2- Bruise 2cm x 1cm in the middle of the fore head, (iii) Injury No.3- Lacerated wound 1/2cm x 1/4cm in upper lip It appears from injuries of Informant as mentioned in injury report marked as Exhibit-2 the injuries sustained by the informant were found to be simple in nature. 17. It transpires that informant Ravilal Gosh had supported the prosecution case and stated appellants and one Juthisitir Mandal (Deceased) had caught hold of his hand whereas appellant No.1 Lakhikant Mandal assaulted by Tangi and he sustained the injuries on head and the appellant and one Judhistir (deceased) assaulted with lathi due to which he become unconscious, he proved that his signature was on fardbeyan marked as Exhibit-1. 18. During cross examination, he stated that the tree had fallen on its own and he had not seen anyone cutting the tree. However, he was informed by one Sahdev Ghosh that the appellants were cutting the tree, he also admitted that there was altercation between the parties, however, he also admitted that several cases were running between both the sides. He also admitted that appellants had claimed the land of tree as their own. 19. Thus, from scruitising the evidence of PW-1, it is evident that there was a land dispute between the parties, where the tree 4 was standing, and he sustained injuries and injuries were found to be simple in nature. 20. It transpires that the said Sahdev Ghosh who had informed about cutting of tree has not been examined by the prosecution. 21. PW-2 is Sukhdev Mistry, who also stated that the appellants were cutting the tree. However, he was informed by the informant Ravi Ghosal that tall tree had fell down and the appellants were cutting the tree. During cross examination, he admitted that firstly they had gone to the house of Judhistir Mandal (deceased original Appellant No.1) and an altercation took place and at that time no tangi was in the hand of appellant Lakhikant Mandal. Thus PW-2 is formal witness and the evidence shows that they have gone to the house of Judishtir Mandal. 22. PW-3 is Balram Mandal was hostile by the prosecution, as such his evidence is not reliable. 23. PW-4 is Nandlal Ghosh who was tendered by the prosecution, as such his evidence is not reliable. 24. It transpires that I.O. of this case has not been examined and FIR has not been proved. 25. It reveals that injuries sustained by the informant is found were simple in nature. 26. It also reveals from the records that the appellant has remain in custody for certain period. 27. It transpires during the pendency of this Criminal Appeal, the original Appellant No.1 Juthistir Mandal had died on 13.07.2008 on vide order dated 23.10.2024 his name was deleted and the appeal stood abated against him and the instant appeal 5 proceeded only against the present appellants. 28. It transpires that both the appellants and the informants are neighbours. 29. Section 4(1) of the Probation of Offenders Act, which is as follows:- “4. Power of Court to release certain offenders on probation of good conduct:- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not to appear and receive sentence when called upon during such period not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behavior. Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.” 30. It appears that occurrence took place in the year 1998 and more than twenty five (26) years have passed, and the appellants have faced the mental agony of long protracted trial, and hence, they can be given Section 4(1) of the Probation of Offenders Act. 31. Under circumstances, mentioned above in view of the fact and circumstances of this case and also considering the fact that appellants have faced long protracted trial for more than 26 years, This court is inclined to grant benefit of Section 4(1) of the Probation of Offenders Act to the appellants. 32. It appears both the injury no.1 and injury no.2 were found 6 simple in nature. The exhibit-2 reveals that two injuries were sustained by the injured person and even the injury caused in head was also found simple in nature. 33. It transpires that the appellant no.1 namely Lakhi Kant Mandal has been convicted for the offences under Sections 341 and 324 I.P.C. and sentenced for undergo R.I. for six (06) months and R.I. for two (02) years respectively. 34. Considering the rigorous of trial and also long protracted trial and also the facts that the case has been more than 25 years old and also considering the fact that both the sides were neighbours, this Court is taking lenient view in favour of the appellant no.2 namely Lakhikant Mandal as he is said to have caused head injury upon the informant which was found simple in nature. Hence, the conviction of Appellant No.1 Lakhikant Mandal is altered from Section 324 I.P.C. to Section 323 I.P.C. 35. Hence, the Appellant No.1 Lakhikant Mandal is directed to be released on furnishing bond of Rs 5000 for the period of one year under Section 4 of the Probation of Offender’s Act. However, the Appellant No.1 Lakhikant Mandal is directed to appear and receive sentence when called upon during such period and in the meantime he must keep the peace and be of good behavior for the said period. 36. So far as the Appellant No.2 Nishapati Mandal is concerned, he is alleged to have caused injury by lathi. However, it was also found simple in nature. 37. Considering the rigors of trial and also long protracted trial for more than 25 years and also considering the fact that both the sides are neighbours, hence, the Appellant No.2 Nishapati Mandal is directed to be released on furnishing bond of Rs 5000 7 for the period of one year under Section 4 of the Probation of Offender’s Act. However, the Appellant No.2 Nishapati Mandal is directed to appear and receive sentence when called upon during such period and in the meantime he must keep the peace and be of good behavior of the said period. 38. Thus, the conviction of the appellants under Section 323 and 341 I.P.C is affirmed. However, their sentences is modified as indicated above. 39. Thus, this Criminal Appeal No.1520 of 2005 is allowed in part. 40. Let the Original Lower Court Records be sent to the learned Court below at once by the Office. Nishant/- (Sanjay Prasad, J.) 8