) --------- 1.Tapan Mandal 2.Kanahai Mandal @ Subaran Mondal 3.Subal Mandal 4.Amiya Mandal ..… v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 120 of 2005 (Against the judgment of conviction and order of sentence dated 10.01.2005 passed by the learned 3rd Additional Sessions Judge, (FTC), Jamtara, in Sessions Case No. 43 of 2004/39 of 2004.) --------- 1.Tapan Mandal 2.Kanahai Mandal @ Subaran Mondal 3.Subal Mandal 4.Amiya Mandal ..… Versus The State of Jharkhand ...... --------- Appellants Respondent CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN --------- For the Appellants : Mr. Atanu Banerjee, Adv. For the State : Mr. Jitendra Pandey, APP --------- 07/Dated: 29th August, 2023
Legal Reasoning
Heard learned counsel for the parties. 2. Learned counsel for the appellant submits that pursuant to the order of this court a report has been received which transpires that the appellant no.1- Tapan Mandal has died. 3. In view of the aforesaid fact, this appeal stand dismissed as abated against the appellant no.1- Tapan Mandal. 4. This appeal is directed against the judgment of conviction and order of sentence dated 10.01.2005 passed by the learned 3rd Additional Sessions Judge, (FTC), Jamtara, in Sessions Case No. 43 of 2004/39 of 2004; whereby the appellants were convicted under sections 307/34 and 448/34 IPC and sentenced to undergo R.I. for 7 years as well as fine of Rs. 1000/- each for offence under section 307/ 34 IPC. In default of payment of fine, further sentenced to undergo S.I. for 3 months each. No separate sentence was awarded for offence under section 448 IPC. 5. The prosecution case in short is that the informant along with his father and mother were carrying rice in the bag. At that time Tapan Mandal and Kanahai Mandal came there armed with Tangi and Iron Rod and started abusing. It 2 is further alleged that when they obstructed them in abusing then Kanahai Mandal inflicted tangi blow upon the head of his father Tarani Mandal. It is further alleged that Tapan Mandal inflicted iron rod blow upon his chest. Subal Mandal inflicted tangi blow upon the head of his mother, Madhumati Mandal over her head and Amiya Mandal inflicted knife blow. It is further stated that accused persons were raising slogans that whoever shall came they will be killed. Gautam Mandal and Ratan Mandal came after hearing and took the injured for treatment at Nala Hospital. 6. Learned counsel for the appellants submits that not even a single independent witness has been examined on behalf of prosecution and all the witnesses who supported the case of the prosecution are highly interested witnesses. The investigating officer of this case has not been examined by the prosecution which caused serious prejudice to the defence as the I.O. could not be confronted with the statement of witnesses made under section 161 Cr. P.C. Further, P.W.5 who is the informant of the case has deposed an entirely different version from his earlier statement. As per his statement in the FIR Amiya Mandal has inflicted knife blow upon his face whereas in deposition, he deposed that Amiya Mandal has inflicted Tangi blow upon his head and chest. Showing this discrepancy learned counsel tried to impress this court that the manner of occurrence has not been proved substantially by the prosecution and as such, benefit of doubt could be given to the appellant. He further submits that as per the prosecution case firstly Tapan Mandal along with Kanahiya Mandal came at the place of occurrence and started abusing and inflicted injury with tangi and iron rod. When the informant and his father obstructed them in abusing then Kanahaiya Mandal inflicted tangi blow upon the head of his father. Since Tapan Mandal has died and the prosecution is not sure who inflicted the 3 injuries on whom with certainty; as such benefit of doubt could be given to the appellant. He lastly submits that the prosecution has failed to prove the basic ingredient of section 307 IPC, inasmuch as, intention and /or knowledge to cause death of the injured person is not proved. Thus, at least the surviving appellants may be convicted for lesser punishment.
Legal Reasoning
Learned counsel further made an alternative argument by submitting that though the presence of the accused persons is not doubted, but at the time since the nature of injury as per the document was simple, as such this Court may kindly convert the sentence from 307 to a lesser punishment; and the sentence which will be imposed by this Court may further be modified for the period already undergone as all the surviving appellant has remained in custody about 3 months. 7. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellants. However, he fairly submits that as per record, there is no any criminal antecedent of the appellants. 8. Having heard learned counsel for the parties and after going through the documents available on LCR, it appears that the informant along with his father and mother were carrying rice in the bag. At that time, Tapan Mandal and Kanahai Mandal came there armed with Tangi and Iron Rod and started abusing. It appears that when they obstructed them in abusing then Kanahai Mandal inflicted tangi blow upon the head of his father Tarani Mandal. It further appears that Tapan Mandal inflicted iron rod blow upon his chest. Subal Mandal inflicted tangi blow upon the head of his mother-Madhumati Mandal and Amiya Mandal inflicted knife blow of him resulting injuries to all. 4 It further appears that the accused persons were raising slogans that whoever shall came they will be killed. Subsequently, Gautam Mandal and Ratan Mandal came and took them for treatment at Nala Hospital. 9. By going through the aforesaid factual scenario and the admitted position that the investigating officer of this case has not been examined by the prosecution which caused serious prejudice to the defence as the I.O. could not be confronted and further this court is having no hesitation in observing that the prosecution has not been able to prove the basic ingredients of section 307 IPC as none of the P.Ws have substantiated by their deposition that the appellants were having full knowledge and came with an intention to kill the injured persons. It further transpires from the deposition of the doctor that the injuries were simple in nature. It also appears that the doctor is also not clear about the repeated blow by tangi and/or iron rod. Thus, admittedly the manner of occurrence has not been fully corroborated by P.W.7. None the less, the presence of the appellants is admitted and it is also admitted that they have inflicted injury upon the victims. But at the same time as stated herein above the intention and knowledge to kill the injured has not been proved. As a matter of fact, no statement to that effect has been said by the P.Ws that for what reason the appellants want to cause death of the informant side. 10. In view of the aforesaid discussion this court is of the opinion that interest of justice would be sufficed by converting the sentence from 307/34 IPC to 324/34 IPC. Accordingly, the appellants are acquitted from the charge under section 307 IPC, however, looking to the entire facts and circumstances of the case the appellants are convicted for the offence under section 324/34 IPC and accordingly sentenced to undergo R.I. for 2 years each. 5 So far as conviction of the appellants under section 448/34 IPC is concerned; the same, is, hereby sustained. 11. Now coming to the alternative argument of learned counsel for the appellants with regard to sentence awarded to them; this Court is of the view that at this stage remitting the appellants to the rigors of imprisonment at this juncture of their life would not serve the ends of justice. Further the surviving appellants remained in custody for about 3 months. 12. Thus, on point of sentence, looking to the entire facts and circumstances of the case and also the fact that the alleged incident took place in the year 1999 and about 24 years have passed and that period is sufficient to exhaust anybody mentally, physically and economically and now the appellants are not involved in any criminal activities; thus, they have a chance to reform. 13. Taking into consideration of mitigating circumstances, I am of the considered view that for the offence under 324/448/34 IPC, the sentence ought to be modified to the extent that the surviving appellants shall be released for the period already undergone, but subject to payment of fine of Rs.10,000/- each. 14. As a result, the sentence as ordered by the learned trial court and imposed by this Court for the offence under section 324 IPC, is hereby, modified to the extent that the surviving appellants are sentenced for the period already undergone subject to payment of fine of Rs. Rs.10,000/-each. 15. It is made clear that the surviving appellants shall pay the aforesaid fine of Rs.10,000/- each, within a period of 4 months from the date of receipt of copy of this order, before the D.L.S.A., Jamtara; failing which they shall serve rest of the sentence as ordered by the learned trial court. 16. With the aforesaid observations, directions and
Decision
modification in sentence only, the instant criminal appeal stands disposed of. 6 17. The surviving appellants shall be discharged from the liability of their bail bonds, subject to fulfillment of aforesaid condition. 18. Let a copy of this order be communicated to the trial court, Secretary, D.L.S.A., Jamtara and also to the surviving appellants through officer in charge of the concerned police station. The lower court record be sent to the court concerned 19. forthwith. Amardeep/ (Deepak Roshan, J.)