1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 1184 of 2007 1. Bhola Mahato , S/o late Remeshwer Mahto 2. Suro Devi, W/o BholaMahto Both are residents of Village- Golden Pahari Tisra, P.S.- Jharia, District- Dhanbad ( Jharkhand) … Appellants Versus The State of Jharkhand …… Respondent ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Appellants : Ms. Saman Ahmad, Amicus Curiae, For the State : Mr. Bishambhar Shastri, A.P.P. ….. Oral Judgment In Court Order No. 05/ Dated: 27.08.2025 This Criminal Appeal has been filed on behalf of the appellants by challenging the judgment of conviction and sentence dated 01.09.2007 passed by Sri Indra Deo Mishra, then Additional District Sessions Judge-VI, Dhanbad in S.T. No. 274 of 2005 arising Jharia P.S. Case No. 453 of 2004, by which both the appellants have been convicted for an offences under sections 323, 325, 341,506 and 452 of the I.P.C. and sentenced to undergo R.I. for six months each for offence under sections 323 IPC and sentenced to undergo R.I. for one year each for the offence under section 325 of the I.P.C, and further sentenced to undergo S.I. for one month each for offence under section 341 of IPC , sentenced to undergo R.I. one (01) year each under section 506 of IPC and one year R.I. each under section 452. 2 However, all the sentences have been directed to run–concurrently. 2. The prosecution case, in brief as per the written report of Mateshwari Devi is that on 28.11.2004 at about 5.30 P.M. someone had thrown a ball in front of the house of Bhola Mahato and the said Bhola Mahato then threw the ball into the house of the Informant Mateshwari Devi for which she objected. When the Informant objected, the accused persons started abusing the Informant and Ram Kumar Mahto with filthy language. When the Informant objected as to why they were abusing, then the accused persons forcibly entered into the house of the Informant having armed with Lathi and surrounded the Informant and caught hold of the informant and snatched all her clothes and then accused Suro Devi and Repush Mahto assaulted the Informant with fists and slaps. Accused Bhola Mahato i.e. appellant No. 1 with intention to murder, mercilessly assaulted the Informant on her head, shoulder, back, hand and all over her body and they were shouting that today she will be killed. The other accused persons had assaulted Ram Kumar Mahto with fists and slaps. Accused Suro Devi also snatched the silver locket of the Informant. The Informant became senseless, then the accused persons fled away. The Informant went to Alakdiha Police Station to lodge a case and her L.T.I. was taken in 3-4 blank papers and accused Bhola Mahato was also apprehended by the police but later on released and no case was lodged. The informant went to Tisra Hospital of B.C.C.L. where she was treated. The right 3 hand of the informant was fractured. Her shoulder was dislocated and there are injuries over her head and all over her body. It is alleged that, on 29.11.2004 when the appellant No. 1 Bhola Mahato was, let off by the police, again the accused persons came to the house of the Informant and abused and threatened her . 3. Heard learned Amicus Curiae for the appellants and learned counsel for the State. 4. Learned Amicus Curiae for the appellants has submitted that the impugned judgment and sentence passed by the learned Court below is illegal , arbitrary and not sustainable in eye of law. It is submitted that allegations for assaulting the Informant are false and concocted. It is submitted that there is delay in filing the Complaint Case for the occurrence as the occurrence took place on 28.11.2004 whereas the Complaint case was filed later on. It is submitted that there is contradiction in the evidence of prosecution witness. It is submitted that several prosecution witnesses have been declared hostile. It is submitted that the appellants have been implicated merely on the basis of allegation made by the Complainant Informant due to village politics. It is submitted that right hand of the Informant was fractured and which is not a vital part of body and hence the appellants may be acquitted. 5. On the other hand, learned A.P.P. has submitted that the impugned judgment of conviction and sentence passed by the learned Court below is fit and proper and no 4 interference is required. It is submitted that the several prosecution witnessed P.W. 1, P.W. 2, P.W. 3 and P.W. 4 namely Awadh Narain Singh, Sona Sao, Lakhi Ram Bouri and Manju Devi respectively have supported the prosecution case and stated that the both the appellant had assaulted the Informant due to which the Informant’s hand was fractured. It is submitted that the P.W. 8 is a Doctor and found grievous injury on the person of the injured person. It is submitted that P.W. 6 and P.W. 7 are injured. It is submitted that the P.W. 9 is I.O. of this Case and has supported and corroborated the case and thus, there is no illegality . It is further submitted that the learned Trial Court has taken lenient view in the favour of the appellants by sentencing them for the period of one year . It is submitted that there is no merit and hence the Criminal Appeal may be dismissed. 6. Perused the Lower Court Records of this case and considered the submission of both the sides. 7. It appear that the Informant had filed Complaint Case No. 1894 of 2004 before the learned Chief Judicial Magistrate, Dhanbad on 13.12.2004 for the occurrence taking place on 28.11.2004 i.e. after delay of around 15 days, but it was sent for investigation under section 156(3) of Cr.P.C. for investigation and then FIR was lodged. 8. The Police, after conducting investigation had submitted charge-sheet on 28.02.2005 under sections 341,323,342,325,307,452,506/34 of the I.P.C against the appellants and others. The learned Chief Judicial Magistrate 5 had taken cognizance against the appellants and Others under section 341/323/ 342/325/307/452/506/34 on 28.02.2005. 9. After supplying the police paper, the charges were framed against the appellants namely Bhola Mahato and Suro Devi for the offences under sections 452, 325, 506, 307/34, 341 of the I.P.C. by Sri Prakash Chandra Choudhary, then learned Additional Sessions Judge-IX, Dhanbad on 05.08.2005 and to which the appellants pleaded not guilty and claimed to be tried. 10. During trial the prosecution got examined nine (9) witnesses who are as follows:- (i) P.W. 1 is Awadh Narayan Singh, (ii) P.W. 2 is Sona Sao, (iii) P.W. 3 is Lakhi Ram Bouri, (iv) P.W. 4 is Manju Devi, (v) P.W. 5 is Sanjay Sao, (vi) P.W. 6 is Ram Kumar Mahato, (vii) P.W. 7 is Mateshwari Devi (i.e. the Informant), (viii) P.W. 8 is Dr. S.P. Pandey and (x) P.W. 9 is Prem Chand Arya i.e. the I.O. 11. The prosecution in support its case got marked the following document as Exhibit as follows:- (i) Exhibit -1 is injury report of Smt. Mateshwari Devi i.e. the Informant, (ii) Exhibit-2 is signature of N.P. Singh , officer-in- charge of Jharia P.S. on formal FIR, (iii) Exhibit-3 is signature of N.P. Singh, officer-in- charge of Jharia P.S. on the endorsement of the complain petition. 6 (iv) Exhibit -4 is signature of Sri Kedar Ram , Officer-in- charge of Alakdiha O.P. On the endorsement. 12. Thereafter the appellants were examined under section 313 Cr.P.C. on 23.06.2007 by the learned Court below and to which they denied the circumstances put forth before them. 13. Neither the any defence witness has examined nor any document marked as Exhibit on behalf of the appellants. 14. Thereafter, learned Court below, had convicted the appellants to undergone punishment on different counts as mentioned above and hence the present appeal has been filed . 15. It transpires that the Complaint Case was filed. On 28.11.2004 while the children were playing ball and some one had thrown the ball in front house of the appellant No. 1 Bhola Mahato and who threw the ball in the house of the Informant which was objected by the complainant-Informant . Then the appellant and his son Rupesh Mahato (later on declared juvenile) started abusing her in filthy languages and they also assaulted the complainant with fist and slaps . It is also alleged that the appellant No. 1 assaulted the Informant on her head, shoulder, back, hand and all over the body with intention to kill her, whereas the appellant No. 2 snatched the silver locket of the Informant . Thereafter the complainant went to the police station and lodged the F.I.R. and the police 7 had apprehended the appellant No. 1 but later on released and no case was lodged. 16. In the meantime, the complainant went to Tisra Hospital where she was treated and the right hand of the Informant was fractured and her shoulder was dislocated and injuries over her head and all over her body were found. 17. P.W. 8 is Doctor S.P. Pandey who had examined the injured namely Mateshwari Devi and found the following injuries:- (i) Abrasion over lateral angle of left side, (ii) Lacerated cut injury over left eye brow, (iii) Echymosis over lower eye lid left, (iv) Abrasion and echymosis over left scopular region, (v) Echymosis over left thigh, (vi) Swelling left wrist and hand, (vii) X-ray right wrist and hand shows fracture lower forth right radious, Weapon used – Hard and blunt substance. Age of injury cannot be said. Nature- Injury No. (i) to (v) are simple injury and Injury No. (vi) and (vii) grievous in nature. The said patient was under treatment from 29.11.2004 to 02.12.2004. The patient was referred from different hospital. This injury report in his pen and signature marked Ext. 1. 18. During cross-examination he stated that he can not say that patient was referred from Tisara Hospital, he 8 had not informed the police on 29.11.2004. He stated that the injury Nos. (i) to (v) are simple in nature and superficial. Injury No. (vi) is fracture and injury No. (vii) confirm the injury No. (vi). He has not found any injury on vital part of the body. The above injuries are not fatal and dangerous to life . However he has not mentioned the time of examination of the injured. On 21st December 2024 Police Officer had visited in Hospital. 19. Thus, from scrutinizing the evidence of P.W. 8 it is evident that injury Nos. ( i) to ( v) were found simple in nature whereas the injury Nos.(vi) and (vii) was found grievous in nature, hence this is the case of one grievous injury , but not on her vital part of the body. 20. So far as other prosecution witnesses of evidence is concerned , P.W. 1 Awadh Narain Singh who is night guard in B.C.C.L and supported the prosecution case. He stated that while he was sitting at his door then both the appellants had assaulted the Informant Mateshwari Devi . During his cross-examination he stated that he arrived at the house of the Informant and he supported the prosecution case. He claimed to be the eye witness of the occurrence. He also claimed to have arrived at the place of occurrence at the time of occurrence . Although P.W. 1 had not tried to save the appellant for assaulting the Informant but his evidence is not like an eye witness as he arrived at the place of occurrence on raising alarm. 9 21. P.W. 2 Sona Sao, who claimed to be an eye witness and stated that she had seen the appellants assaulting the Informant and the appellant No. 1 having Danta and appellant No. 2 having Bat and he forbade them for assaulting the Informant. He also separated the Informant and the appellants . During cross-examination he also supported the prosecution case that quarrel was taking place . Thus, P.W. 2 had supported the prosecution case. 22. P.W. 3 Lakhi Ram Bauri also stated that he arrived at the place of occurrence on hearing alarm and had seen that the appellants were assaulting the Informant by danda and bat. He also separatted both the sides. During cross-examination he stated that he knew the appellant No. 1 also . 23. P.W. 4 Manju Devi who also supported the prosecution case against the appellants for assaulting the Informant. P.W. 4 is the daughter of the Informant and she is the natural witness. During cross-examination she stated that her mother was working in BCCL and she was appointed in place of her father and she also claimed to be an eye witness of the case. 24. P.W. 5 Sanjay Sao also stated to have seen the occurrence and the appellants were assaulting the Informant and the appellant No.1 assaulting the Informant by Danda, whereas the appellant No. 2 assaulting the Informant by bat . 10 During cross-examination, he also stated that 10- 12 persons also arrived there . Thus, P.W. 5 has also supported the prosecution case. 25. P.W. 6 Ram Kumar Mahto, who is son-in-law of the Informant and also supported the prosecution case that the appellant No. 1 and appellant No. 2 had assaulted the Informant by Danda and Bat, due to which she sustained injury. During cross-examination he stated that he also lives in the quarter of the Informant from around 4-5 years and her mother –in-law is working in B.C.C.L. 26. P.W. 7 Mateshwari Devi i.e the Informant and she also supported the prosecution case and stated that both the appellants had assaulted her by Danda and Bat due to which she sustained injures on head and hand and she also sustained injures in her thigh. Then, she went to the police station and thereafter went to Jeolgora Hospital. During cross-examination she stated that prior to the occurrence; there was dispute with regard to construction of boundary. She also stated that she was admitted to hospital for around one and half month . She denied the suggestion that the appellant No. 1 Bhola Mahato had disputes. Thus the Informant also supported her case. 27. P.W. 9 Prem Chand Arya also supported and corroborated the prosecution case . 11 28. Although the learned Trial Court has convicted the appellants for the offence under section 325 of the IPC but this Court finds that X-ray report is not available and as such conviction under section 325 IPC is not proved and hence conviction under section 325 of IPC is altered and converted to under section 324 of IPC. 29. This Court finds that the conviction of the appellants under section 323, 452, 506 of the IPC is proper, however conviction under section 325 is altered and converted to section 324 of the IPC. 30. It appears that the Informant had sustained grievous injury on her person on wrist and hand and remained hospitalized from 29.11.2004 to 02.12.2004 . 31. This is a case of long protracted trial for more than 20 years and hence the appellants can be given the benefit of under section 4 of Probation of Offender Act which reads as follows:- ―Section 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 exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: 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 12 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. (2) Before making any order under sub- section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. 1. The words ―except the State of Jammu and Kashmir‖ omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10-2019). 2 (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned. 32. Hence the sentence of the appellant No. 1 and the appellant No. 2 namely Bhola Mahato and Suro Devi respectively is modified to the extent , instead of going to imprisonment, the appellants are directed to be released giving the benefit of section-4 of the Probation of Offenders Act and as such the petitioner is directed to be released on execution probation bail bonds of Rs. 5,000/- each for the period of one year before the learned Court 13 below and also directed to maintain peace and good behavior. 33. Thus this Criminal Appeal is allowed in part . 34. However, fee of Rs. 5500/- shall be paid by the learned Member Secretary, JHALSA to Ms. Samam Ahmad, learned Amicus Curiae appearing for the appellants in Criminal Appeal (S.J.) No. 1184 of 2007 . 35. Let a copy of this order along with original Lower Court Record to be sent to the learned Court below. (Sanjay Prasad, J.) Bibha/