( 2025:JHHC:31324 ) 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J) No. 928 of 2005 ------ 1. Bisham Mahto @ Bhisam Mahto 2. Manindra Nath Mahto (Both sons of Kanchan Mahto) 3. Kanchan Mahto son of Late Sona Ram Mahto 4. Yudhisthir Mahto S/o Dundha Mahto All resident of Babudih, P.S: Pindrajora, District: Bokaro ……Appellants Versus The State of Jharkhand ....…Respondent ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Appellants : Mr. Rama Kant Tiwary, Advocate For the Stat : Mr. V. S Sahay, A.P.P ------ ORAL JUDGMENT IN COURT Order No: 09/ Dated: 08.01.2025 This Criminal Appeal has been filed on behalf of the appellants challenging the judgment of conviction and sentence dated 07.07.2005 passed by Shri Alok Kumar Dubey, then learned Additional District and Sessions Judge-cum-Fast Track Court No. 2, Bokaro in Sessions Trial No. 177 of 1993 (G.R. Case no. 984(B)/90 arising out of Pindrajora P.S Case No. 71/90) by which all the appellants have been convicted for the offence under Section 324/34 of the I.P.C and sentenced to undergo R.I for two (2) years and to pay the fine of Rs. 1000/- (One Thousand) each. 2. The prosecution case, in brief, is that on 23.10.1990 at about 5 PM, the informant namely Arjun Mahto (i.e. PW-3) gave ( 2025:JHHC:31324 ) 2 his fardbeyan before the Police alleging that this Co-sharer Kanchan Mahto (i.e. Appellant no.3), Bhisham Mahto (i.e. Appellant no. 1), Manindra Mahto (i.e. Appellant no. 2) and Sudhir Mahto were getting his share of land ploughed. The informant Arjun Mahto and his sons Pando Mahto (i.e. PW-2), Reshmi Devi (i.e. PW-4) and Bhushan Mahto (i.e. PW-1) went there to stop the appellants then Kanchan Mahto (i.e. Appellant no. 3) and Bhushan Mahto assaulted him and his wife with tangi on his head. It is further alleged that the informant was further assaulted on his head and mouth. Manindra Mahto (i.e. Appellant no. 2), Sudhir Mahto, Yudhisthir Mahto (i.e. Appellant no. 4) have also assaulted his son and nephew with danda resulting injury on the head of his son as well as on his leg and other parts of the body of nephew. Thereafter, the accused appellants fled away and by taking the help of villagers the injured persons went to the Police Station upon which Pindrajora P.S. Case no. 71/90 was registered. 3. Heard Mr. Rama Kanti Tiwary, learned counsel appearing on behalf of the appellants and Mr. V. S Sahay, learned A.P.P for the State 4. Learned counsel for the appellants has submitted that the impugned judgment of conviction and sentence dated 07.07.2005 passed by the learned Court below is illegal, arbitrary and not sustainable in the eye of law. It is submitted that there is a counter case between both the sides. It is submitted that Appellant no. 3 Kanchan Mahto had instituted Pindrajora P.S. Case No. 70/90 against the informant and his family members and the informant had instituted Pindrajora P.S. Case No. 71/90 against the appellants as a counter blast. It is submitted that the land ( 2025:JHHC:31324 ) 3 belongs to the Appellant no. 3 Kanchan Mahto which was purchased by him on 10.07.1980. It is submitted that informant and his family members were aggressors. It is submitted that the informant and his family members have also been convicted in Pindrajora P.S. Case no. 70/90 instituted by Appellant no. 3 Kanchan Mahto for the offence under Section 307 of the I.P.C. However, during course of argument, learned counsel for the informant could not produce the copy of F.I.R as well as deposition witnesses on the judgment passed by the Trial Court below. It is submitted that the appellants had remained in custody for certain period. It is further submitted that I.O and Doctor of this case had not been examined by the prosecution and injury sustained by the informant has also not been proved by the prosecution. It is submitted that the informant side and the appellants side are Gotia and there is land dispute between both the sides and title belongs to the appellant. However, it is submitted that the evidence of PW- 1 to PW-4 namely Bhuwan Mahto, Pandu Mahto, Arjun Mahto, Reshmi Devi respectively are not reliable and as such, the impugned judgment and sentence may be set aside and this Criminal Appeal may be allowed. 5. Alternatively, leaned counsel for the appellants has submitted that the occurrence had taken place 34 years ago and the appellants have suffered long protracted trial and hence, lenient view may be taken in their favour. 6. On the other hand, learned A.P.P for the State has submitted that the impugned judgment of conviction and order of sentence dated 07.07.2005 is fit and proper and no interference is required. It is submitted that the appellants had assaulted the ( 2025:JHHC:31324 ) 4 informant and his family members. It is submitted that the informant Arjun Mahto (i.e. PW-3) has fully supported the case. It is further submitted that the evidence of PW-3 Arjun Mahto is corroborated from the evidence of PW-1, PW-2 and PW-4 namely Bhuwan Mahto, Pandu Mahto and Reshmi Devi. It is submitted that the non-examination of I.O and Doctor is not fatal to the prosecution case and admittedly both the sides have sustained injuries. It is further submitted that Court had taken lenient view in favour of the appellants by convicting them for a period of two (2) years and hence, the judgment may be upheld and this Criminal Appeal may be dismissed. 7. Perused the Lower Court Records and considered the submissions of both the sides. 8. It transpires that the informant Arjun Mahto had lodged F.I.R against the appellants namely Bisham Mahto @ Bhisam Mahto, Manindra Mahto, Kanchan Mahto and Yudhistir Mahto on 23.10.1990 under Sections 324/325/354/34 of the I.P.C. 9. The police, after completing investigation, had submitted charge sheet against the appellants and one Sudhir Mahto under Sections 147/148/149/323/326/354/307 of the I.P.C on 28.01.1991. Thereafter, Shri Surendra Prasad Thakur, the learned A.C.J.M took cognizance against the appellants under Sections 147/148/149/323/326/354/307 of the I.P.C on 28.01.1991. 10. After supplying the police papers to the accused persons the case was committed to the Court of Sessions. 11. Thereafter, the charges were framed against the appellants on 13.10.1993 by Sri Surendra Prasad Thakur, Assistant Sessions Judge under Sections 147/148/149/323/327/354 of the I.P.C. ( 2025:JHHC:31324 ) 5 However, separate charges were framed against the accused appellant no. 3 Kanchan Mahto and one Bhisham Mahto under Section 307 of I.P.C to which they pleaded not guilty and claimed to be tried. 12. During trial the prosecution got examined four (4) witnesses, who are as follows:- (i) PW-1 is Bhushan Mahto, (ii) PW-2 is Pandu Mahto, (iii) PW-3 is Arjun Mahto (i.e. the informant), (iv) PW-4 is Reshmi Mahto (i.e. the wife of the informant). 13. The prosecution in support of its case got marked the following documents as Exhibits which are as follows:- (i) Exhibit-1 is signature of informant on the written application. 14. Thereafter the appellants were examined under section 313 Cr.P.C on 08.02.2005 by the learned Court below and to which the appellant denied the circumstances put forth before him. 15. It reveals that there are correction in the form of charge of the appellants and Sonaram Mahto was corrected as Kanchan Mahto vide order dated 27.05.2005 and even Sudhir Mahto was corrected as Yudhisthir Mahto vide order dated 27.05.2005. 16. The appellants surrendered and filed bail application before A.C.J.M on 06.11.1990 and all of them were allowed to be released on bail. It further reveals that the bail of Kanchan Mahto (i.e. Appellant no. 2) and Bhisham Mahto (Appellant no. 1) was cancelled by the Trial Court on account of their absence and they were taken in custody and produced from jail on 11.02.2004. Kanchan Mahto was released from custody after 07.07.2004 and ( 2025:JHHC:31324 ) 6 Bhisham Mahato remained in custody till 15.02.2004. 17. The Defence in support of its case got examined one (1) witness, who is as follows:- (i) DW-1 is Sona Ram Kumbhkar. 18. The Defence in support of its case got marked the following documents as Exhibits which are as follows:- (i) Exhibit-A is the original registered deed dated 18.07.1980. (ii) Exhibit-B is the Rent Receipt in the name of Kanchan Mahto i.e. Appellant no.3. 19. Thereafter hearing both the sides, the learned Court below has convicted the appellants for the offence under section 324/34 of the I.P.C and sentenced him to undergo rigorous imprisonment for a period of two (2) years. 20. It reveals from the impugned judgment that defence side has produced, during course of argument, photo copy of judgment dated 30.07.2003 passed in S.T No. 25/95 by the then learned Fast Track Court No. 3, Bokaro by which the informant, his sons and nephew were found guilty under Section 307/34 of the I.P.C. 21. So far as the evidence of prosecution witnesses is concerned, PW-1 is Bhushan Mahto has supported the prosecution case by stating therein that while he was cutting the soil on the land in question then the appellants namely Kanchan Mahto (i.e. Appellant no.3), Sudhir Mahto, Yudhisthir Mahto (i.e. Appellant no.4), Manindra Mahto (i.e. Appellant no.2) and Bhisham Mahto (i.e. Appellant no.1) arrived there and they forbade him from cutting the soil and for which an altercation took place and Kanchan Mahto had assaulted him by axe but he caught the said axe by his hand and upon which Manindra Mahto, Bhisham ( 2025:JHHC:31324 ) 7 Mahto and Sudhir Mahto had assaulted him by lathi due to which he fell down and and due to which he sustained head injury. When his Aunt came to save them then Kanchan Mahto assaulted her by axe on her head. However, appellant no. 1 Bhisham Mahto had assaulted Arjun Mahto i.e. the informant by lathi and Kanchan Mahto assaulted him by axe on his forehead due to which he fell down and sustained injury. During cross-examination, he admitted to be acquainted with Charan Mahto who had got one daughter Thupia Devi. He also stated and admitted that his grand father and accused persons were family members and Gotia. He further admitted that disputed land was executed in favour of Kanchan Mahto i.e. Appellant no. 3 by Thupia Devi by registered sale deed no. 6959 dated 18.07.1980 and he also put the signature in the sale deed as witness. He further admitted that he along with his uncle, aunt and cousins were cutting the soil in the land by one Gauita and Kudali. He claimed that the blood has started coming out from his body and head and his cloth became wet with the stain of blood and even the cloth of his uncle, aunt and cousin got stained in pool of blood and he gained conscious in the hospital and his statement was recorded by the police in the hospital and at that time, he was in the jail in the counter case which is pending in Fast Track Court No. 3 and in the said case he along with Arjun Mahto, Pawan Mahto and Pandu Mahto are accused. However, police had not taken his blood stain cloth. 22. Thus, from scrutinizing the evidence of PW-1, it is evident that he along with the informant and his family members were cutting the soil from the land of Appellant no. 3 Kanchan Mahto due to which an altercation took place. He claimed to have ( 2025:JHHC:31324 ) 8 sustained injury on his body and his clothes were full of blood and no such clothes were produced during the trial. He had also not stated about the injury sustained by the appellants in the counter case. 23. PW-2 is Pandu Mahto who is the son of the informant and stated during his evidence that while his father was cutting soil of the land then the appellants and one Sudhir Mahto arrived there and Kanchan Mahto assaulted his father by tangi on his head whereas, the other appellants and one Sudhir Mahto had assaulted him lathi due to which he sustained injuries as there was an altercation between both the sides with regard to the land. During cross-examination, he stated that his father and Bhuwan Mahto were cutting the soil in the field which was situated at a distance of half Kosh from his house and he had gone to see his father. He further claimed that his father gained consciousness after two (2) days of occurrence whereas, they were admitted to I.T.I Hospital at I.T.I More. However, police had not taken the blood stain clothes. He further claimed that he along with his mother Reshmi Devi, father Arjun Mahto and Bhuwan Mahto were remained in hospital for around nine (9) days. Thereafter, he has gone to jail. He also admitted that when Kanchan Mahto i.e. appellant no. 3 had instituted case upon him, his father, Bhuwan (i.e. PW-1) and one Pawan Mahto which is pending in the Court of A.S.J-I (i.e. Additional Session Judge-I), Bokaro. Thus, PW-2 also reveals that he had sustained injuries. 24. Thus, from scrutinizing the evidence of PW-2, it is evident that the evidence of PW-2 is exaggerated as he claimed that his father gained consciousness after two days which is not ( 2025:JHHC:31324 ) 9 correct because the F.I.R was lodged on the same date of occurrence i.e. on 23.10.1990. 25. PW-3 is Arjun Mahto (i.e. the informant) who stated during his evidence that while he was cutting the soil, he was assaulted by Kanchan Mahto by Tangi and Tangla on his head and Maninder Mahto by Tangi due to which he became unconscious. He proved the signature on the fardbeyan marked as Exhibit-1. During cross-examination, he admitted that accused persons are his Gotia and Kanchan Mahto (i.e. Appellant no. 3) had instituted case upon him, his brother and his nephew in S.T case No. 25/95 which is pending in Fast Track Court No.III, Bokaro. He further admitted that Kanchan Mahto (i.e. Appellant no. 3) had forbidden him for cutting the soil as the agricultural land belongs to him. Apart from the informant, family members and accused persons there were no other person. 26. Thus, from scrutinizing the evidence of PW-3, it is evident that PW-3 has supported his case but it has also come on record with the land in question which was purchased by Kanchan Mahto (i.e. Appellant no.3). 27. PW-4 is Reshmi Devi who is the wife of the informant and has supported the prosecution case and stated during her evidence that she also sustained injuries caused by the Appellant no. 3 Kanchan Mahto by Tengla on her head whereas, Yudhisthir Mahto, Maninder Mahto, Bhisham Mahto and Sudhir Mahto had assaulted Pawan Mahto and Bhuwan Mahto. During cross-examination, she claimed that she remained in hospital for some days. She also admitted that Kanchan Mahto (i.e. Appellant no. 3) had instituted case upon her husband, devar and nephew. She also denied the suggestion for instituting this ( 2025:JHHC:31324 ) 10 false case in order to escape from the case instituted by Appellant no. 3 Kanchan Mahto. 28. Thus, on the point of occurrence and assault, PW-4 has also supported the prosecution case. 29. It reveals that the I.O and Doctor of this case had not been examined. It further reveals that the injury report of the injured persons i.e. PW-1, PW-2, PW-3 and PW-4 namely Bhushan Mahto, Pandu Mahto, Arjun Mahto, Reshmi Mahto have not been brought on record and thus, injury on the person of the informant and aged persons has not been proved by the prosecution. 30. DW-1 is Sona Ram Kumbhkar who has proved the original registered sale deed dated 18.07.1980 executed in favour of Kanchan Mahto on 18.07.1980. Exhibit-B is the rent receipt in respect of said land for which the occurrence had taken place. 31. It reveals that on scrutinizing the evidence of both the sides, it is clear that the informant had sustained injuries also but the injury report has not been proved. 32. Therefore, the learned Court below has convicted the appellants under Section 324 of the I.P.C in the absence of injury report. 33. It further reveals that so far as Kanchan Mahto (i.e. Appellant no. 3) is concerned, he is said to have assaulted the informant and his family members by axe as stated by PW-1 and PW-2 namely Bhushan Mahto and Pandu Mahto respectively by Tengla as stated by PW-3 and PW-4 namely Arjun Mahto and Reshmi Mahto respectively. 34. It is evident from the prosecution witnesses that PW-1 and PW-3 admitted that the land was purchased by Kanchan Mahto (i.e. Appellant no.3) and the informant side appears to be ( 2025:JHHC:31324 ) 11 the aggressor and even the informant had not stated about the injury sustained by the appellants while instituting the F.I.R against them. 35. Under the circumstances, the conviction of the Appellant no. 3 Kanchan Mahto is altered from Section 324 to Section 323 of the I.P.C in absence of injury report as well as X-Ray Plates and opinion of Doctor upon X-Ray report. 36. It also reveals from the Lower Court Records that the Appellant no. 3 Kanchan Mahto had remained in custody for around five (5) months when the trial was pending before the Court below. 37. Under the circumstances, the period undergone by the appellant no. 3 Kanchan Mahto shall be the period of sentence. 38. So far as the conviction and sentence of Appellant No. 1, 2 and 4 namely Bisham Mahto @ Bhisam Mahto, Manindra Nath Mahto and Yudhisthir Mahto are concerned and considering the fact that the occurrence had taken place in the land of Appellant no. 3 and injury report of the injured persons have not been proved, the appellant nos. 1, 2 and 4 namely Bisham Mahto @ Bhisam Mahto, Manindra Nath Mahto and Yudhisthir Mahto are acquitted for the offence under Section 324/34 of I.P.C and discharged from the liability of their bail bonds. 39. Thus, Criminal Appeal (S.J) No. 928 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. (Sanjay Prasad, J.) Avinash/ N.A.F.R ( 2025:JHHC:31324 ) 12