1 2019:JHHC:40002 Cr. Appeal (SJ) No. 697 of 2004 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (SJ) No. 697 of 2004 [Against the judgment of conviction and order of sentence dated 31.03.2004 passed by Sri Radha Mohan Tiwary, learned Additional Sessions Judge, FTC-V, Hazaribag in Sessions Trial No.354 of 1999] -------------- Lutungdhari Mahto son of Late Mohar Mahto, resident of village-Harli, P.S. Barkagaon, District-Hazaribag … … Appellant Versus 1. The State of Jharkhand 2. Bisun Gope son of late Akal Gope village Bhaduli P.S. Barkagaon, District-Hazaribag … … Respondents -------------- PRESENT HON’BLE MR. JUSTICE RAJESH KUMAR -------------- For the Appellant :Ms. Shreya Sinha, Adv. For the State :Mr. V.S.Sahay, A.P. P. -------------- Order No.21/ Dated 07th November, 2025 1. Heard Ms. Shreya Sinha, learned counsel for the appellant and Mr. V.S.Sahay, learned A.P.P., appearing for the State. 2. This appeal is directed against the judgment of conviction and order of sentence dated 31.03.2004 passed by learned Additional Sessions Judge, FTC-V, Hazaribag in Sessions Trial No.354 of 1999, whereby and whereunder the appellant has been convicted for the offence under Sections 307 and 341 of the Indian Penal Code and has been sentenced to undergo R.I. for seven years for the offence under Section 307 of IPC with a fine of Rs.500/-. In default of payment of fine, further sentenced to undergo R.I. for six months. He has been further sentenced to undergo R.I. for one month for the offence under Section 341 of IPC and all the sentences were directed to run concurrently. 3. The criminal law has put into motion by lodging an F.I.R. being Barkagoan P.S. Case No.76 of 1988, (G.R. Case No.1823 of 1998) under Sections 341, 323, 326 and 307/34 of Indian Penal Code. 4. The F.I.R. has been lodged on the fardbeyan of the informant, namely, Bishun Gope. The brief fact of the case is that 2 2019:JHHC:40002 Cr. Appeal (SJ) No. 697 of 2004 in the night of 11.09.1998 at about 8.00 P.M. after taking meal he came out to give food to his dog. Then two persons came there. One of them caught hold of him and other person started assaulting him with Dab on his head as a result of which he got injured and blood started coming out from his head. After the said injury the informant fell down on the ground and cried. On hearing his cry his son, namely, Lilo Gope came out from his house. Meanwhile two persons consisting of Latungdhari Mahto came out from the side of heap of husk. Then Latungdhari Mahto asked to do away with the life of the son of the informant with the averment that the boss has come out. Having heard such statement of Lutungdhari, person remained standing nearby informant and the appellant along with two persons having caught hold of Lilo Gope, the son of the informant, injured deadly Lilo Gope with the help of lathi, Dab and knife. Consequently, the son of the informant fell down and started raising alarm. The informant made an allegation that these person would now die. Then the accused persons tied the hands and legs of the injured persons with lungi and thereafter pushed them inside the room and after that they left the place of occurrence. It is further alleged in the fardbeyan that at about 1 ½ years ago, the son of the informant-Lilo Gope had assaulted the appellant on account of the dispute, which has occasioned during the course of collection of cow dung and irrigating field. Due to this incident, the appellant had threatened to assault the son of the informant. 5. On the basis of said allegation, the police after investigation has submitted the charge-sheet under Sections 341/ 323/ 326 and 307/34 IPC against this appellant only, although the allegation is against 4-5 persons. Accordingly, cognizance has been taken under Sections 341/ 323/ 326 and 307/34 of IPC and the case has been committed to the court of Sessions. On conclusion of trial, the appellant has convicted under Sections 307 & 341 of the IPC to which appellant has pleaded not guilty and claimed to be tried. 6. To substantiate the prosecution story, altogether eleven witnesses have been examined. 3 2019:JHHC:40002 Cr. Appeal (SJ) No. 697 of 2004 P.W.-1 is Bhuneshwar Gope, P.W.-2 is Gopal Gope, P.W.-3 is Triloki Gope, P.W.-4 is Lilo Gope, who is son of the informant and one of the injured, P.W.-5 is Basudeo Gope, P.W.-6 is Janki Gope, P.W.-7 Chandwa Devi wife of the informant. P.W.-8 is Bishun Gope (the informant), P.W.-9 is Dr. R.C.Prasad, who examined the injured (P.W.-4 and P.W.-8), P.W.-10 is Kailash Ram, (a formal witness) and P.W.-11 is Rameshwar Singh, (the Investigating Officer). P.W.-1-Bhuneshwar Gope has stated in his evidence in chief that the occurrence is of 04 years back of night and he learnt about the occurrence in the next day and he saw Bishun Gope and his son in injured condition. There was injuries on their body and head. He has stated that they were brought to the police station and hospital by the people. He has also identified the accused person in the court. He has stated that there was previous enmity between the parties. In his cross examination he has stated that 2 to 3 months after the earlier dispute, the occurrence took place. P.W.-2, Gopal Gope has admitted that he know about the occurrence on the next day in the morning and saw the injured in bad condition in their house. He has further stated that there was earlier dispute between the parties. He has also identified the accused. Further, he has stated that he has gone to panchayat to settle the dispute but in vain. P.W.-3, Triloki Gope has stated that the next day of occurrence, he visited the house of injured and found head injuries on the victims. Thereafter both the injured were taken to hospital. He was told by Bishun Gope (informant) that the accused had assaulted him. In his cross examination, he has stated that in the place of occurrence, blood was found on the ground and clothes of both the victims were found stained with blood. He has further stated that the injured took the name of accused in presence of many persons. P.W.-4, Lilo Gope, is son of the informant as well as one of the injured. In his evidence-in-chief, he has stated that at the time of occurrence he was in the house and heard his father being assaulted by the accused. He went out to save his father but he was also assaulted by the accused. Thereafter he and his father were tied with the help of lungi by the accused and they were 4 2019:JHHC:40002 Cr. Appeal (SJ) No. 697 of 2004 locked inside the room. He has further stated that there was earlier dispute in the matter of irrigation and collecting cow dung, due to which this occurrence has been taken place. He has further stated in his cross-examination that he and his father had five stiches over their head and there were three persons involved in the assault. He has also denied the suggestion of defense of bringing a false case against the accused. P.W.-5, Basudeo Gope has stated in his evidence in chief that the occurrence is of four years back and he heard about the incident in the next morning and thereafter he went to the house of Bishun Gope and found Bishu Gope and Lilo Gope in injured condition. Lilo Gope was in senseless condition and Bishun Gope has told him that the accused has injured him and his son. P.W.-6, Janki Gope has stated in his evidence-in-chief that the occurrence is of four years back and he heard hulla of the incident. In the next morning, he went to the house of Bishun Gope and found him and his son in injured condition. Lilo Gope was in senseless condition and Bishun Gope has told him that the accused and other person had assaulted them with knife. He has identified the accused. In his cross-examination he has stated that Lilo Gope had fallen in the paddy field and Bishun Gope was at his angan and he had seen the clothes stained with blood. P.W.-7, Chandwa Devi (wife of the informant) has stated in her evidence in chief that the occurrence is of about four years back and at that time she was inside her house and after taking meal when she went out, she saw one person caught hold of her husband and assaulting him with knife as a result of which he fell down. Further when her son went to save his father, he was also assaulted on his head. She was not assaulted. After assaulting them, their legs and hands were tied and confined to a room. On the next day, both were taken to the hospital for treatment. She has further stated that there was previous enmity and she has also identified the accused. In her cross-examination, she has stated that she and others saw the occurrence after coming outside and saw blood fallen in bari and angan. 5 2019:JHHC:40002 Cr. Appeal (SJ) No. 697 of 2004 P.W.-8, Bishun Gope (informant) has stated in his evidence in chief that the occurrence is about four years back. At about 8-9 P.M., when he came out from his house to provide meal to his dog, a person caught him and other person hit his head with Dab, as a result, he fell down and raised hulla. On his hulla, his son-Lilo Gope came out from the house and thereafter, he was also assaulted with Dab, knife and lathi on his head due to which he fell down. He has also stated that the accused has assaulted and tied them from behind in a room and locked the door. Thereafter, the accused fled away. Later on, they were taken out from the room and released. During treatment in the hospital, his statement was recorded by the police. He has also identified the accused in the dock. P.W.-9, Dr. R.C. Prasad is the Doctor, who has examined the injured. He has admitted that some injuries were grievous in nature caused by sharp edge cutting weapon. Rest injuries were simple in nature caused by hard and blunt substance which may be caused due to fall on hard surface. P.W.-10, Kailash Ram is a formal witness, who has proved the F.I.R. marked as Ext.-2 P.W.-11, Rameshwar Singh, the Investigating Officer of the case has stated in his evidence-in-chief that on 12.09.1998, he has recorded the statement of victim-Bishun Gope in Barkagaon Government Hospital. He has stated that at the place of occurrence, he found mark of blood. In Maduli Pipradih village i.e. the place of occurrence, there was only two houses which are of the informant and one Gopi Bhuiyan. After recording the statement of the witnesses and on completion of investigation, he has submitted the charge sheet. The defense has examined only one witness, namely, Sheo Shankar @ Shibu (D.W.-1), who claims himself as a Press Reporter of Hindi Daily Newspaper (Prabhat Khabar) to the effect that the theft has taken place in the house and that has been misused to settle the score with the present appellant as the parties are on litigating term. 7. Learned counsel for the appellant has submitted that there are only two eye-witness to the incident i.e. P.W.-4 and P.W.-7 and rest are not eye-witnesses to the assault. P.W.-4 and P.W.8 are the 6 2019:JHHC:40002 Cr. Appeal (SJ) No. 697 of 2004 injured witness. P.W.-7 who is wife of the informant has also claimed that she was present in the house. 8. It has been further submitted that only material against the appellant is the eye-witnesses i.e. P.W.-4, P.W.-7 and P.W.-8. 9. Referring to the deposition of P.W.-4, it has been submitted that it has been admitted by the P.W.-4 that there was previous enmity. So far as P.W.-7 and P.W.-8 are concerned, their cross examination also suggest that there was previous enmity. 10. It has been further submitted that save and except the oral statement of P.W.-4, P.W.-7 and P.W.-8, there is no corroborating material available on record. Further, witness has deposed that there was blood stained cloth and other things but nothing has been produced in the Court. So far as the Investigating Officer is concerned, he has found nothing at the place of occurrence rather no material has been brought on record suggesting that the place of occurrence is the house of the victim. 11. The Investigating Officer has stated that he has seen the victims in the hospital and he obtained the injury report from there. Although, I.O. has stated that he has visited the place of occurrence and seen blood there but that blood has not been collected. Thus, there is no forensic material available on record corroborating the oral evidence. 12. It has been further submitted that there is a paper report and that defense has also produced, wherein the news was there that some theft takes place in the house and both the victims were assaulted. To settle the earlier dispute, this false case has been lodged. 13. It has been further submitted that even it is presumed that the appellant has assaulted the victims then it was done by several persons not alone by this appellant and he has been convicted without taking the aid of Section 34 of IPC. Thus, the entire injury cannot be attributed to him alone. 14. It has been further submitted that it is settled principle of law that Section 307 IPC gets attracted only when the appellant has taken all attempt for killing the person but he is beyond the circumstances under his control. In the present case, the victims have been locked into the room by tying their hands, meaning 7 2019:JHHC:40002 Cr. Appeal (SJ) No. 697 of 2004 thereby, they have been left alive, there was no intention to kill. At best it is a case of Section 308 of IPC. 15. It has been further submitted that the incident is of the year 1998 and the appellant is an old person aged about more than 80 years and as per the custody report, he has remained in custody for about 08 months and as such prayer has been made to reduce the sentence to the period already undergone by him. 16. On the other hand, learned counsel for the State has supported the judgment of conviction and submitted that the injured witnesses have clearly stated that they have been assaulted by this appellant and their target was head and as such the conviction under Section 307 is totally justified. 17. Having heard learned counsel for the parties and on perusal of the record, it appears that although injury has been proved but so far as causing the injury by the present appellant is concerned, the only material available on record is the oral evidence of P.W.-4, P.W.-7 and P.W.-8. 18. So far as suggestion given by the P.W.-4, P.W.-7 and P.W.- 8 that there was previous enmity that has been accepted. Further, defense has been taken that there was an incident of theft and that has been misused for settling the score with present appellant. 19. It further appears that there is no corroboration of the oral evidence by any material available on record. Neither anything has been seized nor anything has been brought on record to corroborate the oral statement given by the P.W.-4, P.W.-7 and P.W.-8. 20. Law is settled that if there is a lacuna in the evidence or it creates an arena of doubt then the benefit has to be extended to the accused. In the present case, the enmity is accepted and there is no corroboration by any other material or independent witness. 21. Although, it has been stated by the witness that the cloths have blood stains and blood was present at the place of occurrence also. Converting the material to the evidence is the duty of the prosecution. If they have failed to convert enough material into evidence which are sufficient to connect the accused with the crime then only the accused can be convicted. 8 2019:JHHC:40002 Cr. Appeal (SJ) No. 697 of 2004 22. In the present case, this Court finds that except oral evidence, there is no other material and the given facts and circumstances of the case, oral evidence requires corroboration as there was previous enmity between the parties. Further, the chance of theft can also be not ruled out as there was other person involved in the alleged crime but they have not been identified. The manner of commission of crime also suggest that the possibility of theft cannot be ruled out. 23. In view of above discussion, this Court finds that there is enough area of doubt which has to be extended to the appellant. Accordingly, the judgment of conviction and order of sentence dated 31.03.2004 passed by learned Additional Sessions Judge, ADJ-V, Hazaribag in Sessions Trial No.354 of 1999 is, hereby, set aside. 24. The appellant is on bail and as such he is discharged from the liability of the bail bonds. 25. In the result, the appeal stands allowed. 26. Let the Trial Court Records be sent back to the Court concerned forthwith, alongwith the copy of this Judgment. (Rajesh Kumar, J) Jharkhand High Court at Ranchi Dated 07th November, 2025 Shahid/N.A.F.R./