IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal No. 1461 of 2007 [Against the Judgment of conviction and Order of sentence dated 29.10.2007, passed by learned 5th Additional Sessions Judge, F.T.C. at Jamtara in Sessions Trial No. 64 of 2005 and 208 of 1996.] 1. Madhu Sadan Mondal @ Madhumandal, Son of Late Satish Mondal. 2. Kutur Gorain @ Kutara Gorain, Son of Late Sarathi Gorain. 3. Balram Mondal, Son of Late Rashik Mondal. 4. Kirtan Mondal, Son of Late Kenkar Mondal. 5. Sukhdeo Mohali, Son of Late Anand Mohali. 6. Ram Hansda, Son of Malinda Hansda. 7. Barun Mondal, Son of Balaram Mondal. 8. Nirad Mondal, Son of Balaram Mondal. 9. Bara Soren, Son of Late. M. Soren. 10. Suni Mondal, Son of Late Satish Mondal. All are residents of Village- Madhuban, P.S.- Nala, District- Jamtara, Jharkhand. ….. Appellants Versus The State of Jharkhand ….. Respondent ….. For the Appellants : Mr. Mahesh Tiwari, Advocate. For the Respondent : Mr. Prabir Kumar Chatterjee, Spl.P.P. ….. P R E S E N T HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA JUDGMENT Dated: 10th January, 2025 By Court:- Heard learned counsel for the parties. 2. Originally this appeal was filed by the thirteen appellants, out of them, Appellant No.3 Fuku Hansda, Appellant No.6 Lakhan Marandi and Appellant No. 7 Pawan Gorain have been died during the pendency of this appeal and the present appeal so far it relates to the Appellant No.6 Lakhan Marandi is concerned, has been abated vide order dated 10.05.2023 passed by Co-ordinated Bench of this Court. So far the Appellant No.3 Fuku Hansda, and Appellant No. 7 Pawan Gorain are concerned, a supplementary affidavit has been filed by the State annexing the certificate of the Mukhiya of the concerned Panchayati, who have certified their death. No substitution petition has been filed on behalf of the Appellant No.3 Fuku Hansda and Appellant No. 7 Pawan Gorain. Hence, this appeal so far it relates to Appellant No.3 Fuku Hansda, Appellant No.6 Lakhan Marandi is abated. 3. Appellants have preferred this criminal appeal challenging their conviction and sentence dated 29.10.2007 passed by learned 5th Additional Sessions Judge, F.T.C. at Jamtara in Sessions Trial No. 64 of 2005 and 208 of 1996, whereby and whereunder, the appellants have been convicted for the offence under Sections 147/148/323/324/326 read with Section 149 of the Indian Penal Code and sentenced to undergo R.I. for three years along with fine of Rs.500/- for under Section 326 of the I.P.C. with default stipulation and six months under Section 323 of the I.P.C. No separate sentence has been passed under other Sections. FACTUAL MATRIX 4. Factual matrix giving rise to this appeal in a narrow compass is that on 07.08.1994, at 07:00 AM, when the informant, his brother and father went to their field, which being grazed by cattle, meanwhile, all the accused persons came with lathi, axe, bows and arrows and started abusing them. One of them stated that “Salo ko Jan Se Mar K Fake Do”. Upon this, all the accused persons started assaulting them. Upon raising alarm, some villagers came and saved them. 5. On the basis of above information, FIR was registered against the above named accused persons for the offences under Sections 147, 148, 323, 324 and 307 of the I.P.C. 6. After completion of investigation, the Investigating Officer of the case has submitted charge sheet against accused persons. After taking cognizance, the case was committed to the court of Sessions for trial. Thereafter, the charges were framed for the offences under Sections 147, 148, 323, 324 and 307 of the I.P.C., which the accused persons denied and claimed to be tried. 7. In order to substantiate the charges levelled against appellants, altogether ten witnesses were examined by the prosecution. P.W.-1 : Shyamapad Mondal. P.W.-2 : Vijay Mondal. P.W.-3 : Shantimai Mondal. P.W.-4 : Nimai Mondal. Page 4 of 8 P.W.-5 : Sunil Mondal. P.W.-6 : Gopal Gosh. P.W.-7 : Mantri Mondal. P.W.-8 : Judho Mondal. P.W.-9 : Dr. S.N. Mishra. P.W.-10 : Raghunath Jha. 8. Apart from oral evidence, following documentary evidences were also adduced. Exhibit-1 : Signature of the informant on Fardbayan Exhibit-1/1 : Signature of witness on Fardbayan. Exhibit-1/2 : Entire Fardbayan. Exhibit-2 : Entries of Sl. No. 120 to 122 of indoor register. Exhibit-3 : Discharge slips of Nandlal Mondal. Exhibit-3/1 : Discharge slips of Mantromondal. Exhibit-3/2 : Discharge Slips of Yudhistri Mondal. 9. The learned counsel for the appellants without touching the merits of the judgment of conviction has confined his argument on the point of sentence and submits that there are three injured persons in this case. Some of them have sustained fracture injury, but there is no direct and specific allegation against any appellant, as to who has caused specific injuries to the injured. No injury has been found to be caused by any sharp cutting weapon rather it is alleged that lathi and danda were used causing fracture injury. Therefore, offence under Section 326 for which the appellants have been held guilty and sentenced is not applicable in this case rather in the facts and circumstances of the case offence under Section 325 of the I.P.C. is attracted. The appellants have been sentenced for R.I. of three years without aid of Section 149 of the I.P.C. Appellants have also served the imprisonment of about 4 months during trial of the case. The occurrence is of the year, 1994, more than three decades has been lapsed. The appellants have never been previously convicted for any offence. Therefore, sentence may be reduced. 10. Per contra, learned Spl.P.P. appearing for the State has opposed the aforesaid contentions and defended the impugned judgment on merits, but has raised no serious objection regarding point of sentence. 11. I have gone through the record of the case along with the impugned judgment, in the light of contentions raised on behalf of respective parties. Page 6 of 8 12. It appears that altogether ten witnesses were examined by the prosecution, out of them, the P.W.-1 Shyamapad Mondal P.W.-2 Vijoy Mondal, P.W.-3, Shantimai Mondal P.W.-4 Nimai Mondal, P.W.-5 Sunil Mondal and P.W.-6 Gopal Ghosh have been declared hostile by the prosecution. 13. P.W.- 7 Mantri Mondal and P.W.-8 Judho Mondal are the brother of the informant. They have fully supported the prosecution story and have stated that at about 07:00 AM, they were grazing cattle with their brother (informant). At the same time, about 15 miscreants armed with lathi, bow, arrow and kulhari came and started assaulting the informant. They have further stated that the injuries were caused on informant’s head, hand and leg. It is further stated that their father has also sustained some injuries. They have further stated that through intervention of Haradhan Mondal, Paresh Mondal and Debu Mondal, their lives were saved. Informant and his father were taken to hospital for treatment. 14. P.W.-9, Dr. S.N. Mishra, from the serial no. 120 to 122 of the admission registers of indoor patient of Jamtara hospital, has proved the injuries. It shows that three injured persons were admitted there on 08.08.1994 on being referred from Nala P.H.C. It further shows that all the three injured had multiple injuries and were discharged on 11.08.1994. The informant Judho Mondal had fracture on his leg, hand and finger. Mantari Mondal and Nandlal Mondal have fracture on their hand and finger. 15. It appears from the medical evidence that none of the injuries were caused by the sharp weapons, rather by hard and blunt object. Hence, the conviction of the appellants under Section 326 of the I.P.C. is not justified rather from the facts and circumstances proved by the prosecution, the case falls under the Section 325 of the I.P.C. Therefore, the conviction of the appellants altered into Section 325 of the I.P.C. in place of Section 326 of the I.P.C. 16. So far sentence is concerned, since the appellants were never previously convicted and during pendency of this appeal, they have not been involved in any other offence as well as the occurrence is of the year 1994, and more than two decades has been passed. Appellants have also remained in the custody about two months. Hence, the appellants are convicted for the imprisonment already undergone. 17. In view of aforesaid discussion and reasons, Conviction and sentence of appellants is altered and modified to the extent mentioned above and this appeal is partly allowed. Page 8 of 8 18. Appellants are on bail, they are discharged from their respective liability of bail bonds and sureties are also discharged. 19. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful. (Pradeep Kumar Srivastava, J.) Jharkhand High Court at Ranchi. Dated: 10th January, 2025. Simran/-NAFR