Nakal Mahamarik And Ors vs State Of Jharkhand

Heard Mr. Bhupal Krishna Prasad, learned counsel for the appellant and Mr. Sardhu Mahto, learned A.P.P. appearing for the State.

During course of the argument, it has been submitted by the learned counsel for the appellants that appellant no. 2, Upendra Mahamarik has died. Accordingly, the appeal as against the appellant no. 2, Upendra Mahamarik stands abated.

This appeal is directed against the judgment of conviction and order of sentence dated 04.02.2006 passed by Shri Rama Shankar Shukla, IVth Additional Sessions Judge, (F.T.C.) Dumka in Sessions Case No. 05/2004 and 07/2004 whereby and whereunder the appellants have been convicted under Section 323 and 341 of the I.P.C. and has been sentenced to undergo rigorous imprisonment for six months and S.I. for 15 days respectively.

The prosecution case as disclosed in the F.I.R. dated 27.04.2003 is that on 25.04.2003 at about 5 P.M. when the informant namely, Sobha Kant Bhagat (P.W. 2) was returning from Dumka and was about to board Balajee Bus at Hansdiha Chowk, then five accused persons has abused him and Upendra Mahamarik (appellant No.2) has forcibly tied napkin around the neck of informant and tried to kill him. Another accused has assaulted the informant by fists and slaps on his chest and caused injury on his head. On the intervention of Kashinath Sah and Santosh Prasad Sah, the informant could be saved and thereafter he boarded another bus and went to his village Chakrapathar. Out of fear, he has not reported the matter to the police immediately and on 27.04.2003 at around 10:30 AM, the matter has been reported to the police station. Accordingly, Saraiyahat (Hansdiha) P.S. Case No.53/03 u/s 147/ 341/ 323 and 307 of the IPC has been registered. After completion of investigation, charge-sheet has been submitted against all the five accused named in the F.I.R. Thereafter, cognizance has been taken. The case has been committed to the court of sessions. All the accused persons have pleaded not guilty and have denied the incident and claimed to be tried.

Prosecution to prove his story has examined altogether six witnesses.

P.W-1 and P.W.-5 has claimed to be eye witnesses.

P.W.-2 is the informant.

P.W.-3 has turned hostile.

P.W.-4 is the Doctor, who has proved the injury which has been marked as Ext-2.

P.W.-6 is the I.O.

Argument has been advanced that the alleged incident has occurred at about 5 P.M on 25.04.2003 in the bus stand near the police station but F.I.R. has been lodged two days thereafter i.e. on 27.04.2003. As per the injury report, life of injury is 12 hours but as per the F.I.R. it should be minimum more than 40 hours.

There is dispute between the parties and several litigation including criminal litigations is going on. In one of the litigation the appellant has been convicted arising out of G.R. Case No.370 of 2003. The cause of dispute between the parties is the agency of the bus. The implication is totally false as the same is falsified by the medical evidence and further no independent witness has supported the incident, even named persons namely Kashinath Sah and Santosh Prasad Sah, who have intervened and saved the informant have not been examined. Santosh Kumar Sah has not named the appellant No.1. There is discrepancies in the deposition of P.W.1, P.W. 2 and P.W. 5.

On the other hand, learned APP has opposed the prayer and submitted that the incident has been proved by eye witness and injured witness i.e. P.Ws.-1 and 2. It has been further submitted that it is settled principle of law that if there is conflict between the ocular evidence and medical evidence then ocular evidence will prevail if it transpires confidence.

Heard learned counsel for the parties.

It is admitted position that there is dispute between the parties due to agency. There are several reported incident between the parties and in one of the incident these appellants have been convicted. Thus, there is reason for false implication and this has to be ruled out by reliable evidence.

Although incident took place near the police station but the same has been reported after two days. Injury also does not support the version of the prosecution. From perusal of the deposition of P.W.-1, P.W.-2 and P.W.-5, it transpires that there are material contradictions and due to this material contradiction, the other three charged persons namely, Rajender Mahamarik, Subodh Yadav and Pramod Yadav have been acquitted.

Informant has grudge against these appellants. P.W.-1 has only indentified Upendra Mahamarik i.e. appellant No.2 and has not identified Nakal Mahamarik i.e. appellant No.1 in the court below. Although he has stated that he has seen the incident.

P.W.-5 has stated in his deposition that he has been informed regarding the identity of Nakal Mahamarik and Upendra Mahamarik and as such his deposition is not reliable.

In view of above discussion, this Court finds that there is considerable doubt regarding the incident as well as the involvement of these appellants. Accordingly, the conviction of appellant no. 1 is not sustainable and as such, this Court finds that judgment of conviction and order of sentence dated 04.02.2006 passed by Shri Rama Shankar Shukla, IVth Additional Sessions Judge, (F.T.C.) Dumka in Sessions Case No. 05/2004 and 07/2004 is, hereby, set aside. Accordingly, the appeal is, hereby, allowed.

Since the appellant no. 1 is already on bail, he is discharged from the liability of his bail bond.