Shankar Manjhi & Ors. vs The State Of Jharkhand

Heard learned counsel for the appellants, learned A.P.P. as well as learned counsel appearing for the informant.

Instant criminal appeal is directed against the judgment and order of conviction and sentence dated 12.07.2005 / 13.07.2005 passed by the learned Addl. Sessions Judge, F.T.C.-II, Bokaro in S.T. Case No. 57 of 2004, whereby and whereunder, the appellants have been convicted for the offences punishable under Sections 147, 436, 307/149 of the I.P.C. and sentenced to undergo R.I. for 7 for the offence under Section 307/149 of the I.P.C.; R.I. for 5 years under section 436/149 I.P.C. and R.I. for two years under Section 147 I.P.C. alongwith the fine of Rs. 500/- each with default stipulation.

Factual matrix giving rise to this appeal is that on 18.08.2003 at about 2:00 P.M., the informant alongwith his brother was taking lunch in his house. In the meantime, accused Santosh Manjhi, Shankar Manjhi, Ranjit Manjhi, Arjun Manjhi, Sitaram Manjhi, Gunadhar Manjhi, Ananta Manjhi, Bhagirath Manjhi, Meghan Manjhi, Amar Manjhi, Durgacharan Manjhi, Sapan Manjhi and Biru Manjhi surrounded his house and set fire in the house of Ashwini Manjhi. It is further alleged that Santosh Manjhi caught hold of Ashwini Manjhi and Ananta Manjhi assaulted him by spade on his head due to which, he became unconscious. Then, the accused tried to catch informant also but he climbed on the roof of the house and closed the iron grill and saved himself. Thereafter, the accused persons fled away. The motive behind the occurrence was previous litigation between the parties in G.R. Case No. 648/1997, which was still pending in the Court and the accused persons were compelling the informant parties to compromise or withdraw the said case, to which they had declined.

On the basis of above information of the informant, F.I.R. being Chandankiyari P.S. Case No. 79 of 2003 dated 18.08.2003 was registered for the offence under Sections 147, 148, 149, 436, 452, 307 & 326 of the I.P.C.

After completion of investigation, the charge-sheet was submitted against 8 accused persons and after taking cognizance, the case was committed to the court of Sessions, where S.T No. 57 of 2004 was registered.

The appellants have denied the charge levelled against them and claimed to be tried.

In the course of trial, altogether 9 witnesses were examined by the prosecution apart from following documentary evidence:-

On the other hand, the defence has also examined two witnesses, namely, DW-1 Bishwajeet Patra and DW-2 Dr. Akhilesh Sharma and also proved Ext.- A: Certificate issued by DW-1, Ext.-B to B/1: prescription written by Dr. Akhilesh Sharma and certificate given by him; Ext.-C: certified copy of final report laid down in the Court against the accused Bhagirath Manjhi, Santosh Manjhi, Ranjeet Manjhi, Sitaram Manjhi and Biru Manjhi.

The learned Trial Court after scrutinizing the evidence oral as well as documentary led by the respective parties, arrived at definite conclusion about the guilt of the appellants for the aforesaid offences and sentenced them accordingly as stated above, which has been assailed in this appeal.

Assailing the impugned judgment, the learned counsel for the appellants has vehemently argued that the most important witness of this case is PW-5 injured Ashwini Manjhi, who has specifically stated about the overt act by Santosh Manjhi who caught hold of him and spade blow was given to him by accused Ananta Manjhi (Appellant no.-7). No specific overt act has been attributed against any other of the appellants. The common object of all the appellants is stated to be setting fire in the house of the informant’s brother-cum-injured of this case and it is not proved conclusively that house of the injured was burnt. The investigating officer has also not collected any burn articles or noticed anything at the place of occurrence showing that the house of injured Ashwini Manjhi was set on fire. Therefore, the very common object is not proved in this case. Hence, the other appellants cannot be attributed with common object for assaulting the informant’s brother. At the spur of moment, Santosh Manjhi and Ananta Manjhi might have formed common intention to assault the informant’s brother and spade blow was given only by Ananta Manjhi, for which other appellants cannot be made responsible with the aid of Section 149 of the I.P.C. It is further submitted that the investigating office has admitted in his evidence that no food grains, clothes or other property kept in the house were found burnt and these articles were not produced during trial, hence, the charge under Section 436 I.P.C. has not been proved beyond doubt against the accused persons. The learned Trial Court has failed to record any findings as regards formation of any unlawful assembly by the appellants with any specific object, in prosecution of which, they acted in concerted manner as defined under Section 141 I.P.C. Therefore, conviction for the offence under Section 147 and for other substantive offence with aid of Section 149 is not justified under law. It is further submitted that no independent local villagers have corroborated the prosecution story regarding setting fire in the house of the informant's brother by the accused persons. The injured has also sustained a single blow injury by spade on his head on the spur of moment and he had undergone treatment for approx one month. The nature of injury though has been opined to be grievous in nature, but required intention and knowledge to constitute the offence under Section 307 is absolutely lacking in this case. The nature of injury sustained by brother of the informant through single spade blow clearly indicates that it is grievous in nature caused by hard and sharp cutting weapon, therefore, falls under Section 326 of the I.P.C., that is only against appellant no. 7. The appellant nos. 1-6 deserve acquittal from the charges levelled against them and their conviction and sentence is absolutely illegal and based upon improper appreciation of evidence available on record.

In the alternative, it is argued that the occurrence took place in the year 2003 and there was previous dispute in terms of litigation between the parties, which furnished motive for the occurrence. The appellant no. 7 Ananta Manjhi has assaulted the injured, who is aged about 59 years as per his Aadhar and other appellants are also aged between 60-70 years except appellant no. 2. One accused namely Meghnath Manjhi has died during the pendency of this appeal. The fine amount has been deposited before the concerned learned Trial Court. It is the first offence of the appellant and they have no criminal background. Hence, instead of awarding substantive sentence of imprisonment to the appellant no. 7, he may be extended the benefit of Section 4 of the Probation of Offenders Act, 1958.

Learned A.P.P. has opposed the aforesaid contentions raised by learned counsel for the appellants and defending the impugned judgment has submitted that the learned Trial Court has very wisely and aptly considered the overall aspects of the case and the testimony of ocular witnesses, who have categorically proved the charges levelled against the appellant beyond all reasonable doubt. The appellants forming an unlawful assembly have acted in concerted manner in execution of their common object to give murderous assault to Ashwini Manjhi and they also set fire in the house causing damages to his property. Therefore, there is no reason to interfere with the impugned judgment, which suffers from no illegality or infirmity. This appeal is devoid of merits and fit to be dismissed.

I have gone through the record of the case along with the impugned judgment and order in the light of the contentions raised on behalf of both side.

The only point for consideration in this appeal is, as to whether the impugned judgment of conviction and sentence suffers from any serious error or law calling for any interference or not?

Before adjudicating the above point, it is pertinent to apprise with the testimony of the witnesses examined during trial.

PW-1 Naveen Manjhi is nephew of injured Ashwini Manjhi. According to his evidence, he was studying on the roof of his house on 18.08.2003 at about 1:30 to 2:00. He saw that Ananta Manjhi, Bhagirath Manjhi, Gunadhar Manjhi, Sitaram Manjhi, Ranjeet Manjhi, Arjun Manjhi, Shankar Manjhi, Meghan Manjhi, Biru Manjhi, Durga Manjhi, Amar Manjhi, Sapan Manjhi, Santosh Manjhi armed with lathi and spade surrounded the house of his elder father Ashwini Manjhi from three sides and set fire in the house. When Ashwini Manjhi started to flee away, Santosh Manjhi caught hold of him and Ananta Manjhi gave spade blow on his head due to which he fell down. The accused persons also rushed towards Mantu Manjhi but he closed the gate and climbed over the roof of his house and saved himself. The motive behind the occurrence was pending criminal case between the parties, to which the accused persons were pressurizing to compromise or withdraw the case, which was denied by the informant party. This witness has been examined at length.

He admits in his cross-examination that accused Santosh Manjhi is in government service at Pathardih but he does not know where he works. He has denied the suggestion of defence that Bhagirath Manjhi, Ranjeet Manjhi, Biru Manjhi and Sitaram Manjhi were not present in the village at the relevant date and time of occurrence and their names have been given due to previous enmity.

PW-2 Kuber Manjhi is the son of injured Ashwini Manjhi. He has stated that the accused persons armed with lathi and farsa, surrounded his house from three corners and set fire in the house. His father went out from the house, then Santosh Manjhi caught hold of his father and Ananta Manjhi gave farsa. His uncle save himself by closing the gate and climbed over the roof of the house.

This witness also retrains in his cross-examination that he himself has seen the occurrence. He further admits that western side of the house made of phus was burnt to ashes. His father was admitted to Chandankiyari hospital, where he got treatment. This witness has denied the suggestion of defence that due to previous enmity, his uncle and father have falsely implicated the accused persons.

PW-3 Subhadra Devi is wife of the informant. She has also claimed to be eye witness of the occurrence. She has also stated the name of all the accused persons, who set fire in the house of Ashwini Manjhi and also rushed towards her husband for assaulting him but he saved himself by closing the door and climbing over the roof of the house. Previous pendency of a case is the motive behind the occurrence. There is nothing in her cross-examination to rebut the aforesaid testimony.

PW-4 Gandhari Devi has also stated that the accused persons surrounded the house of her Bhaisur, Ashwini Manjhi and set on fire. Her Bhaisur was assaulted by Tangi blow given by Ananta Manjhi while Santosh Manjhi caught hold of him. The occurrence took place due to previous pendency of a case between the parties.

In her cross-examination, she has admitted that she does not know as to which side of the house was set on fire. She has also stated that paddy, rice, clothes and bed sheets were burnt and seizure list was prepared by the police but she has not signed on the aforesaid list as it was not prepared in her presence.

PW-5 Ashwini Manjhi is the sole injured in this case. According to his evidence, on 18.08.2003 at about 1:30 to 2:00 P.M., he was taking lunch in his house and his wife and sons were also present. In the meantime, his house was surrounded by accused persons, namely, Santosh Manjhi, Ranjeet manjhi, Arjun Manjhi, Sitaram Manjhi, Gunadhar Manjhi, Meghan Manjhi, Bhagirath Manjhi, Shankar Manjhi, Ananta Manjhi, Amar Manjhi, Durga Charan Manjhi, Sapan Manjhi and Biru Manjhi, who set on fire from three sides of his house. Due to fear, he fled away towards the house of his brother Mantu Manjhi but in the way, he was caught hold by Santosh Manjhi and Ananta Manjhi gave a spade blow on his head due to which he fell down and became unconscious. He has also shown cut mark of his injuries on head during his evidence. This witness has further stated that he regained consciousness after 20-22 days at Bokaro General Hospital. Still his treatment is going on and he visits the doctor in each month. He further states that a case was earlier lodged against the accused persons, which is still pending and the accused persons were pressurizing him to withdraw or compromise the earlier case, to which he declined, then this occurrence took place.

He also reiterates in his cross-examination that due to fire set on his house, household utensils, clothes, food grains were burnt alongwith door of the house and other articles. Seizure list of burnt materials were prepared by the police. This witness has been examined at length but nothing has been elicited by defence to rebut his aforesaid testimony. He has denied the suggestion of defence that due to fall from roof of his house, he has sustained his injuries and due to previous enmity, involved the accused Ananta Manjhi for assaulting him and setting on fire of his house.

PW-6 Mantu Manjhi has also constantly corroborated is earliest version contained in his written report and stated that on 18.08.2003 at about 2:00 P.M., he was in front of his door and his brother Aswini Manjhi was taking lunch. Suddenly, his co-villagers, namely, Santosh Manjhi, Ranjeet manjhi, Arjun Manjhi, Sitaram Manjhi, Gunadhar Manjhi, Meghan Manjhi, Bhagirath Manjhi, Shankar Manjhi, Ananta Manjhi, Amar Manjhi, Durga Charan Manjhi, Sapan Manjhi and Biru Manjhi surrounded house of his brother Aswini Majhi and set on fire. When his brother was fleeing away and reached towards the door of this witness, in the meantime, Santosh Manjhi caught hold of him and Ananta Manjhi gave spade blow on his head due to which he became unconscious. The accused persons also rushed towards him for assaulting but he managed to flee away, closed the gate and climbed on the roof of his house. The reason of the occurrence is that in the year 1997, brother of this witness had lodged a case of assault against the accused persons bearing G.R. Case No. 648/1997, which was pending in the Court of Judicial Magistrate an the accused persons were putting pressure for withdrawal or compromise on the above case but his brother declined and in protest, this occurrence took place. His brother was sent to BGH for better treatment where S.I. Mandan Paswan arrived, his fardbeyan was recorded, over which he has proved his signature as Ext.-1. He also went alongwith the police to the place of occurrence from where the police seized blood stained soil and remains of burnt house of his brother. His brother got treatment about 22 days at BGH by supply of oxygen. Thereafter, about one week, he also got treated and still his treatment is going on by visiting the doctor in each month.

This witness has been cross-examined in detailed but reiterated the aforesaid story and there is nothing in his cross-examination to rebut his aforesaid testimony or disbelieve his evidence.

PW-7 Dr. Prabhat has proved injury report of injured Ashwini Manjhi, who was examined by him on 18.08.2003 at Bokaro General Hospital and found following injuries:-

Nature of injury was grievous caused by sharp edged weapon of less than two hours. Injury report is marked Ext.-2.

He has further stated that the patient was referred to Dr. N.K. Das for Neurological treatment.

In his cross-examination, he has stated that lacerated wound is caused by hard and blunt object and incised wound was is caused by sharp edge weapon.

PW-8 S.I. Madan Paswan is the investigating officer of this case. He has also recorded fardbeyan of the informant Mantu Manjhi (PW-6) at Bokaro General Hospital which is Ext.-1. Fardbeyan was sent to Chandankiyari P.S. for registration of the case. He assumed charge of investigation and recorded re-statement of the informant. Since injured was unconscious at that time, hence, he could not take his statement. He went to the place of occurrence, where he recorded statement of witnesses namely Subhadra Devi, Gandhari Devi, Kuber Manjhi, Naveen Manjhi and Janardhan Manjhi and inspected the place of occurrence. The place of occurrence of this case is mud tiled roof house of Ashwini Manjhi comprising one courtyard. Towards east, there is house of Pravir Manjhi. He found the house of Ashwini Manjhi was burnt. He also noticed that injured at the time of occurrence was taking lunch and food articles were scattered from plate. The second place of occurrence of this case is southern door, house of Mantu Manjhi (informant), where the injured had rushed for saving himself but he was caught hold by Santosh Manjhi and Ananta Manjhi gave spade blow on his head. He also noticed huge quantity of blood at the place of occurrence. He seized blood stained soil, burnt particles, ashes and half burnt bamboo, etc. from the place of occurrence in the presence of witnesses namely Dhelu Manjhi and Baliram Manjhi. He has proved seizure list as Ext.-3. Thereafter, he recorded statement of witness Bibhishan Manjhi and also arrested the accused Bhagirath Manjhi and further interrogated witnesses namely, Guhi Ram Manjhi, Ishwar Manjhi, Duryodhan Manjhi, Gambhir Manjhi, Subodh Manjhi and Ashok Manjhi. He also went to Bokaro General Hospital on 26.08.2003 but the injured Ashwini Manjhi was fighting between death and life and was put under oxygen supply. He has recorded the statement of injured Ashwini Manjhi on 25.03.2004. He has also interrogated with independent witnesses, namely, Nepal Manjhi, Prem Manjhi, Taniram Manjhi, Lakhan Manjhi and Nimai Manjhi.

In his cross-examination, he states that after completion of investigation, he found no sufficient evidence against the accused persons, namely, Bhagirath Manjhi, Ranjeet Manjhi, Santosh Manjhi, Sitaram Manjhi and Biru Manjhi and they were not sent up for trial. He further admits that injured Ashwini Manjhi has not stated before him that when he was taking lunch, his son and wife were present in the house with him. He has also not mentioned in the Case Diary whether any villagers had come to extinguish the fire set in the house of the injured. He has not recorded the statement of any independent eye witnesses of the occurrence. He has also not seized any burn house article or food grain or utensils in burn or half burn condition from the place of occurrence. He has also not mentioned in the Case Diary which part of the house was burnt and how many portion of the house was burnt. He has not seized blood stained clothes of the injured. He has denied the suggestion of defence that his investigation is defective and he has not properly investigated the case and without sufficient evidence he has submitted charge-sheet against the accused persons.

PW-9 Dr. Narendra Kumar Das is the head of Neurosurgery Department at Bokaro General Hospital. He treated the injured Ashwini Kumar, who had, as per CT scan report, facture in the head and haematoma in brain. Doctor has opined that if the patient was not treated on time, he would have died. He found haemotoma with blood in right parietal region with surrounding oedema and over lying fracture of parietal bone. On 15.05.2004, CT scan was done, the report is Ext. 4/2, which shows the recovery of the patient. The doctor found mixed density lesion on the right fronto parietal cortex, all venticles and basal cisterns normal, no mid line shift the bore window setting reveals fracture of right fronto parietal bone.

On the other hand, defence has also examined two witnesses.

DW-1 Biswajeet Patro is the principal of Sardar Patel Public School since 25.01.1999. He has proved the certificate issued in favor Bhagirath Manjhi, rickshaw puller, who was on duty on 18.08.2003 and after closing of school at about 1:50 P.M., he collected primary class students and departed to their house till 3:10 P.M. The certificate is marked Ext.- A.

DW-2 Dr. Akhilesh Sharan, medical officer at PHC, Baliapur, has deposed that on 18.08.2003 at about 11:50 A.M., he had treated accused Santos Kumhar, son of late Habu Kumhar at PHC Baliapur, who was suffering from abdomen pain. He also prescribed some medicines and issued prescription on the same day and proved his prescription dated 18.08.2003 as Ext.- B and certificate granted in favor of Santosh Kumhar to Ext.- B/1.

I have given anxious consideration to the overall aspects of the case and the material evidence available on record.

From the aforesaid discussion of ocular testimony of witnesses, it is crystal clear that so far charge under Section 436 I.P.C. is concerned, none of the witnesses has stated as to who has set on fire in the house of Ashwini Manjhi (PW-5). The seized materials have also not been brought on record as material exhibit rather seizure list simply shows that some burnt bamboo and woods were seized. The investigating officer has admitted in his evidence that he has not enquired with the independent local witnesses and none of the witnesses have stated that any person participated in extinguishing the fire set in the house of injured Ashwini Manjhi. None of the neighbors have come forward to state that how much portion of the house was burnt. Witness Kuber Manjhi (PW-2) has stated that towards eastern side of house of injured Ashwini Manjhi, some phus and straw were burnt but the injured himself has failed to give particulars of the burnt articles like, bed, bed sheets, wearing clothes, food grains, house hold utensils, etc. kept in the dwelling house. This fact has also not been proved by the investigating officer as to which portion of the house and to what extent, the house was found burnt and what kind of properties were burnt. At this juncture, it is relevant to extract the provision of Section 436 of the I.P.C.

In the instant case, there is no concrete evidence available on record to establish the ingredients of offence under Section 436 of the I.P.C. The learned Trial Court has simply swayed upon one breath statement of the witnesses about setting fire in the house of the injured and without any further description. Therefore, the finding recorded by the learned Trial Court recording the conviction of the appellants for the offence under Section 436 I.P.C. is absolutely unwarranted under law and appears to be beyond the weight of evidence available on record as discussed above. Therefore, the conviction of all the appellants for the offence under Section 436 of the I.P.C. is hereby set aside.

In order to prove an offence under section 307 of I.P.C. the essential mensrea to constitute the said offence has to be proved. Mensrea can be inferred from the kind of weapon used, nature of injury, force used and part of body etc. The onus lies on the prosecution that the accused has caused an act with intention or knowledge, and under such circumstances that if by such act death was caused, he would be guilty of murder.

In the instant case, the occurrence took place when the injured was fleeing away from his house, accused Santosh Manjhi caught hold of him and accused Ananta Manjhi (appellant no. 7) gave a spade blow on his head due to which he sustained injury on his head. Dr. Prabhat (PW-7) has examined the injured and opined the injury to be grievous in nature. The injured Ashwini Manjhi was referred to Dr. N. K. Das (PW-9) for neurological treatment, where the doctor opined that if the injured had not come on time, he might have died. The appellant Ananta Manjhi alone has inflicted spade blow. Injuries sustained by the injured and manner of assault clearly indicates that the required intention or knowledge for constituting the offence under section 307 of I.P.C is proved. Therefore, conviction of the appellant Ananta Manjhi (appellant no. 7) for the offence under Section 307 I.P.C. is affirmed.

So far the conviction of other appellants under Section 307 I.P.C. with aid of Section 149 I.P.C. is concerned, it appears that in the impugned judgment, the learned Trial Court has not whispered a single line about formation of unlawful assembly by the accused persons and what was their common object rather stretched upon gravity and nature of injury sustained by the injured and the involvement of several persons in executing the criminal act alleged in this case. The observation in concluding para from last line of page 18 to page 19 of the impugned judgment is as under:-

In the present case, though most of the witnesses have remained consistent on the point of setting fire in the dwelling house of brother of the informant but material collected during the investigation and brought before the Court during trial as material evidence, does not prove the commission of the offence under Section 436 I.P.C., hence, all the appellants have been acquitted but none of the witnesses has stated that whether the unlawful assembly was formed by the appellants for assaulting the injured Ashwini Manjhi in such a manner likely to cause death. None of the appellants except appellant no. 7 Ananta Manjhi have played any role in assault of injured Ashwini Manjhi, even none of the accused was holding any weapon. Hence, to bring the name of more than five persons due to previous litigation, which is not corroborated by the fact and circumstance as proved, cannot be said to be unlawful assembly as defined under Section 141 unless the common object is proved. The Hon'ble Supreme Court of India in the case of Zainul vs. The State of Bihar reported in 2025 SCC OnLine 2152 has held that mere physical presence at a crime scene does not automatically make someone a member of an unlawful assembly under Section 149 I.P.C. Therefore, the conviction of the other accused with aid of Section 149 I.P.C. is not proper. Hence, conviction of the appellant nos. 1-6 under Section 307/149 is set aside.

So far Section 147 of the I.P.C. is concerned, since the prosecution has failed to prove the formation of unlawful assembly as discussed above, all the appellants are hereby also acquitted from the conviction for the offence under Section 147 I.P.C.

In view of the above discussion and reasons, I find merits in this appeal. Accordingly, the impugned judgment of conviction and sentence of the appellants except appellant no. 7 Ananta Manjhi passed by the learned Trial Court is hereby set aside. The conviction and sentence awarded to the appellant no. 7 Ananta Manjhi for the offence under Section 307 of the I.P.C. is upheld.

Accordingly, this appeal is partly allowed.

Pending I.A.(s), if any, stands disposed of.

All the appellants are on bail. As such, appellant nos. 1 to 6 are discharged from liability of their bail bonds and sureties are also discharged.

So far the appellant no. 7 Ananta Manjhi is concerned, his bail bond is hereby cancelled. He is directed to surrender before the concerned Trial Court within two months from the date of this judgment and receive the remaining sentence awarded by the learned Trial Court, failing which, the learned Trial Court shall take all coercive steps in securing the attendance of the appellant and sending him under proper conviction warrant to jail custody for undergoing the remaining period of sentence awarded to him.

Let a copy of this judgment alongwith the trial Court records be sent back immediately to the concerned Trial Court for information and needful.