Tulsi Mahto vs State Of Jharkhand

Rajesh Kumar, J

Vide order dated 02.12.2021, the present criminal appeal stands abated so far as appellant namely, Gango Mahto is concerned.

Now, the present appeal survives only with respect to four appellants, namely, Tulsi Mahto, Kali Prasad @ Kali Mahto, Basudeo Mahto @ Baso Mahto and Narain Mahto.

Heard Mr. Jyoti Prasad Sinha, learned counsel for the appellants and Mr. Manoj Kumar Mishra, learned A.P.P

The present appeal is directed against the Judgment of conviction and order of sentence dated 09.08.2004, passed by learned 6th Additional Sessions Judge, Hazaribagh, in Sessions Trial No.534 of 1993, arising out of Barkatha P.S. Case No.7 of 1993 (G.R. No.69 of 1993), whereby the appellants have been convicted for the offence under Sections 148 and 324/ 149 of the Indian Penal Code (IPC) and have been directed to undergo rigorous imprisonment for two years with fine of Rs.500/- (Five hundred only) each with default clause for the offence under Section 148 I.PC and two years rigorous imprisonment along with fine of Rs.500/- (Five hundred only) each for the offence under Sections 324/ 149 I.PC with default clause. All the sentences were directed to run concurrently.

The criminal law has been put into motion by lodging an F.I.R being Barkatha P.S. Case No.07 of 1993 against the appellants under Sections 147/ 324/ 307 I.PC. The F.I.R has been lodged on the fardbeyan of informant namely, Champa Devi (P.W.-3).

The brief facts of the case is that on 07.02.1993 at 7:00 A.M while the husband of the informant was pulling water from the well through Latha and at that time the accused persons namely, Tulsi mahto, Narain Mahto, Kali Mahto, Gango Mahto (Deceased) and Baso Mahto @ Basudeo Mahto, all residents & village Basaria, P.S. Barkatha, district Hazaribagh reached there i.e. at the well of the informant and they also started irrigating from the same well. On this, the husband of the informant (Basudeo Mahto son of Pokhan Mahto) protested from irrigating water i.e. fetching water from the well, and told to pull water later on. Thereafter, the accused persons started abusing the husband of the informant and then they assembled and rushed to their house and brought Lathi, Gandasa, Sword etc. Thereafter, the accused persons, named above, assaulted the husband, brother-in-law (Dewar), and daughter of the informant. It is further alleged that the accused persons brutally assaulted Basudeo Mahto, S/o Pokhan Mahto, i.e. husband of the informant with intention to kill him.

On the basis of the said fardbeyan, the police, after investigation, has submitted charge-sheet against the accused persons for the offence under Sections 147/ 324/ 307  I.P.C. Upon which cognizance has been taken and charge has been framed under the aforesaid Sections and the case has been committed to the court of Sessions to which the appellants have pleaded innocence and claimed to be tried.

To substantiate the prosecution story, altogether six witnesses have been examined. The doctor has been examined as court witness (C.W.-1).

P.W.-1, Puri Mahto, is a hearsay witness.

P.W.-2, Basudeo Mahto, is an injured witness and he has taken the name of only four persons and as per this witness, only four persons have participated in the crime.

P.W.-3, Champa Devi, is the informant of the case and also an injured witness. She has also taken the name of only four persons.

P.W.-4, Hemanti Devi, is the daughter of the informant and also an injured witness. She has also taken the name of only four persons.

P.W.-5, Rameshwar Mahto, is an independent witness and he has been declared hostile.

P.W.-6, Mahendra Kumar Pandey, is a clerk and has proved the formal F.I.R and put his signature on the injury report.

C.W.-1, Dr. B. Ram, has proved the injuries upon the injured persons, i.e., P.W.-2, P.W.-3 & P.W.-4. He has found all the injuries simple in nature, caused by sharp cutting weapon.

The trial Court, after evaluating the evidence of material available on record, has acquitted all the accused persons for the charges under Sections 307/ 149 IPC and convicted them only under Sections 148 and 324/ 149 I.P.C.

It has been submitted by the learned counsel for the appellants that false allegation has been made against the appellants and it is nothing but an attempt to rope the entire family members in the false case, which is evident from the F.I.R wherein the allegation has been made against five persons just to attract an offence Section 148 I.P.C.

It has further been submitted that while giving deposition before the court, all the witnesses have admitted that only four accused persons were present at the place of occurrence and as such conviction under Section 148 I.P.C is not sustainable. For conviction under Section 148 I.P.C, the composition of unlawful assembly should be there i.e. five and more persons should be present at the place of crime, but in the present case, as per the witnesses, only four accused persons were involved and as such there was no unlawful assembly. Thus, the conviction of the appellants under Section 148 IPC is bad in law.

Further, the conviction under Section 324 IPC is also bad in law since the appellants have been convicted on the strength of unlawful assembly, and there was no unlawful assembly, as five or more accused persons were not present at the place of occurrence.

On the other hand, though the learned A.P.P has supported the judgment of conviction, but could not establish the fact that five or more accused persons were involved in the commission of crime, as per the evidence of the witnesses.

Having heard learned counsel for the parties and from perusal of the record, it appears that since the very basic ingredients of unlawful assembly is missing and the entire conviction of the appellants is based upon the common object of unlawful assembly, the conviction of the appellants is not sustainable.

In view of above discussion, the judgment of conviction and order of sentence dated 09.08.2004, passed by learned 6th Additional Sessions Judge, Hazaribagh, in Sessions Trial No.534 of 1993, arising out of Barkatha P.S. Case No.7 of 1993 (G.R. No.69 of 1993) is, hereby, set aside.

In the result, the appeal stands allowed.

The appellants are on the bail, hence, they are discharged from the liability of bail bond.

Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.