BIRJU MANDAL Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The instant criminal appeal has been preferred against the judgment of conviction and order of sentence dtd. 30/1/2012 passed in Sessions Case No.208 of 2006, arising out of Mohanpur P.S. Case No. 23 of 1985, corresponding to G.R. Case No. 210 of 1985 and P.C.R. Case No.62 of 1985 passed by the learned 2nd Additional Sessions Judge, Deoghar whereby the appellant no.1 Birju Mandal was held guilty for the offence under Sec. 325 of the Indian Penal Code (hereinafter referred to as 'IPC') and sentenced with rigorous imprisonment of six months and a fine of Rs.5,000.00. In default of payment of fine, the additional rigorous imprisonment of 15 days was directed to undergo. Appellant no.2 Surju @ Surya Narayan Mandal was held guilty for the offence under Sec. 323 of IPC and was sentenced to undergo rigorous imprisonment for one month while the appellant no.3 Ram Chandra Mandal was held guilty for the offence under Sec. 307 of IPC and was sentenced with rigorous imprisonment of five years and a fine of Rs.7,000.00. In default of payment of fine further rigorous imprisonment of one month was directed to undergo.

(2.) The brief facts of the prosecution case leading to this criminal appeal are that as per GD entry (sanha) on the intervening night of 15th-16/4/1985 in the night at 1 O'clock accused Ram Chandra Mandal, Birju Mandal, Surju @ Surya Narayan Mandal and Shaheb Mandal came to the house of the informant Singheswar Mandal and hurled abuse to him and beated him and Phuleshwar Mandal caused injury on their body. Thereafter, the complaint was also given on behalf of informant Singheswar Mandal with these allegations that in the night of 15 th/16/4/1985 the complainant Singheswar Mandal found the stones were falling on his tiled roof and in the courtyard of his house. He raised alarm of chor-chor. Hearing the same, his brother Phuleshwar Mandal, Rewal Mandal attracted there. Villagers Govind Mandal, Dhanraj Mandal, Shailesh Singh, Sahdeo Mahra and Bishwanath Mandal also came there. The accused persons were on the roof of their double storeyed house adjoining to the house of complainant and they were peeping from the roof of double storeyed house. The complainant Singheswar Mandal asked the accused persons to come down from the roof of their house and to open the gate of their garden. Thereafter, all the accused persons got annoyed and came down from the roof hurling abuse at the door of the house of complainant. The accused Ram Chandra Mandal was armed with country made pistol. Rest of the accused Birju Mandal, Surju @ Surya Narayan Mandal and Shaheb Mandal were armed with lathi. The brother of informant namely, Phuleshwar Mandal asked the accused persons to desist of hurling abuse. At this accused Birju Mandal gave him a lathi blow at his right shoulder causing dislocation of the right shoulder joint and Shaheb Mandal gave him a lathi blow on his chest. The informant Singheswar Mandal and one villager Govind Mandal both came to rescue Phuleshwar Mandal then the accused Surju @ Surya Narayan Mandal gave a lathi blow on the left chest of Govind Mandal and accused Ram Chandra Mandal opened fire by country made pistol, pellets of which passed away causing injury on the left side of his face just below the left ear of the informant. Thereafter, all the accused persons fled away from there. In the morning 7:00 AM the complainant and all the injured persons went to the police station Mohanpur where ASI Madan Mohan Sharma was present. They narrated the story to him, but he did not record their fardbeyan rather threaten them to settle the matter and after repeated request of the complainant, the injury report of injured was prepared and their name and address were entered in the station diary. Firstly, on the oral information given by the informant with the police station Mohanpur Sanha No. 306 dtd. 16/4/1985 was registered. The informant and injured were sent to the hospital for their treatment. Thereafter, Mohanpur P.S. Case No. 23 of 1985 under Sec. 325, 323 read with 34 of IPC was registered against all the accused persons. Thereafter the complainant filed a complaint petition bearing P.C.R. No. 62 of 1985 in the court of learned Judicial Magistrate, 1st Class, Deoghar. By the order of the learned Magistrate, the investigation was conducted and the investigating officer after having concluded the investigation filed charge-sheet under Sec. 323/34, 325/34, 307/34 of IPC against the accused Birju Mandal, Surju @ Surya Narayan Mandal, Ram Chandra Mandal and Shaheb Mandal. Thereafter, vide order dtd. 22/9/1986 passed by the learned Judicial Magistrate before the commitment of P.C.R. Case No. 62 of 1985 was amalgamated with G.R. Case of Mohanpur P.S. Case No. 23 of 1985 and directed to proceed the case in G.R. Case staying the proceeding of the complaint bearing P.C.R. Case No. 62 of 1985.

(3.) Thereafter the learned Judicial Magistrate concerned framed the charge under Sec. 325 of IPC against one Shaheb Mandal, Sec. 323 of IPC against all the accused Birju Mandal, Surju @ Surya Narayan Mandal and Ram Chandra Mandal. During trial before the learned Magistrate on the petition of the prosecution the learned Judicial Magistrate, 1 st Class found the case against the accused persons under Sec. 307 of IPC and ordered to commit the case for trial to the court of sessions. Against the order passed by the learned Magistrate, the criminal revision was preferred bearing Criminal Revision No. 78 of 1997 which was also dismissed by the court of sessions. Thereafter, the case was committed to the court of the learned Sessions Judge for trial.