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2000 DIGILAW 332 (PAT)

Janardan Mahto @ Bodhu Mahto v. State Of Bihar

2000-03-01

R.N.PRASAD, S.N.PATHAK

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Judgment R.N.Prasad, J. 1. The sole appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has further been convicted tor the offence under Section 325 of the Indian Penal Code and sentenced to undergo rigorous imprisonment tor one year. He has also been convicted for the offence under Section 323 of the Indian Penal Code but no separate sentence has been awarded vide judgment and order dated 12.3.1987 passed by 9th Additional Sessions Judge, Munger in S.T. No. 64/81. 2. The case of the prosecution is that Ashok Prasad Mahto gave his fardbeyan that his father Misri Prasad Mahto had partitioned his property about two years ago. His brother Mitrajeet Mahto was cultivating the land of the share ot his father. His father, however, decided to cultivate the land himself and started cultivation due to which Janardhan Mahto @ Buddha Mahto, son of Mitrajeet Mahto, was aggrieved. On 16.10.1979 he ploughed his field and sowed Khesari crop. After sowing the crop, he along with his father was returning to his house at about 3 p.m. He was ahead of his father, Janardhan Mahto came from the house armed with lathi. Soon thereafter, his father raised alarm. On hearing alarm, he turned and saw that his father was lying on the ground and Janardhan Mahto, the appellant was assaulting him with lathi. He tried to save his father but he was also assaulted by the appellant with lathi. He raised alarm on which Parsidh Narain Singh, Bishnu Yadav, Chander Mahto, Kalo Yadav of village Amanatpur and Parmeshwar Yadav of village Hanumanganj came and saw the occurrence. They tried to catch Janardhan Mahto but he ran away. Some time, thereafter, Chaukidar Basant Paswan came and saw his father dead. The Chaukidar took him to the hospital. 3. On the aforesaid fardbeyan, Ext. 3, a formal First Information Report Ext. 4, was drawn. Investigation was taken up and on completion of investigation charge-sheet was submitted against the appellant. The Court took cognizance and committed the case to the Court of Sessions for trial. The trial Court convicted the appellant for the offences as indicated above. 4. The defence of the appellant was that he was innocent and had falsely been implicated in this case. No occurrence in the manner as alleged had taken place. The Court took cognizance and committed the case to the Court of Sessions for trial. The trial Court convicted the appellant for the offences as indicated above. 4. The defence of the appellant was that he was innocent and had falsely been implicated in this case. No occurrence in the manner as alleged had taken place. The mother of the informant is second wife of the deceased. The mother of the informant was married with another person and when the deceased married her the informant was in her lap. The informant is not the son of deceased. There was dispute between the informant and the deceased for share in the property. There had been an occurrence of marpit in the morning on the date of occurrence in which the deceased had assaulted the informant with danda. The informant himself and his associates assaulted the deceased with lathi and farsa at the relevant time of the occurrence. 5. The prosecution in support of its case examined 10 witnesses, out of whom P.Ws. 1 & 4 have been declared hostile. P.W. 3 has been tendered, P.Ws. 5 and 7 came at the place of occurrence and saw the dead body of the deceased. P.W. 8 is the doctor who held post-mortem over the dead body, P.W. 9 is the Investigating Officer and P.W. 10 is also a Doctor who examined the informant. P.Ws. 2 & 6 claim to be eye-witnesses to the occurrence. 6. It is manifest from the analysis of evidence of the witness that P.Ws. 2 & 6 are the only eye-witnesses to the occurrence. P.W. 2 stated in his evidence that at about 2 p.m. on hearing alarm, he went to the field of Prakash Mahto. He saw there that the appellant was assaulting the deceased Misri Mahto. He did not see injuries on the person of the informant, P.W. 6. He supported the prosecution case as an eye-witness to the occurrence. However, his attention was drawn to the statement made before the Investigating Officer, P.W. 9. P.W. 9 stated in his evidence that P.W. 2 did not say before him that he had seen the occurrence. Therefore, it is evident that at the initial stage before the police he did not claim to have seen the occurrence but in Court he has disposed as an eye-witness. Thus the evidence of witness loses its credibility. 7. P.W. 9 stated in his evidence that P.W. 2 did not say before him that he had seen the occurrence. Therefore, it is evident that at the initial stage before the police he did not claim to have seen the occurrence but in Court he has disposed as an eye-witness. Thus the evidence of witness loses its credibility. 7. P.W. 6 is the informant. He has supported the prosecution case. He stated in his evidence that while he, along with his father, was coming from the field, the appellant came from opposite direction and crossed him. He started assaulting his father with lathi causing injuries on his head. On his protest, the appellant assaulted him with lathi causing injury on his person. Chandra Mahto, P.W 2, Kalo Yadav, P.W. 3, Bishuni Yadav, P.W. 1 and Parsidh Narayan Singh, P.W. 4, came on hearing alarm. Chaukidar Basant Paswan, P.W. 7 came after some time and he took him to the hospital via Shaikhpur Police Station. His father died at the place of occurrence. In cross-examination, the witness admitted that his mother was second wife of the deceased. He denied the suggestion that her mother had married earlier another person. He also stated in his evidence about the partition of the property. He stated that he was ahead of us father while returning to his house. He also stated in his cross-examination that his father was assaulted with lathi by she appellant. 8. P.W. 8 is Doctor who held post-mortem over the dead body of Misri Mahto. He found 8 injuries on the person of the deceased out of which two were incised wounds. In cross-examination, the witness stated that incised wound is not possible by lathi blow. Therefore, the evidence of the Doctor, P.W. 8 creates doubt about the veracity of the evidence of P.W. 6. P.W. 6 categorically stated that his father was assaulted v ith lathi but the Doctor found two incisec injuries on the person of the deceased. There is nothing on the record to show as to how those incised injuries were inflicted on the person of the deceased. Moreover, the witness admitted in his evidence that he was also assaulted by the appellant. He was taken to the hospital and injury on his person was examined by the Doctor at 7.30 p.m.. There is nothing on the record to show as to how those incised injuries were inflicted on the person of the deceased. Moreover, the witness admitted in his evidence that he was also assaulted by the appellant. He was taken to the hospital and injury on his person was examined by the Doctor at 7.30 p.m.. The Doctor, P.W. 10, stated in his evidence that he examined the injuries on the person of the informant and found three injuries. Two injuries were lacerated wounds and one was swelling. He opined that injuries on the person of the informant were caused within 24 hours. In cross-examination, the Doctor categorically stated that injuries found on the person of the informant were above 12 hours. Therefore, the evidence of the Doctor does not support the case of the prosecution especially with regard to time of assault on the informant. The occurrence is alleged to have taken place at 3 p.m. P.W. 6 himself stated that his injury was examined by the Doctor at 7.30 p.m. but the Doctor stated that injuries were above 12 hours. The aforesaid piece of evidence in fact supports the defence case. Specific defence of the appellant is that the informant was assaulted by the deceased in the morning and on calculation, the Doctors evidence fits in with the case of the defence with regard to time of assault on the informant. 9. P.W. 6 himself stated in his evidence that he was taken to the hospital via Shaikpura Police Station by the Chaukidar, P.W. 7 but there is nothing on the record as to why the statement of P.W. 6 was not recorded at the Police Station. The Chaukidar, P.W. 7 stated in his evidence that he went to the place of occurrence and found the dead body lying there. He received information from one Rameshwar Paswan. He asked Rameshwar Paswan to watch the dead body and he himself went to the Police Station but nothing has been brought on the record to show as to what information was given by the Chaukidar to the Police Station. Moreover, it has been stated by P.W. 7 that Rameshwar Paswan did not disclose the name of the assailants. Therefore, it appears that initial version of the prosecution has not been brought on the record. 10. Moreover, it has been stated by P.W. 7 that Rameshwar Paswan did not disclose the name of the assailants. Therefore, it appears that initial version of the prosecution has not been brought on the record. 10. From the discussion of evidence of the witnesses, it has become apparent that P.W. 6 is the only eye-witness to the occurrence. Conviction can be sustained on the evidence of sole eye-witness if his evidence is found wholly trustworthy but from the discussion as made above, it appears that the evidence of the sole eye-witness is not wholly trustworthy and as such it is not safe to uphold the conviction of the appellant. 11. Thus on consideration, this appeal is allowed. The conviction and sentence of the appellant is hereby set aside. The appellant is discharged from the liability of the bail-bond. S.N.Pathak, J. 12 I agree.