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2000 DIGILAW 436 (PAT)

State Of Bihar v. Mukul Mahto And Othersetc.

2000-03-16

A.K.PRASAD, P.K.DEB

body2000
Judgment A.K.Prasad, J. 1. This appeal under Sec. 378 of the Criminal Procedure Code by the State of Bihar is directed against the judgment dated 2nd February, 1990, in ST No. 37 of 1985 passed by Sri Piyus Xess. the then 1st Addl. Sessions Judge, Dhanbad, acquitting the respondents/accused of the charge under Secs. 302/34 of the Indian Penal Code and Secs. 307/34 of the Indian Penal Code. The informant Gulu Mahto has preferred Cr. Revision No. 61 of 1990 (R) against the said acquittal of all the opp. parties/accused in the above mentioned ST No. 37 of 1985. Both the appeal and the revision arise out of the common judgment and order which have been heard together and are being disposed of by this common judgment. 2. Briefly put, the prosecution case, as made out in the First Information Report, lodged by Gulu Mahto the informant (PW-10) with Baliapur police station on 13.8.1984 at 8 a.m. is as under: On 12.8.1984 at about 7.30 p.m. while the informant was sleeping in his house, his brother Bistu Mahto (the deceased) visited his house to borrow his bullock. As soon as Bistu Mahto came out of the house, after talk with the informant, all the five accused (the respondents/opp. parties herein) waylaid him and started to abuse him. The deceased retorted and exchanged abuses with them. Whereafter the accused-persons assaulted and wounded the deceased with Lathi and Tangi (axe). On alarm, the informant, including Golak Mahto (PW-3) Kirtan Mahto (not examined), Laxman Mahto (PW-8) and Jim Mahto (PW-7) rushed from their house to save the deceased, but the accused-persons variously assaulted them as well as the informant with Lathi and Kulhari. It is further stated that Jaleshwar Mahto, Asu Mahto, Suphan Modi (not examined) and some other villagers had also witnessed the occurrence. The further prosecution case is that injured (Bistu Mahto) who has sustained bleeding head injury and the other injured, namely, PWs 3, 7, 8 and Kirtan Mahto were carried with the help of the villagers and admitted to the State Dispensary, Baliapur for treatment where from the deceased and PW-3 (Golak Mahto) whose condition was serious were shifted to Sindri FCI hospital and after two days the deceased succtimbed to the wounds in the hospital which undergoing treatment. 3. On the basis of the First Information Report the case originally came to be instituted under Secs. 3. On the basis of the First Information Report the case originally came to be instituted under Secs. 341, 323, 324, 506, 34 of the Indian Penal Code. The investigation commenced, the police officer visited and inspected the place of occurrence. On 15.8.1984, Bistu Mahto died of the wound(s) in the hospital at Sindri, whereafter Secs. 302/34 of the Indian Penal Code was added in the case. The inquest over the dead body was held by the police officer at Sindri Police Station and the dead body was sent for post-mortem examination to the hospital. On completion of investigation, charge-sheet was laid in Court against all the accused-persons. The motive for the occurrence, as alleged, is that there was on going dispute and litigation for the landed property between the family of the informant and the accused Pahlan Mahto and Durga Mahto. 4. The main defence is of innocence, bare denial of the participation of the accused-respondents/opp. parties in the occurrence and/or false implication. The further defence is that, accused Durga Mahto has brought Baliapur P.S. Case No. 107 of 1984 under Secs. 341, 323 and 506/34 of the Indian Penal Code against the eleven persons including the informant the deceased Golak Mahto (PW-3), Kiran Mahto, Laxman Mahto (PW-8) and Jitu Mahto with the allegation that on 12.8.1984 at about 8 p.m. They went to the house of the accused-persons threw brick-bats, abusing them and when Pahlan Mahto (the accused) came out and protested, they apprehended him and then Durga Mahto came, out to rescue his brother, they were listed and slapped by the prosecution party and Navin Mahto (PW-4) dealt a blow with rod on the head of Pahlan Mahto and struck with iron-rod on the hand of Durga Mahto and when the female inmates came out, they too were abused and assaulted by the prosecution party (vide Exhibit A). 5. In the instant case, all the accused were charged under Secs. 302/34 of the Indian Penal Code for committing the murder of Bistu Mahto in furtherance of their common intention and under Secs. 307/34 of the Indian Penal Code for making attempt on the lives of the informant (Gulu Mahto), Laxman Mahto, Kirtan Mahto, Golak Mahto and Jitu Mahto. 6. In support of its case, the prosecution examined ten witnesses. Out of them PW-5 (Dhanesh Chandra Mahto) is a witness on the inquest report. The other PWs. 307/34 of the Indian Penal Code for making attempt on the lives of the informant (Gulu Mahto), Laxman Mahto, Kirtan Mahto, Golak Mahto and Jitu Mahto. 6. In support of its case, the prosecution examined ten witnesses. Out of them PW-5 (Dhanesh Chandra Mahto) is a witness on the inquest report. The other PWs. are PW-1 (Gulu Mahto), who is not the informant a hearsay witness PW-2 (Ranglal Mahto) a witness on the circumstance that he had seen the accused Pahlan Mahto and Anand Mahto, armed with Lathi and Tangi respectively feeling from the scene of the occurrence to their house PW-3 (Golak Mahto). an injured PW-4 (Navin Mahto) PW-6 (Ahalya Mahatain) the widow of the deceased PW-7 (Jitu Mahto) another injured PW-8 (Laxman Mahto) who claims to be the injured in the occurrence PW-9 (Dr. D.K. Dhiraj) who held post-mortem examination on the dead body of Bistu Mahto and PW-10 the informant (Gulu Mahto). The defence on the other hand examined no witness. It has been noticed above that the defence tendered xerox copy of the certified copy of the First Information Report in Baliapur PS Case No. 107 of 1984, which has been marked Exhibit A on waiver of formal proof. 7. The trial Court on consideration of the evidence and materials on record held that the prosecution has failed to prove the charge under Secs. 302/34 and 307/34 of the Indian Penal Code against the accused-respondents opp, parties beyond shadow of reasonable doubt and accordingly acquitted them in the case. The main reasons given by the trial Court for the acquittal of the accused are as under: (i) PWs 1 and 2 are hear-say witnesses. (ii) PW-4 Navin Chandra Mahto and PW-6 (Abalya Mahatain). the widow of the deceased, who claimed to be the eye-witnesses to the occurrence are not cited in the First Information Report and the informant (PW-10) has admitted that at the time of the occurrence none of the villagers had arrived while PW-8 (Laxman Mahto). the injured has stated that when he reached the place of occurrence none was present except accused-persons and the prosecution party and this falsifies the claim of PWs 4 and 6 that they had witnessed the actual assault (iii) Kirtan Mahto. the injured has not been examined and no explanation for it has been furnished by the prosecution which gives rise to an adverse inference against the prosecution. the injured has not been examined and no explanation for it has been furnished by the prosecution which gives rise to an adverse inference against the prosecution. (iv) PWs 3, 7, 8 and 10 have claimed to have reached the place of occurrence on hulla of the deceased (Bistu Mahto) and found that Bistu Mahto was assaulted with Lathi and axe and was injured by the accused-persons and when they tried to rescue him they too were assaulted by the accused-persons, but the doctor has not been examined to corroborate that PWs 3, 7, 8 and 10 had suffered injures in the incident. (v) The informant (PW-10) has stated in his evidence that he reached the place of occurrence on the alarm of the deceased (Bistu Mahto), which contradicts his version regarding the manner of occurrence set out in the fardbeyan. (vi) The informant (PW-10) has staled in his cross-examination that when reached the place of occurrence, there was none except Govind Mahto, not examined,. Ahalya Mahatain (PW-6), Tara Chand Mahto (not examined) and the accused-persons and this falsifies the claim of PWs 5, 7 and 8 that they had witnessed the occurrence. (vii) All the eye-witnesses are admittedly the near relatives of the informant as well as the deceased. The doctor (PW-9) who held autopsy on the dead body of Bistu Mahto did not find any incised or cut wound on the person of the deceased, although it is alleged that he was assaulted with axe as well and the doctor who had earlier examined the deceased has not been produced for evidence by the prosecution to prove the wounds found on his person. (viii) (PW-7) has stated in his evidence at paragraph 10 that blood was fallen on the spot and clothes were stained with blood, which do not appear to have been seized by the police, nor produced in Court. (ix) The Investigating Officer has not been examined in the case which has caused prejudice to the defence, inasmuch as attention of the PWs was drawn to the previous statement, which could not be proved. (x) It is admitted that the accused Durga Mahto has brought Baliapur PS Case No. 107 of 1984 against the information some PWs and others and in the circumstances of the case, the defence that the accused have been falsely implicated to counter-blast it cannot be ruled out. 8. (x) It is admitted that the accused Durga Mahto has brought Baliapur PS Case No. 107 of 1984 against the information some PWs and others and in the circumstances of the case, the defence that the accused have been falsely implicated to counter-blast it cannot be ruled out. 8. While supporting the appeal, Mrs. Sheela Prasad, learned APP appearing on behalf of the State, has urged that the trial Court did not discovers the evidence of the material witnesses, namely, the injured (PWs 3, 7 and 8) in right perspective there was overwhelming evidence that they had suffered wounds in the incident and in absence of examination of the treating doctor their evidence, which was otherwise clear, cogent and reliable could not be discarded; that they have clearly stated that the accused were present on the spot armed, where the deceased lay injured and these who arrived soon on the spot to rescue the deceased were subjected to assault by them; that the identity of the place of occurrence is not in dispute; that failure of the Investigating Officer to seize the blood-stained earth or clothes does not materially affect the prosecution case; that the injury on the deceased (Bistu Mahto) was proved by the doctor, who held the post-mortem examination; that the PWs have denied that Pahlan Mahto or Durga Mahto or their family members had suffered any wound on the hands of the prosecution party; that the defence led no evidence in support of its coixnter-case and the finding of the trial Court that the defence version was probable is unjustified and, in the facts and circumstances of the case, the order of acquittal recorded by the trial Court merits to be reversed and the accused-respondents are liable for the offences charged with, which have been proved beyond shadow of reasonable doubt. Further, it has been urged that the trial Court has emphasised the minor contradictions in the evidence of the PWs which are natural. Mr. P.S. Dayal, learned Sr. Counsel appearing on behalf of the petitioner-revisionist in substance adopted the argument advanced by the learned APP in the appeal. 9. Mr. K.C. Mahto learned Counsel appearing on behalf of the accused-respondents/opp. parties on the other hand, has supported the impugned judgment of acquittal. Mr. P.S. Dayal, learned Sr. Counsel appearing on behalf of the petitioner-revisionist in substance adopted the argument advanced by the learned APP in the appeal. 9. Mr. K.C. Mahto learned Counsel appearing on behalf of the accused-respondents/opp. parties on the other hand, has supported the impugned judgment of acquittal. He has asserted that the eye-witnesses are related to the deceased and highly interested, their presence at the scene of occurrence is doubtful, the informant (PW-10) has made exaggeration in his evidence, there is no medical evidence to corroborate the fact that PWs 3, 7 and 8 were injured in the incident and no credence can be attached to the testimony of PWs 4 and 6, who are not cited witnesses in the First Information Report. 10. Now, the point which falls for consideration is whether the impugned judgment of acquittal is liable to be interfered with in the appeal. 11. It is well settled that the High Court has full powers while hearing an appeal against the order of acquittal to re-appreciate the evidence and to come to a conclusion whether the order of acquittal passed by the Sessions Judge was per se bad or not, if however, on the evidence two views are reasonably possible one supporting acquittal and the other indicating conviction then the High Court would not be justified in interfering with the order of acquittal merely because it takes the view that it would have taken the other view, sitting as the trial Court. But, on examining the reasons advanced by the trial Court as well as on re-predating the evidence on record, if the High Court is satisfied that the reasons given by the trial Court for acquittal are totally unsustainable and the appreciating of evidence made by the trial Court is per se bad, then there would be no limitation on the power of the High Court to set aside the order of acquittal ref : 1998 SCC (Cri) 835 : Banwari Ram and Ors. V/s. Store of U.P. Further, where the view taken by the trial Court is totally unreasonable and contrary to the evidence on record, interference can be made in appeal against acquittal Ref: 1998 SCC (Cri) 578 : Bikram Singh V/s. Raj Singh. V/s. Store of U.P. Further, where the view taken by the trial Court is totally unreasonable and contrary to the evidence on record, interference can be made in appeal against acquittal Ref: 1998 SCC (Cri) 578 : Bikram Singh V/s. Raj Singh. Keeping this cardinal principle in mind, one may now proceed to re-appreciate the evidence laid by the prosecution at the trial, analyse and examine the reasons assigned by the trial Court acquitting the accused-persons and to judge whether the finding is reasonable and justified by the materials on record. 12. It is the admitted fact that there was a land dispute and litigation between the parties over the landed-property. It is not in dispute that by night fall on 12.8.1984 there was an occurrence and the identity of the place of occurrence, which is statute at village Baghmara tola Modidih, which is at a distance of 5 kms. from Baliapur P.S., is not in controversy. The trial Court has rightly held that PW-1 is a hearsay witness. It is true that PW-2 is also not an eye-witness to the actual assault on the deceased or any victim. 13. The prosecution case on the participation of the accused respondent/opp. parties hinges primarily on the testimony of PWs. 3, 4, 6, 7, 8, 9 and 10 the informant, who are the close relatives of the deceased. It is well settled that the testimony of a witness on the ground of relationship alone cannot be out right rejected. It has to be scrutinized with care and caution. 14. PW-4 (Navin Chandra Mahto) has testified to the effect that on alarm, he went to the passage in front of the house of the informant (PW-10) and saw that all the five accused were present and surrounded the deceased (Bistu Mahto). Accused Pahlan Mahto dealt a Lathi blow to him, while accused Anand Mahto struck a latin blow on his head and when on alarm, PWs 3, 7, 8 and Kirtan Mahto came, they too were variously assaulted by the accused-persons and when they fled, the villagers arrived. PW-4 is not himself an injured in the case. He is not a cited witness in the First Information Report. He admits that his statement was recorded by the police 20/25 days after the occurrence. So, the trial Court, in the circumstances, rightly discarded the testimony of this witness on the actual assault/occurrence. 15. PW-4 is not himself an injured in the case. He is not a cited witness in the First Information Report. He admits that his statement was recorded by the police 20/25 days after the occurrence. So, the trial Court, in the circumstances, rightly discarded the testimony of this witness on the actual assault/occurrence. 15. PW-6 (Ahalya Mahatain) the widow of the deceased too has testified to the effect that on hulla she went to the spot, witnessed the assault on her deceased husband by accused Anand Mahto on his head with Tangi. while Pahlan Mahto gave a Lathi blow to him and she was further stated to have seen the assault on the other victims by the accused-persons. She too is not cited as an eye-witness in the First Information Report. Her statement was recorded 20/25 days after the occurrence by the police. So, the trial Court correctly did not place reliance on her testimony on the participation/involvement of the accused in the actual assault on the deceased and other injured in the incident. 16. PW-10 has testified to the effect in the chief-examination that on 12.8.1984 at about 7 p.m. while he was at his house his brother (Bistu Mahto) visited him and requested to lend bullock and went out of the house into the passage where he was waylaid and abused by all the five accused. Pahlan Mahto, the accused was armed with lathi, while others wielded Tangi, Pahlam Mahto dealt a lathi blow to him while accused Anand Mahto struck with Tangi on his head. When Golak Mahto came to rescue the deceased, accused Durga Mahto death a Tangi blow on his head and also to Laxman Mahto (PW-8), who arrived soon thereafter and when Jitu Mahto (PW-7) protested accused Durga Mahto struck with Tangi on his hand and that this witness too had suffered slight wound with lathi at the hands of Pahlan Mahto. In the First Information Report, he (PW-10) made omnibus allegation of assault against all the five accused with regard to the deceased and all other victims. He did not state therein as to who had assaulted whom and with what weapon. Thus, PW-10 has made exaggerated statement in his evidence by describing specific overt-acts to the accused Pahlan Mahto, Anand Mahto and Durga Mahto with regard to the assault on the deceased and other victims. He did not state therein as to who had assaulted whom and with what weapon. Thus, PW-10 has made exaggerated statement in his evidence by describing specific overt-acts to the accused Pahlan Mahto, Anand Mahto and Durga Mahto with regard to the assault on the deceased and other victims. So, on the basis of his exaggerated statement in evidence, no conviction of the accused persons can be founded unless it is corroborated by other reliable evidence. 17. Now, we come to the evidence of PWs 3, 7 and 8. They have testified to the effect that on the fateful evening they were at their house (which is acommon house) and on alarm, around 7.30 p.m., they went to the broad passage (Kuli) which is the place of occurrence, in front of the house of the informant (PW-10) and they saw all the five accused of whom accused Pahlan Mahto was armed with lathi and the other four accused wielded Tangis, present on the spot. PW-3 has further stated that he saw Bistu Mahto, the deceased lying in pool of blood and when he attempted to lift the injured accused Durga Mahto dealt a Tangi blow on his head and he fell unconscious and he regained his consciousness in the hospital at Sincere. It has come in his evidence that the deceased lived with him and PWs 7 and 8 in the common house. It has been elicited in his cross-examination that the deceased had bleeding wound on his head. PW-7 (Jitu Mahto) has stated in his evidence that when he went to the place of occurrence, he saw all the five accused present there accused Pahlan Mahto was armed with lathi, while the other four accused had Tangis and they had surrounded the deceased Bistu Mahto and were uttering to assault him, whereupon accused Pahlan Mahto struck him with lathi while accused Anand Mahto dealt a blow with Tangi on his head and when Kistu Mahto (which is the alias name of PW-3 Golak Mahto) arrived, accused Durga Mahto dealt a Tangi blow to him on head, as a result of which he fell on the ground. He has further stated that when Laxman Mahto (PW-8) came, accused Pahlan Mahto and Govind Mahto assaulted him and when this witness protested, accused Durga Mahto dealt Tangi blow to him on his right hand, while accused Govind Mahto lifted and threw him on the ground and he became unconscious. PW-8 has testified to the effect that when he reached the spot, on hulla, he found all the five accused present one of them Pahlan Mahto had a lathi while the other four accused were armed with Tangi and Bistu Mahto (the deceased) and Kistu Mahto (PW-3) were living in pool of blood and accused Durga Mahto dealt a Tangi blow to him on his head, causing bleeding wound and he fell on the ground. A contradiction has been taken by the defence by drawing the attention of PW-7 to the earlier statement before the police in which he had not specifically stated that accused Pahlan Mahto had assaulted the deceased with lathi on his body or that accused Anand Mahto had dealt a Tangi blow to the deceased on his dead. This part of his evidence naming the accused Pahlan Mahto and Anand Mahto as the assailants of he deceased is an exaggeration and this part of his evidence has to be excluded. But, the fact remains that PWs 3, 7 and 8 in spite of searching cross-examination are consistent in their evidence regarding presence of all the accused on the post variously armed where the deceased was lying injured and they suffered wound by Tangi at the hands of accused Durga Mahto. It is true that it has been elicited in cross-examination of PW-8 that when hulla he reached the spot, there was no injured present on the spot, other than the members of both the parites. This statement signifies that the accused-persons and the members of the prosecution part, including the PWs were present on the spot at that time. No contradiction has been taken by the defence vis-a-vis their evidence in Court and their statement before police regarding the presence and participation of the accused-persons in the occurrence. It is true that PW-7 (Jitu Mahto) has state that accused Govind Mahto had also assaulted PW-8. but PW-8 does not stated about it. No contradiction has been taken by the defence vis-a-vis their evidence in Court and their statement before police regarding the presence and participation of the accused-persons in the occurrence. It is true that PW-7 (Jitu Mahto) has state that accused Govind Mahto had also assaulted PW-8. but PW-8 does not stated about it. This is a minor contradiction, which is of not much relevance because such normal errors of observation are natural when one is himself injured and assault on different persons is made in quick succession. PW-2 has stated that when soon after the occurrence he reached the spot, he found the deceased PWs 3, 7 and 8 lying wounded on the spot PW-6 too has stated that they had wounds on their persons PW-1 has also stated that when after the occurrence he went to the spot, he found that Bistu Mahto and others were lying injured. It has come in the evidence of the informant PWs 10, 4, 7 and 8 that they were taken to Baliapur hospital for treatment and next morning PW-3 and injured Bistu Mahto were shifted to FCI Hospital, Sindri where the deceased succumbed to the wound(s) on 15.4.1984. No suggestion has been given by the defence to PWs 3, 7 and 8 that they have suffered no wound/injury in the incident. It is true that the evidence PWs 7 and 10 have stated that Kirtan Mahto was also injured by the accused in the incident, who has not been examined in the case. Non-examination of an injured out of number of victims would not render the prosecution case as suspect. It is true that the doctor who had examined PWs 3, 7 and 8 has not been examined in the case. It is well settled that positive evidence in a case is that of the eye-witness and the value of the medical evidence is only corroborative. In the facts and circumstances of the case, the only reasonable conclusion that can be drawn is that there is clear cogent and reliable evidence that Bistu Mahto the deceased PWs 3. 7 and 8 had sustained wounds in the incident and PWs 7, 8 and 3 are competent witnesses. The presence of PWs 3, 7 and 8 on the spot at the time of the occurrence cannot be doubted. 7 and 8 had sustained wounds in the incident and PWs 7, 8 and 3 are competent witnesses. The presence of PWs 3, 7 and 8 on the spot at the time of the occurrence cannot be doubted. The evidence of PWs on the presence and participation of the accused in the occurrence is reliable and given the ring of truth. The victims of assault would not spare the real culprits and falsely implicate the accused-persons. Their evidence clearly shows that the deceased was lying injured on the spot, where the accused-persons were present and they assaulted PWs 3, 7 and 8 when they ran to rescue him. It has come in evidence that the common house of the deceased and PWs 6, 7 and 8 is barely at a distance of about 100 yards from the seen of occurrence and it is quite natural that on hearing the alarm they had rushed to the place of occurrence. A suggestion has been given by the defence to PW-8 that Bistu Mahto had sustained wound at the hands of the prosecution party. This has been denied. It is significant to note that in the First Information Report of Baliapur PS Case No. 107 of 1984 there is no whisper about it. 18. One may now come to the evidence of the doctor (PW-9) who held post-mortem examination on the dead body of the Bistu Mahto on 16.9.1984 at 11 a.m. He has testified to the effect that he found the following ante-mortem wounds on the person of the deceased: 1. Abrasion 1/4" × 1/4", 2" below the left nipple. 2. Surgical stitched wound measuring 3" with 9 stitches over his left side of front of the head, placed 2" above the inner end of the left eye-brow. On dissection, haematoma was seen under the scalp in the surrounding area with depressed fracture wound on the left frontal bone, 2" x 3/4" and on opening of the skull 1/4" thick extra-dural and 1/2" thick sub-dural haematoma was found on the left frontal, temporal and partietal areas. The left anterior cranial fossa was also found fracture. According to him, the death resulted from coma due to craniocerebral injuries and though the external injury had been surgically interfered with, the skull and brain suggested hard and blunt force impact to be causative agent. The left anterior cranial fossa was also found fracture. According to him, the death resulted from coma due to craniocerebral injuries and though the external injury had been surgically interfered with, the skull and brain suggested hard and blunt force impact to be causative agent. He has opined that the time elapsed since the death was 18 to 36 hours of the post-mortem examination. Exhibit 2 is the post-mortem report in his pen. There is no clear and reliable evidence about the weapon used for causing the fatal wound(s). Axes which an generally used in villages for cutting the trees and branches are not so sharp, like sword or knife and when such weapons are used on head they are likely to cause lacerated injuries also, i.e. it may have hard and blunt force (Ref : Ch. Modhusudan Reddy V/s. The State of A.P. 1994 SCC (Cri) 275. The reasoning of the trial Court that as no incised wound was found by the doctor (PW-9), it was a circumstance which cast a doubt on the truthfulness of the prosecution case, is not sound. The medical evidence establishes beyond doubt that the death of the decease was homicidal. The factum that the deceased met with homicidal death has not beerl disputed by the defence. Hence, the omission to examine the doctor, who had initially examined the deceased in course of treatment ceases to have any bearing in the matter. 19. The defence has examined no witness in support of its version of the occurrence. The prosecution witnesses have denied the defence suggestion that Pahlan Mahto, Durga Mahto or their family members had suffered any wound. No medical evidence, apart from any oral evidence, has been tendered by the defence in support of its version. So, on the basis of mere tiling of the First Information Report of the case brought by accused Durga Mahto, as aforementioned, it cannot be inferred, in the facts and circumstances of the case, that the defence version is probable. 20. The identity of the. place of occurrence stands admitted in the case. The benefit on account of non-examination of the Investigating Officer, while appreciating the evidence of the PWs has already been given to the defence. The defence has failed to show that any serious prejudice has been caused to it due to non-examination of the Investigating Officer. 20. The identity of the. place of occurrence stands admitted in the case. The benefit on account of non-examination of the Investigating Officer, while appreciating the evidence of the PWs has already been given to the defence. The defence has failed to show that any serious prejudice has been caused to it due to non-examination of the Investigating Officer. In the facts and circumstances of the case, in my considered view, non-examination of the Investigating Officer, is not an infirmity in the prosecution case. The evidence of the. injured eye-witnesses has been found to be clear cogent and trust worthy. So the failure to affect seizure of blood stained articles/clothes is not of any significance in the case. 21. Now, it has to be considered as to what offence(s) has been committed by the accused-persons. It has been noticed above that there is no clear evidence as to who among the accused and with what weapon had actually assaulted the deceased. The doctor had found two ante-mortem wounds on the person of the deceased. In the facts and circumstances of the case, all the live accused-persons shared the common intention to cause grievous injury to the deceased. Hence, they are liable for the offence under Secs. 326/34 of the Indian Penal Code for causing death of Bistu Mahto. There is clear and cogent evidence that the accused Durga Mahto had assaulted PW-3 (Golak Mahto), PW-7 (Jitu Mahto) and PW-8 (Laxman Mahto) with Tangi. There is no medical evidence on record to suggest that grievous injuries were sustained by them. Hence, he is liable for the offence under Sec. 324 of the Indian Penal Code for voluntarily causing hurt to PWs 3, 7 and 8. This is the only reasonable view which can be taken on the appreciation of the evidence on record in its true perspective. The view taken-by the trial Court is totally un-reasonable and contrary to the evidence on record. Hence, the impugned judgment of the trial Court, acquitting the accused-respondents cannot be sustained and is reversed. In the circumstances, it is not necessary to give any finding in the revision application and now it is a surplusage. 22. In the result, the Government appeal is allowed. The imptigned order of acquittal of the accused/respondents is set aside. All the five accused/respondents are convicted under Secs. In the circumstances, it is not necessary to give any finding in the revision application and now it is a surplusage. 22. In the result, the Government appeal is allowed. The imptigned order of acquittal of the accused/respondents is set aside. All the five accused/respondents are convicted under Secs. 326/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years thereunder. Further, the accused/respondent (Durga Mahto) is convicted under Sec. 324 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for one year. However, the sentences awarded to accused/respondent (Durga Mahto) shall non concurrently. If, on verification the trial Court finds that the accused/respondents are still required to serve out the period of sentence imposed on them by this Court, it shall take all steps for their apprehension forthwith for the purpose, P.K. Deb, J. I agree.