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2001 DIGILAW 274 (PAT)

Baleshwar Mahton v. State Of Bihar

2001-03-26

ANIL KUMAR SINHA

body2001
Judgment Anil Kumar Sinha, J. 1. This Revision application has been directed against the order dated 13.11.1998 passed in Cr. Appeal No. 125 of 1997 by the 3rd Additional Sessions Judge. Munger whereby he dismissed the appeal and affirmed the order of conviction and sentence recorded by the Assistant Sessions Judge, 1st in Sessions Case No. 434 of 1987. 2. The allegation against the petitioner in the FIR is that while the informants son reached near the house of one Devi Mahto this petitioner along with other accused surrounded him and this petitioner gave a garasa blow on the head of son causing injury on his shoulder. Thereafter, other accused, Gajadhar Mahto gave khanti blow to him. The informant raised alarm on which Dhuneshwar Mahton assaulted the informant with lathi and Bandhu Mahton gave a garasa blow on the back of the informant. The petitioner as well as other two accused, namely, Gajadhar Mahton and Bhuneshwar Mahton faced trial and the petitioner was convicted under Section 307/34 of the IPC and was sentenced to undergo R.I. for five years whereas remaining two accused persons were convicted under Section 323/34 of the IPC and were sentenced to undergo R.I. for six months each. The convicts preferred appeal against the order of conviction and sentence passed by the trial Court and their appeal was dismissed by order dated 13.11.1998. The present revision however subsists only in respect of the convict, Baleshwar Mahton, who has been convicted, under Section 307/34 of the IPC. 3. It is needless to say that there has been concurrent finding of facts by the trial Court as well as the appellate Court. I perused the judgment of both the Courts below and do not find any infirmity in the findings of fact by the Courts below, who have relied upon the evidence of PWs 5,6,7 and 8 on the point of the occurrence and on the basis of their unimpeachable evidence recorded the order of conviction against the petitioner and other accused of the case. 4. Learned counsel appearing for the petitioner submitted that both the Courts below fell in error in convicting the petitioner without the evidence of the doctor and the I.O. who were material witnesses in the case and in the absence of their examination the prosecution had not proved the charges under Section 307/34 of the IPC against the petitioner beyond all reasonable doubts. It was also submitted that the learned Court below wrongly admitted the carbon copy of the injury report in evidences and relied upon the same which was another illegality committed by them. 5. It is true that the doctor and the I.O. have not been examined in the case and it appears from the judgment itself that the learned trial Court took all possible steps to examine the doctor and the I.O. who could not be examined inspire of such steps taken by the trial Court. So far the examination of the I.O. is concerned, the law is well settled that the case of the prosecution shall not fall on that score unless it is shown that the defence got prejudiced due to the non-examination of the I.O. Judgments of both the Courts below do not show that any such prejudice was caused to the petitioner in his defence and the trial Court being aware of this situation was of the view that the non-examination of the I.O. is not fatal for the prosecution because the ocular evidence of the eyewitnesses are quite corroborative to each other. As such, it would appear that nothing has been elicited to show that any serious prejudice was caused to the petitioner in his defence, therefore, non-examination of the I.O. will not materially effect the prosecution. 6. So far the non-examination of the doctor is concerned the submission advanced on behalf of the petitioner that conviction cannot be based under Section 307 of the IPC without the examination of the doctor carries no force in it, in my humble view. If the ocular evidence is reliable and the Court is satisfied from the ocular evidence of the witnesses that the offence has been committed by the accused, there is no handicap or any impediment on the part of the Court to convict the accused relying upon the ocular evidences. In the present case also the trial Court has passed the order of conviction of the petitioner by relying upon the evidence of the informant and other eye- witness whose evidence were found to be corroborative to each other and they proved the occurrence in the manner alleged. The prosecution has no doubt proved the carbon copy of the injury report, Ext. 3 and 3/A but it appears that the injury reports were not made the basis of the conviction. The injury reports (Ext. The prosecution has no doubt proved the carbon copy of the injury report, Ext. 3 and 3/A but it appears that the injury reports were not made the basis of the conviction. The injury reports (Ext. 3 and 3/A) were admitted in evidence without objection. The Courts below have found that the carbon copies of injury reports support the ocular evidence of witnesses on the point of assault 7. Learned counsel appealing for the petitioner relied upon the decision reported in the case of Sarju Prasad V/s. The State of Bihar, 1965 SCC 843 wherein the Apex Court held that in order to bring home the charge under Section 307, IPC, the state of mind of accused to be deducted from surrounding circumstances and motive would be a relevant circumstances and held from the facts of the case that the evidence not sufficient to establish with certainty, existence of requisites intention or knowledge of the accused, the conviction of the appellate falls not under Section 307, IPC but under Section 324 of the IPC. The facts of the case under citation appears to be quite distinct from the facts of the present case. I have already stated above that there has been concurrent finding of facts by both the Courts below who found that the informant as well as the eye-witness made corroborative statements regarding manner of assault and it is alleged against the petitioner that he gave garasa blow on the head and shoulder of the informants son which clearly indicates his state of mind. It is also apparent from the evidence of the informant that in order to save her son, she covered him by falling upon her and she too was assaulted causing injuries on her back. Therefore, the evidence on record would indicate that the informant herself had intervened and at the cost of sustaining injuries protected her son and it was possible that if she would not intervened, the petitioner could have killed her son as the petitioner was repeating blow of garasa on the informants son. 8. In a case under Section 307, IPC. It is the intention which is to be inferred from the facts and circumstances of the case. 8. In a case under Section 307, IPC. It is the intention which is to be inferred from the facts and circumstances of the case. I find that the overt act committed by the petitioner was sufficient to show his intention that he wanted to do away with the life of the informants son and the Courts below rightly held the petitioner guilty for committing offence under Section 307 of the IPC. Learned counsel for the petitioner cited another decision reported in 1997 (6) SCC 171 in which it was held that without examination of the doctor, the post-mortem report is not admissible and the original post-mortem report must be proved by the prosecution. The said decision is hardly applicable in the facts and circumstances of the case because there is no question of proving the post mortem report in the present case. 9. Having considered the materials on record and the submission advanced by the learned counsel for the parties. I do not find any merit in this revision application which stands dismissed. However, it appears that the petitioner has remained in jail custody for a period of doubt two and half years. In the facts and circumstances of the case, I feel that it would be expedient for the ends of justice that the sentenced awarded to the petitioner is reduced to the period already undergone by him in jail custody. Accordingly, the sentence awarded to the petitioner is reduced to the extent of period undergone by him in jail custody. In the result, therefore, this revision is dismissed with modification in the sentence as indicated above and the petitioner is directed to be released from the custody if not wanted in any other case.