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2001 DIGILAW 507 (PAT)

Ravindra Mahto v. State Of Bihar

2001-07-02

SOMESHWAR NATH PATHAK

body2001
Judgment SOMESHWAR NATH PATHAK, J. 1. This appeal is directed against judgment and order of conviction and sentence, passed by the 4th Additional Sessions Judge. Begusarai in Sessions Trial No. 360 of 1996. The appellant Nos. 2 & 3 were convicted under Sections 323 & 341 of the IPC. They were however released on admonition for keeping peace and to be of good behavior. So far appellant Nos. 1 & 4 are concerned, they were convicted under Section 307 of the IPC and sentenced to undergo rigorous Imprisonment for seven years each. They were further convicted under Sections 323 & 341, IPC and sentenced to undergo rigorous imprisonment for one year and 15 days respectively. All the sentences were directed to run concurrently. 2. The case of the prosecution, as reported through the written report (Ext 1) was that on 15th November 1995, the informant Ramdeo Sharma was at his house and he learnt that Jugal Mahto was getting his palm tree peeled off in order to extract palm juice. The informant went there and protested. Then Ravindra Mahto (appellant No. 1), Aklu Choudhary (appellant No. 2), Jugal Mahto (appellant No. 3) and Suresh Choudhary (appellant No. 4)all fisted, slapped and kicked the informant. The informant was also assaulted with lathi as a result of which, the informant sustained injury as on his mouth, elbow etc. Subsequently, Ravindra Mahto (appellant No. 1) and Suresh Choudhary (appellant No. 4) used Darmas in order to throttle the informant to death. On alarm raised by the informant, Krishna Murari Thakur, Ganesh Sharma and Md. Aslam Ansari came and intervened and saved the informant. The appellants were charged under Section 307/34 of the IPC and under Section 323 & 341 of the IPC. They have taken a plea of false implication. 3. The prosecution examined, in all, ten witnesses PW 1Md. Aslam who was named in the written report, was declared hostile. PW 2 Ram Kishun Choudhary was not named in the FIR and he came to support the prosecution case and the alleged occurrence. PW 3 Gauri Shankar Choudhary was also not named in the written report and he also was examined to support the alleged report and he also was examined to support the alleged occurrence. PW 4 is Ganesh Sharma. This witness admitted at Paragraph 2 of his cross- examination that he is Bhagina of the informant. PW 3 Gauri Shankar Choudhary was also not named in the written report and he also was examined to support the alleged report and he also was examined to support the alleged occurrence. PW 4 is Ganesh Sharma. This witness admitted at Paragraph 2 of his cross- examination that he is Bhagina of the informant. PW 5 Shyam Sunder Choudhary was a hear-say witness he had found the informant lying injured at the PO PW 6 Ramdeo Sharma was the informant himself. PW 7 was the Doctor. PW 8 was a formal witness who brought on the record the formal FIR (Ext 3) PW 9 has been declared hostile. PW 10 is the IO. Thus, on the record, there were PWs 2, 3, 4, & 6 to support the prosecution case, so far the occurrence is concerned. Admittedly, PW 4 was Bhagina of the informant. PW 6 was the informant who supported his dase. So far PW 2 and 3 are concerned, it has been submitted that in their cross-examination these PWs admitted that when they reached the place of occurrence, the informant was lying unconscious. So even if the evidence of PWs 2 & 3 is ignored, PWs 6 & 4 of course, are interrelated, and support the prosecution case. The Doctor supports the injuries on the person of the informant and I shall discuss the nature of injuries later. The accused persons also examined the three witnesses to deny the alleged occurrence and the enmity. The circumstances of enmity between the parties can be good ground for the alleged occurrence. So the evidence of PWs 6 & 4 though they are interrelated, cannot be disbelieved simply because there is no other witness to support the alleged occurrence, right from the beginning to the end. The evidence of PWs 2, 3 and 5 will at least lend corroborative evidence to the extent that the informant was lying injured at the place of occurrence. So the entire occurrence, as alleged by the informant, cannot be discarded, as the trial Court has held on the basis of the evidence on the; record. 4. Now the question is as to what offence the appellants have committed. In this connection, the Doctors evidence is relevant to be considered. So the entire occurrence, as alleged by the informant, cannot be discarded, as the trial Court has held on the basis of the evidence on the; record. 4. Now the question is as to what offence the appellants have committed. In this connection, the Doctors evidence is relevant to be considered. The Doctor found one longitudinal bruise radish in colour 2" X 1/4" on the antro-lateral side of the neck on left said with complaint of difficulty in swallowing. Injury No. 2 was superficial abrasion on left elbow joint with skin attached. Injury No. 3 was an abrasion on upper leg 1" Xl/4" and the 4th injury was superficial abrasion on right shoulder joint. All the injuries were simple. Injury No. 1 was caused by friction with rope which may be Darmas. The Doctor said that this injury might cause death. 5. Except injury No. 1, all the injuries were simple. So the offence committed by the accused-appellants for these injuries would constitute an offence under Section 323 IPC. 6. The next question is whether any offence was committed under Section 307 IPC for which injury No. 1 is to be considered. This injury does not indicate that there was any harm upon the tachea. Darmas was fixed around the neck of the injured but there is no allegation that the neck was pressed with Darmas after encircling the neck with the Darmas rather the allegation was that after putting this Darmas upon the neck of the informant, he was pulled up. The victim was examined on 15th November 1995 at 11.00 A.M. and the alleged occurrence took place at 7.00 A.M. If at all the injury No. 1 fatal, the patient might have died, if at all, he was suffering from breathlessness as has been interpreted by the appellants lawyer by reading injury No. 1. The injury report does not show that the informant was given any treatment. I have already stated above that there was no injury upon the trachea. The description of injury No. 1 also does not show that ligature mark was found all around the neck, much less, in front of neck. So injury No. 1 was not such to as cause death to the informant in ordinary course of nature. So I am to hold that the alleged offence committed by the appellants will not fall under Section 307, IPC. So injury No. 1 was not such to as cause death to the informant in ordinary course of nature. So I am to hold that the alleged offence committed by the appellants will not fall under Section 307, IPC. In the result, the conviction of the appellant is sustained, only for the offence under Sections 323 & 341, IPC. Accused appellant No. 1 Ravindra Mahto and accused appellant No. 4 Suresh Choudhary shall stand acquitted for the offence under Section 307 IPC so far their conviction and sentence under Sections 323 & 341, IPC are concerned, that is also sustained. However, it transpires from the record that the appellant Nos. 1 and 4 had undergone incarceration before the trial Court for near about 15 days and after conviction for one month and 13 days (as submitted by the appellants lawyer). So the period of incarceration suffered by the appellants shall be treated as their period of sentence. 7. In the result, this appeal is dismissed with the observations made above, regarding sentence.