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2001 DIGILAW 818 (PAT)

Bhuktu Mahto @ Pagal Mahto v. State Of Bihar

2001-08-31

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. The sole appellant was convicted under Section 307 of the Indian Penal Code (hereinafter referred to as the Code) as well as under Section 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for seven years under the first count and five years under the second count, both the sentences having been ordered to run concurrently. 2. It would be relevant and convenient to reproduce, in brief, the prosecution case as unfolded in the first information report and the evidence of the prosecution witnesses. The informant Wakil Mahto (PW 9) at about 6.00 a.m. on 8.11.1987 was going to his field situated in Kantnagar Diara area within the jurisdiction of Barari Police Station in Katihar district. He enroute to his destination arrived at the field of one Fokal Singh. Just then he happened to see the appellant coming from the opposite direction with a pipe gun in his hand. The appellant reaching near the informant (PW 9) opened fire upon him from a distance of 5 yards as a result of which he sustained gun shot injuries on his left ear. The informant fell down. However, he detected that the appellant was again loading his gun and thinking that he would not now spare him he dared catch hold of the gun. There ensued scuffle between the informant and the appellant and in the process the latter bit the former in his chest. Mahendra Mahto (PW 1), Ram Pukar Mahto (PW ), Soti Mahto (PW 3) and Daroga Mahto hearing the sound of firing rushed to the scene of incident. In the meanwhile the appellant detecting the arrival of the villagers disengaged himself from PW 9 and leaving his gun started fleeing away. However, the informant and the villagers succeeded in apprehending the appellant after a chase. He along with the pipe gun and an empty cartridge and a live cartridge which had been in his possession was taken to the Darwaza of Lakhan Chand Mahto. 3. The Officer-in-Charge of Barari Police Station (PW 4), who also investigated into the case arrived at the Darwaza of Lakhan Chand Mahto. PW 4 forwarded the informant as well as the appellant who had also sustained injuries on account of assault inflicted on him by the villagers at the time of his apprehension to the Hospital for their examination and treatment. He recorded the fardbeyan (Ext. PW 4 forwarded the informant as well as the appellant who had also sustained injuries on account of assault inflicted on him by the villagers at the time of his apprehension to the Hospital for their examination and treatment. He recorded the fardbeyan (Ext. 2) of the informant (PW 9) and took charge of the appellant and the aforesaid arm and ammunitions and prepared production-cum-seizure list in presence of the witnesses. On the basis of the fardbeyan, referred to above, the formal FIR (Ext. 1) was drawn up and Barari P.S. Case No. 140/87 giving rise to the instant case was registered against the appellant under Section 307 of the Code besides some other sections of the Code as well as under Sections 25, 26 and 27 of the Arms Act. PW 4 after completing investigation submitted charge-sheet and finally the trial commenced after commitment. 4. The appellant did not enter into defence. However, from the trend of cross examination of the prosecution witnesses and the statement of the appellant recorded under Section 313, Cr PC the defence seemed to be that of total denial and false implication out of sheer enmity. 5. The learned Additional Sessions Judge, Katihar after taking the facts, circumstances and evidence brought on record, into account found and held the appellant guilty and he convicted and sentenced him. as stated above, acquitting him of the charges under Sections 25 and 26 of the Arms Act vide the impugned judgment and order. 6. Aggrieved by the judgment and order of conviction and sentence recorded against him, the appellant preferred the instant appeal from jail. During the pendency of the appeal, no body was coming forward to argue on behalf of the appellant and as such Miss Archana Meenakshi was appointed amicus curiae to assist the Court. 7. The impugned judgment and order of conviction and sentence has been assailed by contending that no independent eye witness came forward to substantiate the allegation levelled against the appellant; that the appellant ought not to have been convicted on the sole testimony of the victim informant and that there was no motive impelling the appellant to make an attempt on the life of the victim. 8. 8. The salient feature of the case is that the victim informant (PW 9) was alone going to his field and on way he was intercepted and fired upon by the appellant as a result of which he sustained injuries. The incident leading to the assault on the victim took place at the time and place when there was none else to witness the firing resorted to by the appellant. As stated above, certain witnesses arrived at the scene only after hearing the sound of firing and they later on apprehended the appellant after chasing him. The witnesses, who arrived at the place of occurrence saw the injuries on the person of the victim and subsequently they took the appellant along with the gun and cartridges referred to above to the Darwaza of Lakhan Chand Mahto where the police officer came and took charge of them. It was pointed out on behalf of the appellant that the conviction was based on the evidence of the solitary witness i.e. PW 9 who was the injured informant and in absence of any corroboration from independent witness, the appellant ought not to have been convicted. The contention is devoid of merit and force and the same cannot be accepted. It is to be mentioned at the very out set that the legislator has not insisted on particular number of witnesses for proving a fact. Section 134 of the Evidence Act says that no particular number of witnesses shall in any case be required for the proof of a fact. The evidence of solitary witness can prove a fact and conviction can be based even on uncorroborated testimony of sole witness provided it is above board. 9. The informant (PW 9) is the most competent witness in the sense that he is victim of assault and he is least likely to exculpate the real offender. He supported the prosecution case in its entirety by stating on oath that at about 6.00 a.m. on the date of occurrence he left his house for his field for cutting grass. When he reached near the field of one Fokal Singh, the appellant with a pipe gun in his hand came from the opposite direction and from a distance of 5 yards he shot at the informant PW 9 as a result of which he sustained injuries on the left ear. When he reached near the field of one Fokal Singh, the appellant with a pipe gun in his hand came from the opposite direction and from a distance of 5 yards he shot at the informant PW 9 as a result of which he sustained injuries on the left ear. He added, he thought that the appellant would not now spare him and as such he dared catch hold of him and in the process he was relieved of the pipe gun, an empty cartridge and a live cartridge and he started fleeing away but just then certain villagers such as PWs 1, 2 and 3 arrived at the scene and they apprehended him after a chase and thereafter the appellant and the said pipe gun and cartridges were taken to the door of Lakhan Chand Mahto where the I.O. (PW 4) arrived and took charge of the appellant and the arm and ammunition and prepared a seizure list in presence of the witnesses. The witness was cross examined at length but nothing material going to the root of the case was elicited in his cross examination. The suggestion was put to the witness that no such incident had taken place and he had falsely implicated the appellant out of sheer enmity. He denied the suggestion. Mere suggestion is no evidence. No material at all was brought on record to show that there ever existed animosity between the appellant and the informant. A careful analysis of the statement of the victim informant has created an impression that he is a reliable and truthful witness and his testimony suffers from no infirmity. So, there should be no hesitation in accepting his evidence without looking for any corroboration. However, in the instant case the victim was corroborated by PWs 1, 2 and 3 in all material particulars. They stated that hearing that sound of firing they rushed to the place of occurrence where they saw the victim informant injured. They also at the first glance saw the scuffle between the informant and the appellant, who subsequently disengaged himself and started fleeing away but he was apprehended after a chase by the aforesaid witnesses and the informant. They stated that hearing that sound of firing they rushed to the place of occurrence where they saw the victim informant injured. They also at the first glance saw the scuffle between the informant and the appellant, who subsequently disengaged himself and started fleeing away but he was apprehended after a chase by the aforesaid witnesses and the informant. It is also in the evidence of Pws 1, 2 and 3 that the appellant with the pipe gun and the arm and ammunition was taken to the Darwaza of Lakhan Chand Mahto where the police officer (PW 4) arrived and took charge of them and prepared production-cum-seizure list. Pws 1, 2 and 3 too were not inimical to the appellant. They were not even suggested about the existence of enmity between them and the appellant. Surprisingly enough PW 1 was put suggestion that there was land dispute between the appellant and the victim informant but no such suggestion was put to the victim. None of the prosecution witnesses, referred to above, appeared to have any motive for giving false evidence against the appellant. The sole eye witness (PW 9) stood well corroborated by the circumstantial evidence coming from the mouth of Pws 1, 2 and 3. 10. They eye-witness account of the incident leading to infliction of gun shot injuries on the victim informant was in consonance with medical evidence. Dr. Vijay Kumar Thakur (PW 10) examined the victim (PW 9) at about 8.00 p.m. on 8.11.1987 i.e., the date of occurrence. He found on his person (i) multiple lacerated wounds on anterior aspect and margin of the left ear of dimension of 1" x 1/4" x 1/8", 1/2" x 1/4" x 1/8" etc., and (ii) a few abrasions and teeth mark on the front of the chest right side 1/2" x 1/4" x 1/4". The Doctor found four teeth mark incisors. Injury No (i) was in the opinion in the Doctor caused by pellets, gun shot while injury No. (ii) was said to have been caused by teeth bite. Both the injuries were simple in nature caused within 24 hours of examination. The doctor submitted the injury report (Ext. 4); 11. F.V 7 Brahmadeo Mahto, PW 8 Jagdish Mahto and PW 11 Girish Chandra witnessed the production and seizure of the fire arm i.e. the pipe gun, an empty cartridge and a live cartridge, referred to above. Both the injuries were simple in nature caused within 24 hours of examination. The doctor submitted the injury report (Ext. 4); 11. F.V 7 Brahmadeo Mahto, PW 8 Jagdish Mahto and PW 11 Girish Chandra witnessed the production and seizure of the fire arm i.e. the pipe gun, an empty cartridge and a live cartridge, referred to above. They stated that the production-cum-seizure list was prepared by the Police Officer in their presence and they also put their signatures thereon. The signatures of PWs 7, 8 and 11 on the seizure list were respectively Exts. 3, 3/1 and 3/2. There is no reason why their evidence on the point of production and seizure of the arm and ammunition cannot be accepted. 12. PW 4 Bisheshwar Singh was the Officer-in-Charge of Barari Police Station and I.O. of the case. He stated that on 8.11.1987 he on the basis of rumour that a veteran criminal has been arrested, proceeded to the village of the informant. He reached the Darwaza of the aforesaid Lakhan Chand Mahto where the informant and other witnesses had brought the appellant and the arm and ammunition referred to above. He recorded the fardbeyan of the informant and took charge of the appellant and the pipe gun and the cartridges and prepared production-cum-seizure list. The production-cum-seizure list did not appear to have been showed to PW 4 at the time he was giving evidence and that is why it was not exhibited. However, as PW 4 affirmed that he had prepared the production-cum-seizure list there can be no doubt regarding production and seizure of arm and ammunition. PW 4 inspected the place of occurrence and gave a vivid description of the same. In his cross examination he stated that he found crops trampled at the place of occurrence. He admitted that the case diary was silent on the point of presence of blood at the place of occurrence. No seizure of blood from the place of occurrence or non-mention of presence of any blood mark there is itself cannot pave the ground for throwing out the entire prosecution case. 13. It is mentioned in the FIR that one Daroga Mahto had arrived at the scene of incident and he had assisted the informant in apprehending the appellant but he was not examined by the prosecution. 13. It is mentioned in the FIR that one Daroga Mahto had arrived at the scene of incident and he had assisted the informant in apprehending the appellant but he was not examined by the prosecution. On a careful and cautious scrutiny of the first information report and the evidence of the prosecution witnesses it would transpire that the foresaid Daroga Mahto had also rushed to the place of occurrence after hearing the sound of firing. He too was not an eye witness to infliction of gun shot injuries on the victim informant. As he was not an eye witness, his evidence tool would have been like that of PWs 1, 2 and 3. Daroga Mahto was not cited as a witness in the charge-sheet. It is just possible that as his name did not find mentioned in the list of witnesses in the charge-sheet, he escaped the notice of the prosecutor and he could not be examined but on account of his non-examination alone the prosecution case cannot be said to have been rendered suspicious. 14. Miss Archana Meenakshi, learned counsel appearing on behalf of the appellant as amicus curiae has contended that the evidence of the prosecution witnesses was discrepant and contradictory inasmuch as PWs 1 and 2 stated that the police officer (PW 4) came to the Darwaza of Lakhan Chand Mahto after he was informed of the incident but they were contradicted by PW 9, who stated that the police officer arrived there on his own accord. However, the I.O. (PW 4) set the matter at rest by stating that he had arrived at the Darwaza of Lakhan Chand Mahto on hearing the rumour that a veteran criminal had been arrested. In the circumstance, the submission put forward by the amicus curiae that in view of inconsistent and contradictory statements of the witnesses, the prosecution case was rendered doubtful cannot be accepted. Again it was contended that was mentioned in the first information report that the appellant along with arm and ammunition was taken first to the door of Soti Mahto (PW 3) and from there to the door of Lakhi Chand Mahto but none of the witnesses said so in their evidence rather they stated that the appellant was to taken to the door of Lakhan Chand Mahto. These are minor inconsistencies in the statements of the witnesses and they must be ignored. These are minor inconsistencies in the statements of the witnesses and they must be ignored. Certain minor discrepancy or contradiction is bound to occur in the evidence of natural and truthful witnesses for, a witness when making his way through the labyrinth of long cross-examination ventures to give some answer which is not necessarily true for fear that his evidence on the main incident may not be disbelieved. Whatever inconsistency or discrepancy cropped up in the evidence of the prosecution witnesses is not likely to adversely affect the edifice of the prosecution case. 15. The motive attributed behind the commission of crime was that a day prior to the incident, the Sub-Inspector of Police went to arrest the appellant and the police officer in the process had used the boat of the informant and as such the appellant thought that it was the informant who was instrumental in getting him arrested though, of course, on that day the appellant was not apprehended by the police. Being aggrieved by the conduct of the informant in making available the boat to the police officer, he had abused him and had also drowned his boat. PW 9 in his cross-examination-in-chief proved the motive. His statement in that regard was not challenged by the defence. The witness was not cross-examined on that point nor was he suggested that he had concocted the story and the police officer did not use his boat for apprehending the appellant. Under the circumstance the motive stands well proved though motive has no role to play in a criminal case where there is direct evidence on the point of commission of offence. 16. Learned counsel for the appellant placing reliance on the case of Vijay Prasad Singh and Ashok Kumar v. State of Delhi, reported in 2001 AIR SCW page 2244 and the case of Dukharan Singh v. State of Bihar, reported in 2001 (3) PLJR page 318 contended that the appellant could not be held guilty on the basis of the evidence of the solitary witness, who was the victim informant himself. The contention is non meritous. The case of Dukharan Singh (supra) was in respect of murder of the deceased, who was the wife of accused Dukharan Singh. The first information report was lodged by the brother of the deceased Yogendra Prasad Singh. The contention is non meritous. The case of Dukharan Singh (supra) was in respect of murder of the deceased, who was the wife of accused Dukharan Singh. The first information report was lodged by the brother of the deceased Yogendra Prasad Singh. He averred in the first information report that his maternal uncle Suresh Singh intimated him that the deceased had been kilied by her husband and his two associates. In all nine witnesses we re-examined in the case. PWs 1 and 8 were hearsay witnesses, PWs 2, 4 and 5 turned hostile, PW 3 was the informant who was also a hearsay witness, PW 6 was the I.O. while PW 7 was the Doctor and PW 9 local Mukhia, not an eye-witness. The accused was convicted and sentenced to undergo imprisonment for life under Section 302 of the Code by the trial Court on the basis of circumstantial evidence. The circumstances were that the deceased was the wife of the accused. The accused was destroying the property and with a view to save the property, the people of the village got the property of the accused transferred in the name of the deceased and the accused took a loan on rupees forty thousand and he was pressing hard the deceased to execute a registered sale-deed for re-payment of loan. The High Court held that those circumstances were not sufficient to say that the guilt against the accused had been proved for, the chain of circumstance was not complete to establish the guilt beyond reasonable doubt. Besides, there was no legal evidence on record to show that the accused was pressing hard the deceased for executing the sale-deed nor there was any evidence to show that the accused was seen in the village or the house rather the evidence had come to the effect that he was in dance party. 17. In the case of Vijay Prasad Singh and Ashok Kumar (supra) the deceased was shot dead at 9.00 p.m. on 9.9.1990 at the busy street by Ashok Kumar who had been on inimical terms with the deceased. Four persons were claimed to be eye witnesses. One of them was not examined while one another did not support the prosecution version and was declared hostile. The two eye- witnesses, who supported the case were, mother (PW 7) and the brother (PW 2) of the deceased. Four persons were claimed to be eye witnesses. One of them was not examined while one another did not support the prosecution version and was declared hostile. The two eye- witnesses, who supported the case were, mother (PW 7) and the brother (PW 2) of the deceased. The designated Court convicted Ashok Kumar under Section 302 of the Code and Vijay Prasad Singh was convicted under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act. The Hon ble Supreme Court found and held that the presence of the eye-witnesses at the time and place on occurrence of reasons putforth by the defence was not doubtful and non-examination of other persons who were present on the busy street where the incident took place was not relevant. The evidence of PWs 2 and 7 was accepted and conviction of Ashok Kumar under Section 302 of the Code was maintained and confirmed. Vijay Prasad Singhs conviction under Section 5 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 was set aside as there was material contradiction and discrepancy in the evidence of PW 20 who was the author of recovery and PW 7, the informant. 18. Obviously the facts and circumstances of two cases cited at the bar and relied upon by the appellant are entirely different from those of the case at hand and as such they are not relevant for and applicable to the present case nor can they come to the rescue of the appellant. 19. The prosecution case was that the pipe gun, the empty cartridge and one live cartridge were snatched away or they fell down from the hands of the appellant in course of scuffle between him and the informant and they were produced before the I.O. (PW 4) who received the same and prepared production-cum-seizure list. The aforesaid gun and the empty cartridge were produced in the Court and they are material Exts. I and II. However, the live cartridge could not be produced and exhibited but on that score alone the prosecution version cannot be doubted. 20. As the position stood, the appellant having armed himself with a gun attacked the victim informant while he alone was going to his field at the time of occurrence. He shot at the victim from a distance of about five yards. The shot was fired by the appellant hitting the ear of the victim. 20. As the position stood, the appellant having armed himself with a gun attacked the victim informant while he alone was going to his field at the time of occurrence. He shot at the victim from a distance of about five yards. The shot was fired by the appellant hitting the ear of the victim. Had the shot hit his head, it might have, in all probability, caused his death. Besides the nature of injury is not material for the offence under Section 307 of the Code. If the assailant had intention to kill the victim informant and in furtherance of such intention he opened fire upon him, he would have come under the mischief of Section 307 of the Code even if the shot fired by him had not hit and caused injury to the victim. In the case at hand it was sheer by chance that the shot fired by the appellant instead of hitting the vital part i.e. the head, hit the ear. Not only that the appellant was re-loading his gun for shooting at the victim informant but the latter taking risk caught hold of the gun and there ensued scuffle between them and in the meanwhile the witnesses arrived and thereafter the appellant started fleeing away and he was over powered and apprehended. The materials on record did establish the ingredients of Section 307 of the Code against the appellant. He would also be liable under Section 27 of the Arms Act inasmuch as he had a gun in his possession and, he used the same for unlawful purpose of shooting at the informant and causing gun shot injury to him. 21. In view of the facts, circumstances and evidence discussed and the observations made in the preceding paragraphs, it is to be held that the prosecution has brought home the charges levelled against the appellant beyond all reasonable doubt. The learned trial Court rightly found and held him guilty and convicted him. 22. The appellant was sentenced to undergo rigorous imprisonment for seven years and five years respectively. Under Section 307 of the Code and Section 27 of the Arms Act. It was contended that the incident took place in the year 1988 and the appellant had been running to Courts for over 13 years and he had thus already been put to a lot of harassment and mental agony. Under Section 307 of the Code and Section 27 of the Arms Act. It was contended that the incident took place in the year 1988 and the appellant had been running to Courts for over 13 years and he had thus already been put to a lot of harassment and mental agony. Another contention was that the appellant was the first offender and he came of a poor family and putting him behind the bar for pretty long period of time, would heavily tell upon the livelihood of his family. It was further contended that the appellant had also suffered rigor of jail life during his incarceration for about three years. In the sight of the aforesaid contentions, it was submitted that the appellant should now be let off with infliction of sentence of imprisonment for the period already undergone by him. 23. Regard beihg had to the facts and circumstances of the case and the nature of the offence and contention put forward on behalf of the appellant and also keeping in view the fact that the incident took place about 13 years ago and the appellant had already been put to tremendous harassment and mental agony he is sentenced to undergo imprisonment for the period already undergone by him. The aforesaid sentence shall perhaps meet the ends of justice. 24. With the modification in sentence, as indicated above, the appeal is dismissed. Let the appellant be directed to be discharged from the liability of his bail bond.