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2002 DIGILAW 597 (JHR)

KALI MATH MAHTO v. STATE OF BIHAR

2002-05-10

VISHNUDEO NARAYAN

body2002
Judgment : VISHNUDEO NARAYAN, J. ( 1 ) THIS appeal has been directed by appellant Kali Nath Mahto against the impugned judgment and order dated 3. 4. 1996 passed by Smt. Shakuntala Sinha. A. J. C. , Khunti in S. T. No. 381/85/t. R. No. 92/93 whereby the appellant was found guilty for the offence punishable under Section 307. IPC and he was convicted and sentenced to undergo R. I. for 5 years. ( 2 ) THE prosecution case has arisen on the basis of the written report of informant Gobardhan Mahto (PW 4) before the Arid P. S. Ranchi on 27. 9. 1984 regarding the occurrence which is said to have taken place on 26. 9. 1984 at 7. 30 p. m. in village Joinhatu P. S. Arki. Khunti. Ranchi. The prosecution case in brief is that the informant had gone to the house of one Satrughan Machuwa at his instance to see the log of woods and while he was returning from there and he reached near the well in the middle of the village the appellant all of a sudden came there at about 7. 30 p. m. and gave a dagger blow on the abdomen of the informant as a result of which the informant fell down. Thereafter the appellant gave another blow by dagger on the left arm of the informant. It is alleged that the informant caught the dagger and snatched the same and raised alarms calling Ranjit Singh Munda to save him as the appellant was assaulting him by dagger. The prosecution case further is that on arrival of Ranjit Singh Munda the appellant fled away and informant was brought at the house of Ranjit Singh Munda by him where a large number of persons assembled and thet injury of the informant was bandaged by PHW of Jofohatu Sub Health Centre. ( 3 ) THE appellant has pleaded not guilty tot the charge leveled against him and claimed himself to be innocent and has committed no offence and that he has been falsely implicated out of enmity which is existing. ( 4 ) THE prosecution has examined eight witnesses in all to substantiate its case. PW 4 is the informant. PW 7 is the Dr. Ajit Tirkey. PW 8 is a formal witness who has proved the fardbeyan (Ext. 6 ). Ext 2 is the injury report furnished by PW 7. ( 4 ) THE prosecution has examined eight witnesses in all to substantiate its case. PW 4 is the informant. PW 7 is the Dr. Ajit Tirkey. PW 8 is a formal witness who has proved the fardbeyan (Ext. 6 ). Ext 2 is the injury report furnished by PW 7. who has examined the injury on the person of informant. PW5. 1, 2, 3 and 6 are not the ocular witnesses of the occurrence in question of PW 5 has been tendered. It is relevant to mention here that Ranjit Singh Munda had died during the pendency of the case and he could not take oath in support of the prosecution case. The 1. 0. has also not been examined in this case. ( 5 ) IN view of the oral and documentary evidence on the record the learned Court below found the appellant guilty under Section 307. IPC and convicted and sentenced him as stated above. ( 6 ) NOW the question for adjudication in this case is as to whether there is any illegality in the impugned judgment and order requiring an interference therein. ( 7 ) IT has been submitted by the learned counsel for the appellant (sic) and reliable evidence on the record to substantiate the prosecution case as alleged in the written report of the informant and the evidence of PW 7 read with Ext. 2 totally falsifies the manner of occurrence of the prosecution case. It has also been submitted that even the testimony of PW 4. the informant is at variance with the manner of occurrence as alleged and there is no corroborative evidence at all on the record to support the prosecution case. It has further been contended that according to prosecution case the informant is said to have sustained injury on his abdomen and thereafter on his right arm but PW 7, the medical witness has not found any injury on the abdomen the informant but PW 1, the medical witness has deposed that he. : has found a cut injury in the right side of chest 4 x 1/2 x deep upto chest cavity and also a small contusion on his left, thumb besides a cut injury on the left shoulder 21 x 1/21 x 1. : has found a cut injury in the right side of chest 4 x 1/2 x deep upto chest cavity and also a small contusion on his left, thumb besides a cut injury on the left shoulder 21 x 1/21 x 1. It has also been submitted that the FIR in this case is not free from suspicion and it has been received by the Court of SDJM on 4. 10. 1984 whereas the FIR was lodged on 27. 9. 1984 at 10. 00 a,m. It has also been submitted that PW/2, Upendra Nath Singh Munda is said to be the scribe of the written report which bears the LTI of informant but as per the evidence of PW 2 the said written report has been scribed by one jhahavir Mahto whereas PW 4 informant has deposed that written report has been scribed by the police official at the Arki PS and in this view of the matter the written report of the informant is the result of after thought to falsely implicate the appellant due to admitted enmity between them as admitted by PW 1 in para 7 of his testimony. Lastly, it has been submitted that the 1. 0. has not been examined in this case by the prosecution and no explanation in respect thereof is forthcoming on the record and the appellant has been seriously prejudiced due to non examination of the 1. 0. as he has been debarred of the opportunity of eliciting facts in the cross-examination of the I. 0. showing his innocence as well as the objective finding of the 1. 0. regarding the alleged place of, occurrence. ( 8 ) THE learned A. P. P. has submitted that there are two cut injuries on the chest and right shoulder of the informant which as per evidence on the record have been caused by the appellant by dagger and the testimony of PW 4, the informant funny supports the: prosecution case and other witnesses, though hearsay, have deposed to have seen the injury on the person of the informant. ( 9 ) IT is relevant to mention at the very outset that as per the prosecution case the appellant is said to have inflicted dagger blow on the abdomen of informant and he fell down and thereafter he was given further dagger blow on his right arm. ( 9 ) IT is relevant to mention at the very outset that as per the prosecution case the appellant is said to have inflicted dagger blow on the abdomen of informant and he fell down and thereafter he was given further dagger blow on his right arm. PW 7, the medical witness, has deposed to have found the1. Cut injury on the right side of the chest 4 x 1/2 x upto chest cavity. 2. Cut injury on the left deltoid region 2 x 1/2 x I. 3. Small contusion on left thumb. ( 10 ) THE occurrence of this case is said to have taken place cm 26. 9. 1984 whereas PW 7 has deposed to have examined the informant in the month of November, 1984. According to the prosecution case there is no whisper regarding the injury No (iii) aforesaid which has been found by the medical witness. The age of. injury has also not been mentioned in the injury report as well as in the testimony of the medical witness rather an explanation has been furnished by the medical witness PW 7 in para 4 of his cross-examination in which he has stated that he has not given the age of injury in the injury report as he did not think it necessary to give the age of injuries in the injury report so he did not give the same. And to crown all, the nature, dimension and size of the injuries appearing on the person of the informant cannot be said to have been caused by dagger as the medical witness has not found any penetrating wound which is normally found by an assault by a dagger. Therefore, the injuries appearing on the person of the informant is not in conformity with the manner of the occurrence. PW 4 has deposed on oath that the appellant assaulted him by dagger causing injury on the right side chest and thereafter he pushed him on the ground and again a blow by dagger was given on his left shoulder and when the third blow was being inflicted he had caught the dagger which caused an injury in his hand and he got up and called Ranjit Singh Munda and Upendra Singh Munda. This evidence of informant is not at all in conformity with the manner of occurrence as averred in the written report of the informant. This evidence of informant is not at all in conformity with the manner of occurrence as averred in the written report of the informant. The finding of the learned court below in the impugned judgment that the informant was an illiterate person and that is why this discrepancy has occurred does not all stand to reason. Even a lay man knows the difference between abdomen and chest: PW5 1, 2, 3 and 6 are all hearsay witnesses and they have no occasion to witness the occurrence in question. Therefore, the evidence on record is not reliable and is replete with inherent improbabilities and material contradictions which speak volumes against the authenticity of the prosecution case. The dagger which was matched by the informant in course of the occurrence has been deposited with the PS but said dagger has not been brought on the record and the 1. 0. has not been examined in this case for the reasons best known to the prosecution and in this view of the matter should be, accused! appellant stands seriously prejudiced due to the non-examination of the 1. 0. as he stands debarred from eliciting the facts showing his innocence in the cross-examination of the 1. 0. and serious prejudice has been ca used to him in the facts and circumstances of the case. And last but not the least, I see substance in the contention of the learned counsel for the appellant that the FIR in the facts and circumstances of the case is surrounded by suspicious circumstances. The learned counsel below did not meticulously scrutinise the evidence on the record and has erred in coming to the conclusion of the guilt of appellant: It is therefore evident from the discussions above that there is illegality in the impugned judgment and order requiring an interference therein. ( 11 ) IN view of the discussions above coupled with the facts and circumstances of the case there is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order is hereby set aside. The appellant is not found guilty for the offence punishable under Section 307, IPC and he is, accordingly, acquitted. He is also discharged from the liability of the bail bond. Appeal allowed. --- *** --- .