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2003 DIGILAW 830 (JHR)

Diwani Mahto @ Dewani Mahto v. State of Bihar

2003-07-16

AMARESHWAR SAHAY

body2003
Judgment Amareshwar Sahay, J.-Eight accused persons including two appellants were tried for committing the offence under sections 148, 149, 307, 326, 325, 324 and 147 of the Indian Penal Code. The learned 2nd Additional Sessions Judge, Giridih vide his judgment dated 24th June, 1997 in S.T. no. 47 of 1993 acquitted the accused persons namely Dwarikha Mahato, Babulal Mahto, Munshi Mahto, Mohan Mahto, Bhushan Mahto and Baasuki Mahto from the charges levelled against them. The appellant no. 1 Diwani Mahto @ Dewani Mahto was convicted for committing the offence under section 326 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for five years and appellant no. 2 Bilash Mahto was convicted for committing the offence under section 324 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for two years. 2. Being aggrieved by the said conviction and sentence, the appellants have preferred the present appeal. 3. The prosecution case in brief is that on 11.8.1992 at about 6:30 A.M. while informant Rajendra Prasad Singh @ lakhi Singh (P.W. 7) was going to plough his field and while he reached near the house of Babu lal lahar, he saw Dwarika Mahato, Basunki Mahto, Bhusan Mahto, Mohana Mahto, Babu lal Mahto, Munshi Mahto (all acquitted) and the present two appellants, who were armed with speares, Farsa, Bhakuwa and Lathi. It is further alleged that on the order of Dwarika Mahto, accused Babu lal Mahto (since acquitted) assaulted the informant with lathi. When the informant tried to escape from there, Diwani Mahto, appellant no. 1 assaulted him with Farsa on his head, as a result of which he received injuries on his head and he fell down. In the meantime, appellant nO.2 assaulted the informant with Bhakuwa on his right thigh and thereafter all the accused persons (since acquitted) assaulted the informant with lathi. On alarm being raised, the villagers assembled there and then the informant was removed to his house by Chhotu Singh, P.W.1 and Babulal lahar, P.w. 3. Informant along with Chhotu Singh, P.w. 1 went to the police station and lodged a written report before the officer-in-charge of Dhanwar Police Station, on the basis of which a case was registered under sections 147/148/149/323/324 and 307 of the Indian Penal Code against the accused persons including the present appellants. 4. Informant along with Chhotu Singh, P.w. 1 went to the police station and lodged a written report before the officer-in-charge of Dhanwar Police Station, on the basis of which a case was registered under sections 147/148/149/323/324 and 307 of the Indian Penal Code against the accused persons including the present appellants. 4. Altogether eight witnesses were examined on behalf of the prosecution in order to prove the charges. 5. P.W. 7, Rajendra Singh, is the informant who is said to have been assaulted by these two appellants. P.W. 5 is the Dr. S. P. Mishra who examined the injuries on the person of the informant, Rajendra Singh and he found the following injuries :- (i) An incised wound over scalp 3" x 1/4" x bone deep with fracture of parietal bone. (ii) An incised wound 2" x 1/4" x bonedeep one inch away from the first wound. (iii) A penetrating injury through and through, wound of entry 2" x 1/2" wound of exit 1/2" x 1/4" distance and inward over lower portion of right thigh. 6. The informant, P.W.7, has stated in his evidence that appellant no. 1, assaulted him on his head with Farsa causing injuries due to which he fell down. Thereafter the appellant no.2 assaulted him with Bhakuwa. The statements of the informant has been fully corroborated by the medical evidence i.e. the statement of the Dr., P.W. 5. 7. Learned counsel for the appellants submitted that the Dr. P.W. 5 has not stated in his evidence nor he has opined that the injuries found on the persons of the informant were sufficient or were likely to cause his death and therefore, ingredients of Section 326 of the Indian Penal Code has not been established. According to the learned counsel for the appellant, at best it can be a case under section 325 of the Indian Penal Code against the appellant no.1. The submissions of the learned counsel appears to be correct as I find that statements of the Dr. is lacking in that regard. He has neither stated in his evidence nor he has opined in his injury report that injuries said to have been caused by the appellant no.1 on the informant was such which could I lave caused his death. Therefore, the conviction of the appellant under section 326 of Indian Penal Code was not justified. 8. is lacking in that regard. He has neither stated in his evidence nor he has opined in his injury report that injuries said to have been caused by the appellant no.1 on the informant was such which could I lave caused his death. Therefore, the conviction of the appellant under section 326 of Indian Penal Code was not justified. 8. However, since the prosecution has been able to prove that injuries were caused by the appellant no.1 on the informant on his head by means of farsa, therefore, I am of the view that the offence under section 325 of the Indian Penal Code is established against the appellant no. 1 and therefore the conviction of the appellant no. 1 is altered and he is convicted under section 325 of the Indian Penal Code. So far as the conviction of the appellant no. 2 is concerned, I find that the learned trial court has rightly found him guilty for committing the offence under section 324 of the Indian Penal Code and therefore he was rightly convicted thereunder. 9. The learned counsel for the appellants has contended that since the case is of the year 1992 i.e. more than 10 years back and the appellants have remained in jail for about six months therefore a lenient view may be taken so far as the sentence is concerned. 10. Considering the facts and circumstances of the case I find that since the appellants have already remained in jail for about six months, therefore, in my view the sentence of period undergone by the appellants shall meet the ends of justice. Accordingly the sentence of the appellants is reduced to the period already undergone by them. 11. In the result this appeal is dismissed.