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2004 DIGILAW 196 (PAT)

Chandeshwar Mahto & Ors. v. State Of Bihar

2004-02-17

BRAJ NANDAN PRASAD SINGH

body2004
Judgment BRAJ NANDAN PRASAD SINGH, J. 1. The appellants were tried by Presiding Officer, Fast Track Court, Vaishali at Hajipur in Sessions Trial No.235 of 1990 and while Kalpu Mahto suffered conviction under Section 307 of the Indian Penal Code, the rest two appellants suffered conviction under Section 307 with the aid of Section 34 of the Indian Penal Code and for their conviction, all the three appellants were sentenced to suffer rigorous imprisonment for a term of seven years each. The appellants suffered conviction also under Section 27 of the Arms Act for which they were sentenced to suffer rigorous imprisonment for a term of three years each with rider that all the sentences shall run concurrently. 2. The factual matrix : Allegedly on 6th May, 1988 Jugal Rai (PW 4) and his brother Ram Naresh Rai having noticed appellants plucking vegetable from the field, rushed there and forbade them from plucking vegetable, pursuant to which the appellants came holding fire arms. An altercation ensued pursuant to which on exhortation made by Meghan Mahto, Kalpu Mahto fired shot on his brother which struck left side of his chest and he dropped injured. All attempts for their apprehension on chase failed due to appellants taking recourse to firing while making good their escape. The injured was carried to hospital, pursuant to which his statement was recorded by Pirbahore Police. The said Jugal Rai rendered fardheyan on 11th May, 1988 at the police station, pursuant to which investigation followed, in course of which, for collection of evidence, the Investigating officer recorded statement of witnesses, visited place of occurrence, secured injury report from the doctor and on conclusion of investigation laid charge-sheet before the Court. In the eventual trial that followed, while State examined five witnesses, Laxman Kumar Kislay was examined as Court witness after recording statement of the appellants. 3. The defence of the appellants both before the Court below and this Court had been that of innocence and they ascribed their false implication for no good excuse. The Trial Court, however, on evaluating probative value of testimony of the witnesses, while rejecting plea of innocence, recorded finding of guilt and sentenced appellants in the manner stated above. 4. 3. The defence of the appellants both before the Court below and this Court had been that of innocence and they ascribed their false implication for no good excuse. The Trial Court, however, on evaluating probative value of testimony of the witnesses, while rejecting plea of innocence, recorded finding of guilt and sentenced appellants in the manner stated above. 4. Submissions made on behalf of the appellants to assail the finding recorded by Court below was that even though the doctor was not examined at trial, whose evidence could have been of substantive value, the Trial Court had chosen to record finding of guilt under Section 307 of the Indian Penal Code against appellants placing reliance on the injury report brought on the record with the aid of none else but on Advocates clerk. Contentions are raised that there is no gain saying the fact that the evidence of a witness other than the expert could not be a good evidence or such witness would not be substitute of the expert. Highlighting narrations made by the prosecution witnesses, contentions are raised that though some witnesses had been stating at trial about there being copious blood at the place of occurrence, since Investigating Officer was not examined at trial, there was no objective finding which can strengthen the assertion made by the witnesses. As for belated prosecution argument was that though occurrence was shown to have taken place on 6th May, 1988, it was not before 11th May, 1988 that Jugal Rai (PW 4) had chosen to file a written complaint before the police with regard to the alleged incident and it was urged that in view of the belated action of the prosecution, for which there was no plausible excuse, the bona fide of assertion was open to question as chances of manipulation and embellishment cannot be ruled out. Yet it is urged that though the appellants suffered conviction under Sections 307 and 307/34 of the Indian Penal Code, regard being had to the accusation attributed to them, their case would not fall within four corners of Section 307 of the Indian Penal Code and the last argument was that since the prosecution was launched against appellants in the year 1988 and they had suffered ordeal of protracted prosecution for more than fifteen years, in case finding of guilt recorded by the Court below is upheld by this Court, this mitigating circumstance would deserve merit consideration to judge the extent of sentence to be awarded to the appellants. Contention raised on behalf of the appellants was resisted by learned counsel appearing for the informant who appeared on his own. To appreciate the contentions raised, a brief resume of the narrations made by the witnesses can, however, be noticed with brevity. Reiterating his earliest version which he rendered before the Police, Jugal Rai (PW 4) states about appellants visiting vegetable field of Ram Ishwar Rai (PW 3) holding arms pursuant to which on exhortation made by Meghan Mahto, one of the appellants, Kalpu Mahto fired shot on left side of chest of Ram Naresh Rai who dropped injured. Narrations with sustained consistency in similar terms and veins were made also by Dina Nath Rai (PW 1) who too was in the field when he witnessed the incident. Reference may be had to the evidence of Brit Rai (PW 2) and Ram Ishwar Rai (PW 3). Though former tried to project himself to be an ocular witness, acknowledged in no uncertain terms that shortly after he rushed to the place of occurrence, he found Ram Naresh Rai lying injured and he could not even notice wounds on his chest, and similar had been the evidence of Ram Ishwar Rai (PW 3) also who too stated to have noticed Ram Naresh Ray lying injured and the appellants making good their escape with the arms. He stated to have learned from Jugal Rai (PW 4) about Kalpu Mahto having fired shot on the injured on exhortation made by Meghan Mahto. 5. The injury report, of which Dr. O.P.Saha was said to be the author, was placed on the record by Ram Babu Sah, PW 6, an Advocate Clerk. He stated to have learned from Jugal Rai (PW 4) about Kalpu Mahto having fired shot on the injured on exhortation made by Meghan Mahto. 5. The injury report, of which Dr. O.P.Saha was said to be the author, was placed on the record by Ram Babu Sah, PW 6, an Advocate Clerk. The evidence of Laxman Kumar Kislay, a Court witness, too would merit consideration in view of the fact that this witness had placed on the record, the fardbeyan of Ram Naresh Rai (Ext. 4) which seems to be earliest version of the prosecution, recorded by police just on the following day of the incident at about 7.30 hours in P.M.C.H. Since almost with same accusation which had surfaced in the written complaint of Jugal Rai (PW 4), Ext. 4 too was recorded by Police just on following day of incident, prosecution cannot be faulted for belated prosecution. True it is that though the said fardbeyan of which Ram Naresh Rai was said to be the author was placed on record when he was examined, that did not diminish probative value of this document, there being such assertion in evidence of Ram Naresh Rai and Jugal Rai, PW 4, also. Jugal Rai, PW 4, states that the said fardbeyan of Ram Naresh Rai was recorded in PMCH just on the following day of the incident by the police officer. 6. Since a lot of argument have been canvassed on behalf of the appellants about admissibility of the injury report placed on the record with the aid of a formal witness, the Trial Court too had taken notice of the submission canvassed and cogent reasonings have been assigned to place reliance on the document, not-withstanding ignoring the finding of the doctor about nature of injury, as doctor, in opinion of the Trial Court, would have been the best witness to make comment about nature of injury. Though feeble comments were made about there being variation in statement of witnesses with regard to quantity of vegetable allegedly removed from the field, that did not bear much value. True it is that the Investigating Officer was not examined at trial but I am of the view that the prosecution would not suffer casualty for non-examination of the Investigating Officer, there being neither major contradiction in the statement of the witnesses nor there being ambiguity about the place of occurrence. 7. True it is that the Investigating Officer was not examined at trial but I am of the view that the prosecution would not suffer casualty for non-examination of the Investigating Officer, there being neither major contradiction in the statement of the witnesses nor there being ambiguity about the place of occurrence. 7. Yet one of the submissions made at bar was that assuming the prosecution version to be true on its face value, Kalpu Mahto had not been saddled with allegation of repeating fire shot and that apart, circumstances did not eloquently suggest that the assailants would have translated their design into action, but for intervening circumstances. As has been urged, the prosecution was launched against appellants in the year 1988 and they had also suffered trauma of protracted prosecution for about fifteen years. About Kalpu Mahto it is stated that he has remained in custody for about two years and three months. 8. Regard being had to the nature of accusations attributed to the appellants and also the evidences placed on the record, overt act attributed to them squarely fall within the mischief of Section 324/34 of the Indian Penal Code and in that view of the matter, conviction recorded by the Trial Court under Sections 307, is altered to Section 324 of the Indian Penal Code, as against Kalpu Mahto, and conviction under Section 307/34 of the Indian Penal Code is altered to Section 324/34 of the Indian Penal Code, as against rest appellants. Since Kalpu Mahto has remained in jail custody for about two years and three months and prosecution was launched about 15 years back, Kalpu Mahto is sentenced to the period already undergone by him and in addition to that he is also sentenced to pay a fine of Rs. 500/-, in default of which, he would suffer rigorous imprisonment for three months. In case of rest two appellants i.e. Chandeshwar Mahto and Meghan Mahto, their conviction and sentence under Section 324/34 of the Indian Penal Code is set aside and instead of sentencing them to substantive imprisonment, they are sentenced to pay fine of Rs.1000/- each, in default of which, they would suffer rigorous imprisonment for four months. As for conviction of the appellants under Section 27 of the Indian Penal Code, though finding of guilt recorded by the Court below is upheld, in view of circumstances stated above, sentence is set aside. As for conviction of the appellants under Section 27 of the Indian Penal Code, though finding of guilt recorded by the Court below is upheld, in view of circumstances stated above, sentence is set aside. The appellants shall deposit fine to which they are sentenced by this Court, within two months of production/receipt of a copy of this judgement, and on realisation of fine, a sum of Rs. 2000/- (two thousand)shall be payable to the injured and rest shall go to the State with these modifications, the appeal is dismissed.