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2006 DIGILAW 1090 (JHR)

Diwakar Mahto v. State of Jharkhand

2006-08-21

N.N.TIWARI

body2006
JUDGMENT Narendra Nath Tiwari, J. 1. The appellants were tried for the charges Under Sections 307, 325, 324, 148/149 of the Indian Penal Code and convicted and sentenced by the judgment and order passed by learned Additional Sessions Judge, Fast Track Court, Bokaro. The appellant No. 10 Chotu Mahto has been sentenced to undergo rigorous imprisonment for five years Under Sections 307/149 of the Indian Penal Code; rigorous imprisonment for two years Under Sections 325/149 of the Indian Penal Code; rigorous imprisonment for one year Under Sections 324/149 of the Indian Penal Code; rigorous imprisonment for one year Under Sections 148/149 of the Indian Penal Code. All the sentences are to run concurrently. The rest 14 appellants have been sentenced to undergo rigorous imprisonment for five years Under Section 307/149 of the Indian Penal Code; rigorous imprisonment for two years Under Sections 325/149 of the Indian Penal Code and rigorous imprisonment for one year Under Sections 148/149 of the Indian Penal Code. All the sentences are to run concurrently. 2. The prosecution case in brief is that on 02.10.1997 at about 7 a.m. while the informant (P.W.7) was watching the crops, as appointed by the villagers, the appellant No. 1 along with rest of the appellants reached there and surrounded the informant. The appellant No. 1, Diwakar Mahto, then instigated the other appellants whereupon appellant Nos. 4, 6 and 7 hurled lathi blows on the informant causing injuries on his hand and forehead. When the informant raised alarm, the inmates of neighbourhood including Bholu Mahto, Mahendra Mahto, Amulya Mahto, Gangadhar Mahto rushed to the place of occurrence. The accused-appellants also assaulted the said persons with lathi and tangi. Chotu Mahto, allegedly, was armed with tangi while other accused persons were allegedly holding lathi. The cause of occurrence is said to be the dispute regarding grazing of cattle. 3. In order to establish the charges, the prosecution, in all, examined nine witnesses. Amongst them, P.W.1, P.W.3, P.W.4, P.W.5, P.W.7 and P.W.8 are the injured persons. Out of them, P.W.1 and P.W.8 are said to have sustained grievous injuries while other aforesaid PWs sustained simple injuries. 4. One defence witness was also examined who stated that there was a case and counter case. 5. Amongst them, P.W.1, P.W.3, P.W.4, P.W.5, P.W.7 and P.W.8 are the injured persons. Out of them, P.W.1 and P.W.8 are said to have sustained grievous injuries while other aforesaid PWs sustained simple injuries. 4. One defence witness was also examined who stated that there was a case and counter case. 5. The Trial Court, on the basis of the testimony of the said injured witnesses coupled with the medical evidence, found the accused appellants guilty and convicted and sentenced them as aforementioned. 6. Mr. R. Mukhopadhyay, Learned Counsel for the appellants assailed the conviction and sentence of the appellants, mainly, on the ground that there was inordinate delay in forwarding the first information report and there is no explanation for the delay. The conviction and sentence based on the said First-Information Report is vitiated and unsustainable. It has been submitted that the occurrence took place on 02.10.1997 and the fardbayan is said to be recorded on the same day at 10.30 a.m., but the first information report was forwarded to the Court of the Chief Judicial Magistrate on 04.10.1997 after the delay of two days. There is no explanation for the said inordinate delay in forwarding the first information report. Learned Counsel submitted that in view of the same alone, the conviction and sentence of the appellants cannot be upheld and are liable to be set aside. In order to fortify the said ground, Learned Counsel placed reliance on a decision of the Supreme Court in State of Rajasthan v. Teja Singh reported in 2001CriLJ1176. Learned Counsel next submitted that in this case the prosecution has also failed to prove the farbayan itself. From Exhibit I, it is evident that the Fardbeyan was recorded on the statement of P.W.7 Kishan Mahto whereas the P.W.3, said to be the witness of the occurrence, is one of the injured persons. He stated in his deposition that P.W.7 was injured and unconscious and he regained his consciousness the next day and that the police had recorded the statement of Fagu, P.W.8 first. Learned Counsel submitted that the said contradiction on the fardbeyan shakes the very foundation of the prosecution case and makes the entire case doubtful. He stated in his deposition that P.W.7 was injured and unconscious and he regained his consciousness the next day and that the police had recorded the statement of Fagu, P.W.8 first. Learned Counsel submitted that the said contradiction on the fardbeyan shakes the very foundation of the prosecution case and makes the entire case doubtful. Learned Counsel, advancing his argument, further submitted that prosecution failed to examine the Investigating Officer (I.O.) which has caused serious prejudice to the appellant in view of the contradictory statements regarding the fardbayan and other contradictions, the evidence of the Investigating Officer could have thrown some light and cleared the mist, but the prosecution failed to examine the Investigating Officer. The said failure, on the part of the prosecution, to examine the Investigating Officer has caused serious prejudice to the accused-appellants. Learned Counsel relying upon a decision of this Court in Sukruddin Mian and Ors. v. State of Bihar (Now Jharkhand) reported in 2006 (2) E Cri. C 223 submitted that the said failure on the part of the prosecution is fatal and on that ground alone, the appellants deserved acquittal. Learned Counsel submitted that no independent witness has been examined. There was injuries on the person of the accused-appellants and FIR was lodged against informant party (Exhibit 'A'), but those injuries have not been explained by the prosecution and in that view also the impugned judgment and order is bad and unsustainable in law. Learned Counsel submitted that learned Court below, without taking into consideration the said contradictions and legal infirmities in the prosecution, has erroneously passed the said conviction and sentence. 7. Learned A.P.P., on the other hand, submitted that though there are minor contradictions here and there, but the injuries on the persons of the informant party are proved by ocular as well as by medical evidence. Learned Counsel submitted that though there was no such explanation for the delay in forwarding the first information report, it is not unnatural in the circumstances of the case to consume some more hours in the process of forwarding the FIR. The police was busy in treatment of the injured in the hospital and making necessary arrangements and in that process, there was some delay and that is not fatal or sufficient to demolish the prosecution case. The police was busy in treatment of the injured in the hospital and making necessary arrangements and in that process, there was some delay and that is not fatal or sufficient to demolish the prosecution case. Learned Counsel submitted that learned Trial Court has discussed all the evidences and found the appellants guilty and the impugned conviction and sentence do not warrant any interference by this Court. 8. After hearing the parties, considering their submissions and on meticulous scrutiny of the evidences and materials on record, I find that the fardbeyan is said to be recorded on the statement of P.W.7. P.W.3 Bholu Mahto, who is one of the injured. In his deposition, he has stated that Kishan Pado regained his consciousness the next day and that he and Fagu (P.W.3) were conscious and that said P.W.8 had at first given the statement before the police and thereafter they were sent to hospital. Since the said P.W.3 is himself an injured person and has given full account and there is no explanation or any material to contradict the said statement, the very fardbeyan, said to be recorded on the statement of Kishan Pado (P.W.7) becomes doubtful and shakes the very foundation of the prosecution case. The statement made by Fagu (P.W.8) has not been brought on record. The said statement recorded by the police was most relevant and there is serious infirmity in the case in absence of the said statement of Fagu (P.W.8) which was the statement said to be given before the police before sending the injured to hospital. Further, it has been admitted that the occurrence took place on 02.10.1997 at about 7 a.m., but from perusal of Exhibit I it appears that the first information report was received in the Court of the Chief Judicial Magistrate on 04.10.1997. There is no explanation for the two days' delay in forwarding the first information report. The said delay in view of the statement of P.W.3 makes the prosecution case more doubtful. The evidence of Investigating Officer could have thrown lights on the said vital points, but I.O. has not been examined. The statement of P.W.3 regarding the fardbeyan having not been explained and the I.O., who investigated the case on the basis of the said fardbeyan, having been not examined, caused serious prejudice to the accused-appellants and give rise to serious doubts. The statement of P.W.3 regarding the fardbeyan having not been explained and the I.O., who investigated the case on the basis of the said fardbeyan, having been not examined, caused serious prejudice to the accused-appellants and give rise to serious doubts. From perusal of the evidence of D.W.1 and Exhibit I, it is found that there was a counter case complaining free fight between the parties. There was no explanation of the injuries on the persons of the appellants. Inordinate delay in forwarding the First Information Report to the Court without any explanation is another factor in the chain of doubts. The Supreme Court in State of Rajasthan v. Teja Singh reported in AIR 2001 SC 993 set aside the conviction and sentence on the ground of delay in forwarding the first information report to the Court in absence of any reasonable explanation. In view of the above serious legal infirmities and failure of the prosecution to establish the charges against the appellants beyond reasonable doubts, the conviction and sentence of the appellants cannot be upheld. This appeal is, thus, allowed. The conviction and sentence against the appellants are set aside. The appellants, who are on bail, are discharged from liability of their bail bonds. Appeal allowed.