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2006 DIGILAW 1351 (JHR)

Baid Nath Mahato v. State Of Bihar

2006-11-23

AMARESHWAR SAHAY, DHANANJAY PRASAD SINGH

body2006
JUDGMENT 1. This is appeal is directed against the judgment of conviction and order of sentence dated 28.9.96 passed by the learned Additional Sessions Judge, Singhbhum West, Seraikella in Sessions Trial No. 382/94, whereby and whereunder the learned Sessions Judge held the appellant guilty under Section 302 IPC and convicted and sentenced him to undergo RI for life. 2. The factual matrix leading to this appeal are that in the morning of 20.6.94 the deceased More Mahato was grazing his cattle when the appellant Baid Nath Mahato assaulted him with stone resulting in his death. According to the informant Ghanshyam Mahato, this was reported to him by PW 2 Bhogta Mahato, brother of the deceased on the road when he was going to see his field. The informant along with PW 2 rushed towards the PO. According to PW 1, when they were going towards the PO they found the appellant fleeing away and stopped by them and asked why he has committed this murder. The informant further asserted that the appellant threatened them saying that he has killed More Mahato. In the meantime villagers assembled but the appellant fled away. The informant along with other witnesses arrived at the PO to find that the deceased was lying with back of his head badly broken and brain materials coming out. The prosecution further asserted that the deceased was an accused in the murder of the wife of appellant, for which he has remained in custody and recently came out on ball. The matter was reported to Chandil police, which arrived at the PO in the afternoon and recorded the statement of PW 1, on the basis of which Chandil P.S. Case No. 5/94 was registered under Section 302 IPC against the appellant. After investigation the case was committed for trial by the court of Sessions. The trial court after examining witnesses found and held the appellant guilty under Section 302 IPC and convicted and sentenced him as aforesaid. 3. The present appeal has been preferred on the ground that the appellant has been implicated falsely in this case by the informant and PW 2 because of village politics as well as enmity prevailing between the parties. 3. The present appeal has been preferred on the ground that the appellant has been implicated falsely in this case by the informant and PW 2 because of village politics as well as enmity prevailing between the parties. It is also asserted that there is no eye witness of the occurrence, rather the dead body, which bore a large number of injuries, was found and the appellant was implicated in this case just because he has lodged a police case against the deceased and PWs 1 and 2 for the murder of his wife. It is also asserted that no independent witness has come to support the prosecution case. This has been asserted that the informant, Sarpanch of the village was manipulated the villagers and the present false implication of the appellant is one of the instances. 4. Mrs. Jaya Roy, learned Counsel for the appellant submitted that the witnesses may not be probable as the PO was situated at a distance from the village and none of inmates of the adjacent houses have come forward to support the prosecution case. Mrs. Roy further pointed out that the injuries found on the dead body were not possible by a single person, who has got no arm with him. Therefore, the prosecution case should not have been believed by the trial court. She further pointed out that the appellant has remained in custody for more than 12 years. 5. We have anxiously considered the points raised by the learned Counsel for the appellant. The prosecution has examined seven witnesses, out of which five are informant and family members of the deceased. PW 1, the informant is also the Sarpanch of the village, who was informed by PW 2 regarding the incident. According to this informant, he got the information from PW 2 and thereafter he rushed towards the PO situated near the nala to find the deceased More Mahato lying dead. He has asserted that he saw the appellant fleeing away and asked him why he has killed more then he said that he will kill all. This witness has admitted that deceased was in jail for the murder, of the wife of appellant and there was previous enmity for the lands. He has asserted that he saw the appellant fleeing away and asked him why he has killed more then he said that he will kill all. This witness has admitted that deceased was in jail for the murder, of the wife of appellant and there was previous enmity for the lands. This witness has admitted in cross examination that near the PO some houses were situated and he further admitted, vide para 6, before murder of the wife of the appellant there was some marpit between the informant side and his wife. This witness has further admitted that he along with other witnesses and the deceased was facing trial for the murder of the wife of the appellant vide para 9. PW 2, the eye witness of the occurrence, asserted that the deceased was tending she- buffalo and he was fencing his land situated near the nala when he heard alarm raised by the deceased. According to him, he saw appellant giving blows on the deceased with stone, thereafter he ran towards the village and came to meet PW 1 and came back to find the deceased lying dead. He has also admitted that PW 3 is the wife of deceased, PW 4 is son of deceased and PW 5 is elder brother of the deceased. So all the witnesses are related. This witness has admitted in cross examination that PO was situated at a distance of 1 kilometer from the village and it took more than one hour to visit the village and came back to the PO vide para 7 of his examination. He has further admitted vide para 8 that 3-4 houses were situated near the PO and they could have heard the alarm. He has admitted in para 10 that they used to respect PW 1 and this case was lodged on his direction. PW3 and PW 4 are not: witnesses of the occurrence. They admitted that they were facing trial for the alleged murder of the wife of appellant. PW 5 claimed that he also saw the assault taking place on his brother and the appellant fleeing away from the PO. According to this witness, there was dispute regarding land between the appellant: and the informant party. He admitted in para 5 that when he was in his house in the village when PW 2 came and reported him about this occurrence. According to this witness, there was dispute regarding land between the appellant: and the informant party. He admitted in para 5 that when he was in his house in the village when PW 2 came and reported him about this occurrence. However he rushed to reach the PO to find his brother dead. PW 6 is the IO, who arrived at the PO in the afternoon of 20.6.94 and recorded the fard beyan, prepared the inquest report, investigated the case and finally submitted chargesheet. He has admitted during cross examination that PO was situated in a lonely place near a nala and he found some blood at the PO. 6. PW 7, the doctor, has found 13 lacerated wounds on various parts of the dead body caused by hard and blunt substance. He further found on internal examination that all the ribs of both sides of the chest, except one rib, were found fractured. He further found pericardium and heart ruptured. The learned Counsel for the appellant submitted that such type of injuries were not possible by a single person having only one stone in his hand. It is also submitted that eyen the said stone has not been found at the PO nor recovered by the police. Therefore, the entire prosecution story suffers from improbability and does not inspire confidence. 7. We have carefully scrutinized the impugned judgment. The learned trial court has also mentioned these injuries vide para 11 of its judgment. It has been mentioned in para 12 that due to murder of the wife of the accused as well as previous litigation for the land between the parties, the appellant has got motive to kill the deceased. Having gone through the evidence on record, we are of the view that the view taken by the learned trial court is not correct. Enmity cuts both says. It is an admitted fact on record that PWs 1,2,4 and 5 were facing trial for the murder of the wife of appellant. PW 2 has admitted specifically that the present case was lodged at the instance of PW 1, the Sarpanch of the village. The learned court below has mentioned vide para 12 that just before the alleged killing of the wife of the appellant, the appellant was directed to pay a fine of Rs. 500/- to village Panchayat by PW 1, which was not complied with. The learned court below has mentioned vide para 12 that just before the alleged killing of the wife of the appellant, the appellant was directed to pay a fine of Rs. 500/- to village Panchayat by PW 1, which was not complied with. These two witnesses Pws 1 and 2 asserting that they saw the occurrence and the appellant fleeing away from the PO also becomes doubtful with the assertion of PW 5 that he arrived at the PO after being informed by PW 2 in the village. Therefore, if PW 2 has rushed to village then how he could accompany PW 1 towards the PO immediately. PW 5 has further admitted that when he reached at the PO he found his brother already dead lying on the ground. The alleged weapon of assault the stone, its size, weight etc. have not been brought on record so that the allegation that deceased was being assaulted with stone could be proved beyond doubts. From the evidence of PW 7 and Ext. 4, it is also found that such injuries are not possible by a single person assaulting the deceased with stone unless the deceased was overpowered and thrashed continuously for sufficient time. Thus the evidence on record does not sustain this allegation. 8. Having considered the above mentioned facts and circumstances, we find and hold hat the prosecution has no been able to bring home charge against the appellant beyond reasonable doubts. 9. In the result, this appeal is allowed and conviction of the appellant is set aside. The appellant is acquitted of the charges levelled against him and he is directed to be released forthwith, if not wanted in any other case.