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2007 DIGILAW 1194 (PAT)

Shankar Mahto v. State Of Bihar

2007-07-24

INDU PRABHA SINGH

body2007
Judgment Indu Prabha Singh, J. 1. This appeal is directed against the judgment dated 2.04.2003 passed in Sessions Case No. 466 of 1994, Tr. No. 94 of 2001 by Shri Parash Nath Sinha, learned Additional Court (Fast Track) Manger, by which the two appellants were found guilty u/s. 302/34 of the Indian Penal Code for having committed the offence of culpable homicide not amounting to murder of Bhuneshwar Mahto (deceased) and were sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs. 2,000.00 each and in default to undergo simple imprisonment for six months. The appellants were, however, not found guilty u/s. 147 read with Ss. 302/149 of the Indian Penal Code. They were also not found guilty u/s. 27 of the Arms Act". 2. The prosecution case, in short, is that the elder brother of the deceased informed P.W.7, Uchit Mahto that the deceased was coming with him after obtaining bail from Laheriasarai. On 12.3.1993 at about 6 P.M. the deceased alighted from the bus and was proceeding to his house. When he reached near the house of accused Nageshwar Mahto all on a sudden all the accused persons including the present appellants variously armed surrounded the deceased and on the order of the accused Nageshwar Mahto the appellants assaulted the deceased with the butt of the gun and brick bats on his head causing injuries as a result of which he fell unconscious. On Hullah several villagers arrived and they also indulged in the assault by means of lathi etc. The police after investigation submitted the charge sheet. The appellants alongwith others were tried by the learned Court below in which they were convicted in the manner indicated about. 3. The defence of the appellants is that the deceased along with P.W.1, Lal Mahto had returned from Laheriasarai Court by a bus on 12.3.1993 at about 6 P.M. and the deceased had sustained injuries while he was alighting from the bus for which his brother had obtained compensation from the bus owner. 4. In this appeal it has been contended that the prosecution case is entirely false and the evidence adduced on behalf of the prosecution is not trust worthy. The prosecution case suffers from material contradictions. The deceased had sustained injuries while alighting from the bus. 4. In this appeal it has been contended that the prosecution case is entirely false and the evidence adduced on behalf of the prosecution is not trust worthy. The prosecution case suffers from material contradictions. The deceased had sustained injuries while alighting from the bus. Since the parties were on inimical terms from before they took advantage of this incident and filed this false case against the appellants and others. Accordingly, they have prayed that this appeal be allowed and they be acquitted of the charges framed against them. 5. The parties have been heard at length. From the judgment under appeal it appears that there were altogether 11 Accused in this case. Accused no.1 Nageshwar Mahto was convicted under Ss. 302/109 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 2,000.00. He has filed a separate appeal, namely, Criminal Appeal No. 190 of 2003 which was being heard analogous with the present appeal. It, however, appears that during the pendency of this appeal he died and as such the appeal filed by him (Cri. Appeal No. 190 of 2003) abated as will appear from the order sheet dated 26.9.2005 passed in the said appeal. However, so far as the present appellants are concerned their appeal (Cri. Appeal No. 195 of 2003) continued. 6. 14 P.Ws. have been examined in this case. P.W. 7 is the informant. P.W. 11 is the Investigating Officer. He has stated that the informant (P.W.7) did not tell him that he had seen the alleged occurrence. Thus, P.W.7 does not appear to be an eye witness. So far as P.W. 1, Lal Mahto is concerned he has claimed to be the full brother of the deceased and both of them were travelling by the same bus from which they alighted at the village. In his cross examination he has admitted that the police had not recorded his statement. P.W. 2, is Fauji Paswan. He is a hearsay witness. He has, however, stated that he came to learn that the deceased had fallen down from the bus and had sustained injuries in his head. P.W.3 is another brother of, the deceased. He has said that he found the deceased in an injured condition. He has not claimed that he saw the alleged occurrence. P.W. 4 is another full brother of the deceased. P.W.3 is another brother of, the deceased. He has said that he found the deceased in an injured condition. He has not claimed that he saw the alleged occurrence. P.W. 4 is another full brother of the deceased. In his evidence he has stated that on the Fardbeyan (Ext. 2) he has put his signature and the date (12.3.1993) on it. Ext. 2, however, clearly shows that his signature does not appear on it. Thus he does not appear to be a truthful witness. So far as P.W.5 is concerned he has stated that he saw the deceased alighting from the bus. He has not stated about having seen the alleged occurrence. P.W. 6 has been declared hostile. He has said that he did not see any occurrence. The same is the case with P.W. 9 who also has stated that he did not see the alleged occurrence. P.W.8 Ram Bilash Paswan is a hearsay witness as he has simply stated that he heard about the alleged occurrence but did not see it. So far as P.W. 10 is concerned he is a seizure list witness. P.W. 12 is Medical Officer. He had not conducted the post mortem examination on the dead body of the deceased. The post mortem report (Ext. 4) has been proved by him. It does not bear the case number or the seal of the Police Station or even of the hospital. Doctor Arjun Prasad Sarshwati who is said to have conducted the post mortem examination has not been examined As per Ext. 4 the injury was found only one side of the head. On behalf of the appellants it has been submitted that the deceased sustained this injury while alighting from the bus as he fell down. The injury on only one side of the head supports this version. So far as P.Ws. 13 and 14 are concerned they were not examined by the I.O. From this it would appear that the evidence adduced on behalf of the prosecution does not inspire confidence. 7. It is well settled in law that it is not for the defence to prove that the prosecution case is not correct. It is for the prosecution to prove its case beyond all reasonable doubts. 7. It is well settled in law that it is not for the defence to prove that the prosecution case is not correct. It is for the prosecution to prove its case beyond all reasonable doubts. In the present case as will appear from the discussions made above that the prosecution has not been able to prove its case beyond all reasonable doubts. On behalf of the defence it has been contended that the informant has already obtained compensation from the bus operator for the injuries sustained by the deceased while alighting from the bus as has been accepted by the prosecution witnesses. 8. From the detailed discussions made above it appears that the prosecution has not been able to prove its case beyond all reasonable doubts and the appellants are entitled to be acquitted. 9. In the result this appeal is allowed and the judgment of conviction of the learned Court below so far as these two appellants are concerned is set aside and the appellants are acquitted of the charges framed against them. They are directed to be set at liberty. 10. It has been stated that the appellant no.2, Bijay Kumar @ Bijay Mahto is in custody. He is directed to be released forthwith, if not wanted in any other case.