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2008 DIGILAW 330 (PAT)

Heera Mahto @ Heera Sardar v. State of Bihar

2008-02-14

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S.K. SHARMA, J.:- The appellant Hira Mahto @ Heera Sardar preferred this appeal against, the judgment of conviction and order of sentence dated 22.6.1993 passed by the Additional Sessions Judge-I, Barh in Sessions Trial No. 95 of 1987 whereby this appellant was convicted under section 147 Indian Penal Code and was sentenced to undergo R.I. for one year and six months. 2 According to the informant Gulab Chand Thakur who was the Manager of Central Ware House Corporation, Mokamah on 19.7.1986 at about 4 PM some unauthorized labourers came to the Godown of the Corporation and prevented other labourers from working there. The matter was sorted out on the previous day. But on following day i.e. date of occurrence at about 10 AM when the informant came to his office on a rickshaw, he spotted 20-30 un-authorized labourers sitting there When the informant got down from the rickshaw then the appellant asked his associates, namely, Om Prakash Mahto, Anil Rajak, Bindrika Razak, Kunj Mahto, Ashok Mahto, Shankar Mahto, Mahendra Manjhi, Karu Manjhi, Govind Manjhi, Ram Nath Mahto, Sagar Mahto, Jagdish Paswan, Nand Kishore Paswan, Shankar Manjhi, Kailash Paswan, Sharawan Paswan, Naresh Manjhi, Upendra Mahto, Rajendra Manjhi, Umesh Paswan, Narain Manjhi, Basant Paswan, Chanaur Paswan, Manjhu Mahto, Bishundeo Yadav to assault and do away with the life of PW 1. At the behest of appellant other accused persons dragged the informant from the Rickshaw and assaulted him with iron rod, Katta and Lathi. When the informant, cried for help then witnesses Basudeo Jha (PW 4), Ram Jatan Mochi (PW 5), Alimuddin (PW 6), Nand Kishore Singh (PW 3) came and brought the informant to hospital for treatment. Accused Binda Rajak snatched bag of the informant containing Rs. 250/-. Keys of the office, cash books and almirah were also snatched. The informant received several injuries on his body. His statement was recorded and Mokaman P.S. Case No. 188 of 1986 was registered against the accused persons under sections 147, 148, 149, 307, 324, 323, 379 of the Indian Penal Code. 3. After investigation charge-sheet was submitted under the aforesaid sections as well as Section 353 IPC. Cognizance was taken and the case was committed to the court of sessions. 3. After investigation charge-sheet was submitted under the aforesaid sections as well as Section 353 IPC. Cognizance was taken and the case was committed to the court of sessions. The appellant and others, namely, Om Prakash Mahto, Shankar Mahto, Ashok Mahto, Manju Mahto, Kunj Mahto, Bishundeo Yadav, Ram Nath Mahto, Ganga Sagar Mahto, Chandrika Mahto, Dinesh Paswan, Kailash Paswan, Basant Paswan, Rajendra Manjhi, Naresh Manjhi, Narain Manjhi, Nand Kishore Paswan, Upendra Mahto, Gobind Manjhi, Karu Manjhi, Shankar Manjhi, Jagdish Paswan, Shrawan Paswan, Anil Rajak, Mundrika Rajak and Mahendra Manjhi were charged under sections 148, 307/149, 307/34, 353/379 of the Indian Penal Code. The appellant and other accused persons pleaded their innocence and preferred to be tried. After trial 15 accused persons were acquitted and the appellant was convicted under section 147 IPC. 4. The defence of the appellant was of false implication due to enmity. 5. It has been submitted on behalf of the appellant that PWs 3, 5, 6, 7 and 9 are not the eye witness of the occurrence. Only three eye witnesses have been examined on behalf of the prosecution. They are PWs 1, 3 and 4. Most of the eye witnesses have not even named the appellant and on identical evidences other accused persons have been acquitted. Same set of evidence has been utilized in passing order of conviction against the appellant. Once charge under section 307 IPC was not established and charge under other sections were also not established then no conviction order could have been under section 147 IPC. Once allegation of assault or participation of other accused persons have been disbelived then it was not proper to convict the appellant under section 147 IPC. The court has found. that the informant has not received injury in the manner as alleged by him and on that ground the persons who were alleged to have committed overt act of causing assault have been acquitted. 6. In support of the case the prosecution has examined 10 witnesses they are the informant Gulab Chand Thakur PW 1, Deoraj Singh PW 2, Nand Kishore Singh PW 3, Basudeo Jha PW 4, Ram Jatan Mochi PW 5, Md. Alliuddin PW 7, Dr. Krishan Kumar Prasad PW 7, Ram Gulab Yadav PW 8, Bharat Sharma PW 9 and Rama Kant Lal PW 10 is the I.O. 7. PWs 3, 5, 6, 7 and 9 were not the eye witnesses. 8. Alliuddin PW 7, Dr. Krishan Kumar Prasad PW 7, Ram Gulab Yadav PW 8, Bharat Sharma PW 9 and Rama Kant Lal PW 10 is the I.O. 7. PWs 3, 5, 6, 7 and 9 were not the eye witnesses. 8. PW 1 in his evidence has stated that on the dated of occurrence he was posted as Manager of the Central Ware House Corporation at Mokamah. A about 10 AM when he was going to his offence on rickshaw 25-30 labourers were sitting in front of the office who were having lathies. As soon as PW 1 got down from the rickshaw the appellant Heera Mahto asked his associates for assault. Thereafter he was dragged from the Rickshaw and assaulted. He received a number of injuries which are: (i) One lacerated wound 1 x 1/4" x 1/4" skin deep on the frontal region of the scalp left side. (ii) One lacerated wound 1/2 x 1/4" x 1/4" on the right cheek adjoining the right-ela of the nose. (iii) One lacerated wound 1/2" x 1/ 5x1/5" on the right ela of the nose. (iv) One swelling 1/2" x 1/2" x on the bridge of the nose above. For which X-ray was advised and nature of injury was kept reserved. (v) One abrasion 1/2" x 1/4" on the frontal region of the scalp right side. (vi) One lacerated wound 1/2" x 1/ 4" on the right gluteal region above. (vii) One abrasion 1" x 1/4" on the right upper arm above. (viii) One abrasion 1/4" x 1/5" on the right elbow joint lateral surface. (ix) One cut wound 1/4" x 1/4" x 1/ 4" on the left scapular region. (x) One abrasion 1x4" x 1/4" on the left gluteal region above. (xi) One lacerated wound 1.4" x 1/ 4" x 1/4" x on the lateral surface of the left side of the chest above. X-ray advise for this wound and nature of injury was kept reserved. (xii) One lacerated wound 1/5" x 1/ 5" x 1/4" on the left side of the neck. 9. According to the doctor injury nos. 1, 3, 5, 6, 7, 8, 10 and 12 were simple in nature. Injury No.9 was simple in nature but it was caused by sharp cutting instrument. The injury report is Ext.-2. 10. After receipt of the X-ray report the injury no. 9. According to the doctor injury nos. 1, 3, 5, 6, 7, 8, 10 and 12 were simple in nature. Injury No.9 was simple in nature but it was caused by sharp cutting instrument. The injury report is Ext.-2. 10. After receipt of the X-ray report the injury no. 4 was described as grievous caused by hard and blunt substance. 11. On the factum of assault and other overt acts PW 1 has been supported by other two witnesses PWs 1 and 2. I.O. has proved the place of occurrence. But there is consistent evidence that this appellant along with other accused persons who have been acquitted was instrumental in causing various overt acts. The act of the appellant was not in isolation rather it was done allegedly in furtherance of common intention and all other persons in furtherance of common intention and common object have been left out. Once it goes then it cannot be said that the appellant alone was responsible for causing any overt act. The appellant has been acquitted for substantive offence like under section 307 IPC to same set of evidence counted with those accused who have been acquitted by the court below. The case of the appellant cannot be distinguished from those accused persons who have been acquitted. 12. In the result, I am of the view that the impugned judgment of conviction and sentence is bad. Accordingly, it is set aside and this appeal is allowed. The appellant is discharged from the liabilities of his bail bonds.