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2008 DIGILAW 693 (JHR)

Banshi Mahato v. State of Bihar

2008-07-07

D.G.R.PATNAIK

body2008
JUDGMENT: D.G.R. Patnaik, J.-This appeal has been filed by the appellants against the judgment and order of conviction and sentence passed by the Addl. Sessions Judge, Jamshedpur, in Sessions Trial No. 87 of 1991 whereby the appellants have been convicted under Sections 304/149 IPC and sentenced to undergo five years imprisonment and further appellants No. 4 and 5 have been convicted also under .Section 323 of the Indian Penal Code and sentenced to undergo imprisonment for three months. 2. The case against the appellants was registered on the basis of a written report of the informant/deceased Gopal Chandra Mahto lodged on 21.9.1983 at 11.30 a.m. at the Jadugora Police Station. The case of the prosecution is that on 21.9.1983 in the morning at about 11.30 a.m., while the informant was obtaining water to his field by digging a drain across the land, the appellants arrived there and diverted the flow of water towards their field by obstructing the drain. The informant and the members of his family objected to such an act of the appellants and in retaliation the appellants, who had arrived there, armed with tangis and iron rods, started assaulting the informant and his men. The informant sustained injury on his parietal region. The matter was reported to the Police Station, Jadugora on 21.9.1983 and on the same day the injured was referred to the Rakha Mines Hospital where he was admitted for medical treatment of his injuries. However, in course of treatment, the informant died at the hospital on 14.10.1983, where-after the offence under Section 302 IPC was added to the offences for which the case was originally registered. 3. The case of the appellants in defence was that it was the informant who had assaulted them causing injuries to one of the appellants Bolai Mahato who had instituted a counter case against the informant party. 4. At the trial, as many as 12 witnesses were examined. PWS 1, 2; 3 and 4 are brothers of the deceased and they have claimed themselves to be eye witnesses to the occurrence. PWS 5, 6 and i are co-villagers and they have claimed to have seen the later part of the alleged occurrence. PWS 8 and 9 also happen to be co-villagers and their evidence is based on hearsay. PWS 1, 2; 3 and 4 are brothers of the deceased and they have claimed themselves to be eye witnesses to the occurrence. PWS 5, 6 and i are co-villagers and they have claimed to have seen the later part of the alleged occurrence. PWS 8 and 9 also happen to be co-villagers and their evidence is based on hearsay. PW 12 is the Doctor who has proved the injury report which was prepared at the time of examining the injured/deceased after he was admitted to the hospital. PW 10 is the doctor who has proved the post mortem report and has expressed his opinion regarding the cause of death of the deceased by concurring with the opinion of the doctor who had originally conducted the post mortem examination. 5. The trial court, on considering the evidence on record, has relied on the testimonies of PWS 1 to 4 and finding support from the testimonies of PWS 5 and 6 besides the evidence of the doctor and the injury report of the deceased, has recorded its finding that the appellants formed an unlawful assembly, armed with tangis and iron rods, and in prosecution of their common object, inflicted injuries on the head of the deceased which subsequently proved fatal. The trial court, however, has concluded that the evidences of the witnesses on record do not make out a case of culpable homicide amounting to murder, and its finding that the appellants are not guilty of offence under Section 302 IPC. The trial court nevertheless recorded its finding that the acts of the appellants make out the offence punishable under Section 304 Part-I of the Indian Penal Code. 6. Learned counsel for the appellants while assailing the impugned judgment of conviction and sentence raises the following grounds:- (i) though the witnesses claim that the deceased was assaulted with iron rod on his head, but admittedly the injured did not succumb to his injuries soon after he sustained the injuries. Rather, he survived for about 23 days after the alleged date of the occurrence and died at the hospital on account of infection of his wound. Rather, he survived for about 23 days after the alleged date of the occurrence and died at the hospital on account of infection of his wound. The doctor who had conducted post mortem examination on the dead body of the deceased has not been examined and therefore there is no conclusive opinion of the legal expert regarding the cause of death of the deceased; (ii) the prosecution witnesses have admitted that in respect of the same occurrence, appellant Bolai Mahato had instituted a counter case in respect of the injuries caused to him by the members of the informant party; (iii) the witnesses i.e. PWS 1 and 2 have claimed to be material witnesses, but they have contradicted each other regarding the genesis of the occurrence; (iv) non-examination of the investigating officer has caused serious prejudice to the appellants in their defence, inasmuch as several contradictions appearing in his statements made by PW 1 at the trial as compared to his earlier statement before the investigating officer, could not be brought on record on account of non-examination of the investigating officer; (v) the trial court has erred in placing reliance on the testimonies of PWS 1, 2, 3 and 4 despite the fact that they are near relations of the deceased are interested witnesses. 7. Learned counsel for the State, on the other hand, while supporting the impugned judgment of conviction and sentence of the appellants submits that as many as four eye witnesses have deposed regarding the occurrence and their evidence is consistent not only in respect of the genesis of occurrence, but also as to the manner of occurrence and assault made by the appellants besides the weapons used in inflicting the head injury on the deceased. Learned counsel adds that merely because the witnesses are related to the deceased, their evidence cannot be brushed aside, as being partisan. It is further submitted that the evidence of the prosecution witnesses including PWS 5 and 6 regarding the manner of occurrence and the nature of injury and the weapons used is corroborated by the post mortem report as also the medical evidence of the doctor PW 12 who had examined the injuries of the deceased at the hospital. Non-examination of the investigating officer, according to the learned counsel, does not cause any prejudice to the appellants in their defence. 8. From perusal of the impugned judgment. Non-examination of the investigating officer, according to the learned counsel, does not cause any prejudice to the appellants in their defence. 8. From perusal of the impugned judgment. it appears that the trial court has placed reliance on the testimony of PWS 1 to 4 accepting their testimonies as of eye-witnesses account of the occurrence. It also appears that admittedly, the presence of these witnesses at the place of occurrence at the relevant time has also been admitted by the appellants by virtue of the fact that in the FIR of the counter case, the presence of these witnesses has been admitted. This being the fact, these witnesses are natural witnesses to the occurrence and merely because they happen to be the near relations of the deceased, their testimonies cannot altogether be ignored or brushe9 aside. However, subjecting their testimonies to a careful scrutiny, the trial court found that their evidence finds corroboration from the medical evidence of the doctor PW 12, who has mentioned the presence of two lacerated injuries on the head of the injured/ deceased, besides an abrasion on the head and contusion on both the hips. The trial court has found that the evidences of PWS 1, 2, 3 and 4 find support in material particulars by virtue of evidence of PWS 5 and 6. Both of them have categorically stated that the appellants, armed with tangis and iron rods, had arrived at the place of occurrence and had assaulted the deceased and PW 2, Jagdish Mahato. 9. As regards the medical opinion regarding the cause of death of the deceased, it appears that the prosecution could not examine the doctor who had conducted autopsy on the dead body of the deceased due to the fact that the doctor was not available due to his transfer. The prosecution therefore examined another doctor who is also a forensic expert and acquainted with the handwriting of the doctor who had recorded the post mortem report. Besides providing the post mortem report in evidence, the doctor has affirmed that going by the observations recorded in the post mortem report regarding the nature of injuries, he concurs with the opinion of the doctor who had conducted post mortem on the dead body of the deceased that the injury found on the head of the deceased was the cause of the victim's death. The opinion of the doctor is relevant and admissible as expert opinion. 10. Learned counsel for the appellants would argue that though the written report, initially treated as the FIR was subsequently treated as the dying declaration of the deceased, but the details of the cirum-stances leading to the cause of death of the deceased have not been specified in the written report, nor does it record that the deceased had sustained head injury on account of assault by Sambal (iron rod). It is true that the original written report does not contain the details of the occurrence including the material particulars, but the FIR need not contain such intricate details. Even if the written report is not treated as the dying declaration of the deceased, yet, the testimony of the eye witnesses offer adequate evidence to fill up the details sought for in the written report and the guilt of the appellants can be inferred from the testimonies of the eye witnesses. 11. As regards the purported contradiction in the testimonies of PWS 1 and 2, it appears that the contradiction is in respect of the nature of the disputed land. While one witness has deposed that it was a Government land, the other has claimed it to be the private property of the deceased. This is in the nature of a minor contradiction which in itself does not cause any dent in the broad aspects of the prosecution case. There is consistency in the testimony of both these witnesses on material particulars and on the broad aspects of the case. 12. As regards non-examination of the investigating officer, it appears that the attention of PW 1 was invited to certain statements made by him at the trial which he had omitted to make before the investigating officer. It appears that the purported contradictions are concerned with minor issues relating to the nature of the land under dispute and the conversation between PW 1 and the appellants regarding the diversion of flow of water. No contradiction has been elicited from this witness regarding the manner of occurrence and the genesis of occurrence. This witness in his evidence has offered full support to the facts related to charges framed against the appellants. There is thus no material to indicate that the non-examination of the investigating officer has caused any prejudice to the appellants in their defence. 13. This witness in his evidence has offered full support to the facts related to charges framed against the appellants. There is thus no material to indicate that the non-examination of the investigating officer has caused any prejudice to the appellants in their defence. 13. The trial court has discussed the evidences on record and has record its reason for arriving at the findings. I do not find any infirmity, irregularity or illegality in the findings of the trial court. 14. There being no merit in this appeal, and therefore, this appeal is dismissed. The conviction and sentence of the appellants as recorded by the trial court is confirmed. 15. The appellants are on bail. Their bail bonds are cancelled and they are directed to surrender themselves before the trial court forthwith to serve their sentences. The trial court is directed to take all necessary steps to secure the attendance of the appellants, so that they may undergo the sentence awarded to them by the trial court.