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2013 DIGILAW 1368 (PAT)

Baij Nath Mahto v. State of Bihar

2013-12-03

ANJANA PRAKASH

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JUDGMENT Anjana Prakash, J. 1. The appellants have been convicted under Section 326/34, IPC and sentenced to R.I. for five years by a judgment dated 11.4.2000 and 13.4.2000 passed by the 4th Additional Sessions Judge, Chapra in Sessions Trial No. 94 of 1984. 2. The case of the informant Etwarchan Mahto is that on 9.4.1982 while he was collecting bricks for getting the veranda of his house constructed, the accused Baijnath Mahto came there and told him not to collect the bricks. An altercation arose between the two, whereafter Baijnath Mahto went to his house and came back with a farsa and assaulted the informant, which caused injury on the head. Thereafter the accused Suresh Mahto also assaulted with a Dab on his hand. When the informant raised an alarm his brother Sheo Nandan Mahto came there, who was assaulted by Suresh Mahto with a Dab on his head and by Baijnath Mahto on his hand by farsa. When witnesses Baleshwar Mahto and Shrikishun Mahto came, they were also assaulted by their weapons. They fled away after the assault. 3. During trial the prosecution examined seven witnesses in support of the allegations. PW 5 Etwarchan Mahto is the informant of the case. He repeated the allegations that he had leveled in the First Information Report without much of change. He stated that witnesses Sheo Nandan Mahto and Nagina Mahto also injured in the transaction were dead. 4. PW 1 Baleshwar Mahto corroborated the statement of the informant and PW 5 stated that the accused had assaulted the informant and thereafter him by means of farsa and Dab. 5. PW 2 Shrikishun Mahto, PW 3 Beni Mahto and PW 4 Harendra Mahto have further corroborated the prosecution story. PW 6 Dr. Praveen Kumar examined the four injured persons on the said date. On examination of the informant Etwarchan Mahto he found one lacerated simple wound on his head and that on PW 2 Shrikishun Mahto a grievous wound and a simple injury and that on PW 1 Baleshwar Mahto he found one incised grievous wound and four simple injuries and on the person of Sheo Nandan Mahto, now dead, some injuries which are now not relevant. 6. PW 7 Arun Prasad is a formal witness. 7. 6. PW 7 Arun Prasad is a formal witness. 7. I find from the evidence of the witnesses that even though the prosecution had stated that the occurrence had taken place on 9.4.1982 at 5.30 p.m. but the doctor examined the injuries at 5.20 itself i.e. before the alleged occurrence, whereas the Hospital is located only, 1/4 kilometer away from there. Further the place of occurrence is also seriously in doubt since there was no construction on the veranda of the informant. The fact that the informant was collecting the bricks from the portion of appellants is well borne out from the evidence of the witnesses. I also find that the prosecution witnesses No. 1, 2 and 5 are related to each other and naturally interested witnesses. The parties belong to different branches of the common ancestors and the dispute between them with regard to land in question was coming from before and hence in this background it would be highly unsafe to rely on the prosecution evidence in its entirety without the examination of the Investigating Officer, who could be the only independent witness. 8. Hence, the appeal is allowed and the order of conviction and sentence passed against the appellants on 11.4.2000 and 13.4.2000 by the 4th Additional Sessions Judge, Chapra in Sessions Trial No. 94 of 1984 is set aside. The appellants are discharged from the liabilities of their respective bail bonds. Appeal allowed.