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2013 DIGILAW 269 (PAT)

Ram Khelawan Mahto v. State of Bihar

2013-02-27

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (ORAL) Hemant Kumar Srivastava, J. Heard learned counsel for the appellants as well as learned Additional Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 25.01.2001 passed by Sri Uday Kant Thakur, 2nd Additional Sessions Judge. Madhubani in Sessions Trial No. 76 of 1986 by which and whereunder he convicted the appellants No. 1 and 2 for the offences punishable under Sections 148 and 323 of the Indian Penal Code and accordingly, both the aforesaid appellants were sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 148 of the Indian Penal Code and to undergo rigorous imprisonment for six months for the offence punishable under Section 323 of the Indian Penal Code whereas rest appellants were convicted for the offences punishable under Sections 147 and 323 of the Indian Penal Code and accordingly, they were sentenced to undergo rigorous imprisonment for six months for the offence punishable under Section 323 of the Indian Penal Code and to undergo rigorous imprisonment for six months for the offence punishable under Section 147 of the Indian Penal Code. However, all the sentences were ordered to be run concurrently. 3. The brief fact, which lies to me this criminal appeal is that PW 8 (wrongly mentioned in the deposition as PW 7) Jivach Sail gave his fardbeyan to S.I., J.N. Pandey of Madhepur Police Station on 10.06.1982 at about 09:00 p.m. in injured condition at Madhepur hospital to this effect that on the same day at about 07:00 p.m. while he was sitting near his door with intent to urinate, appellants along with one Govind Mahto being armed with farsa, lathi, solha etc. came there and started assaulting him. He further stated that accused. Govind Mahto and appellant No.1, namely. Ram Khelawan Mahto gave farsa blow to him whereas appellant No.2, Ramautar Mahto appellant No. 4. Kishun Mahto, appellant No. 9. Siya Ram Mahto started raining lathi on him and when he fell down on the earth appellant No. 8 also gave lathi blow on his leg. He raised alarm which attracted Sitaram Mahto, Jageshwar Mahto and Baudhu Mahto. The appellants and accused, Govind Mahto were uttering to kill him. Kishun Mahto, appellant No. 9. Siya Ram Mahto started raining lathi on him and when he fell down on the earth appellant No. 8 also gave lathi blow on his leg. He raised alarm which attracted Sitaram Mahto, Jageshwar Mahto and Baudhu Mahto. The appellants and accused, Govind Mahto were uttering to kill him. He further stated that reason behind the aforesaid occurrence is said to be a proceeding under Section 107 of the Cr.P.C. pending between accused Govind Mahto and Jayram Mahto and in the aforesaid proceeding he had deposed as witness. He further stated that after the alleged occurrence he was taken to hospital where his treatment was done. 4. On the basis of aforesaid fardbeyan, Madhepur P.S. Case No. 94 of 1982 under Sections 147, 148, 149, 324, 325, 307 and 323 of the Indian Penal Code was registered and accordingly, formal first information report was drawn. After completion of investigation charge-sheet for the offences punishable under Section 307 and other minor sections of the Indian Penal Code was submitted and subsequently cognizance was taken and the case was committed to the Court of Sessions in usual way. 5. First information report named accused, Govind Mahto died before commence of the trial and accordingly all the appellants were put on trial and they were charged for the offences punishable under Sections 307/149 of the Indian Penal Code and furthermore, appellant No. 8, Lakhan Yadav @ Ram Lakhan Yadav was, separately, charged for the offence punishable under Section 325 of the Indian Penal Code, appellant No. 2, Ramautar Mahto was separately charged for the offences punishable under Sections 324 and 148 of the Indian Penal Code and similarly, appellant No. 1. namely. Ram Khelawan Mahto was separately charged for the offences punishable under Sections 324 and 148 of the Indian Penal Code. Furthermore, all the appellants except appellants No. 1 and 2 were jointly charged for the offences punishable under Sections 323 and 147 of the Indian Penal Code. The charges were read over and explained to the appellants to which they denied and claimed to be tried. 6. In course of trial altogether eleven prosecution witnesses were examined and prosecution got exhibited first information report as Exhibit-1 and fardbeyan as Exhibit-2. The statements of appellants were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. The defence also examined one witness. 7. 6. In course of trial altogether eleven prosecution witnesses were examined and prosecution got exhibited first information report as Exhibit-1 and fardbeyan as Exhibit-2. The statements of appellants were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. The defence also examined one witness. 7. The learned trial Court having relied upon the testimony of prosecution witnesses passed the impugned judgment of conviction and sentence order in the manner as stated above. 8. Learned counsel Sri Ranbir Singh appearing for the appellants as amicus curiae assailed the impugned judgment of conviction and sentence order submitting that the learned trial Court did not appreciate the materials available on the record in right perspective and failed to consider this fact that there was long Standing enmity between the parties and the aforesaid case was brought by PW 8 on account of above stated enmity. He further submitted that all the prosecution witnesses are interested and partisan witnesses and therefore the learned trial Court committed error in relying upon the evidence of prosecution witnesses. He further submitted that Investigating Officer and doctor were not examined in this case and therefore a serious prejudice was caused to the appellants. 9. On the other hand learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that not only injured, PW 8 but also other witnesses supported the factum of assault as well as forming of unlawful assembly and, therefore, the learned trial Court rightly convicted and sentenced the appellants in the manner as stated above. 10. On perusal of record, I find that PW 1, PW 2, PW 4, PW 6, PW 7, PW 8, PW 9 and PW 10 are the witnesses on the point of occurrence and all the aforesaid prosecution witnesses claimed themselves to be eye-witness of the alleged occurrence. Furthermore, all the above stated prosecution witnesses stated that appellants being armed with lethal weapons came near the door of PW 8 and assaulted him mercilessly. 11. Admittedly, prosecution did not produce the doctor, who had examined PW 8 after the alleged occurrence nor any injury report was brought on the record. Furthermore, all the above stated prosecution witnesses stated that appellants being armed with lethal weapons came near the door of PW 8 and assaulted him mercilessly. 11. Admittedly, prosecution did not produce the doctor, who had examined PW 8 after the alleged occurrence nor any injury report was brought on the record. It is specific case of PW 8 that appellants assaulted him with several weapons and he sustained injuries by the aforesaid weapons but in absence of injury report as well as deposition of doctor who had examined PW 8 after the alleged occurrence, it is very difficult to come on this conclusion that PW 8 had sustained injuries by any weapon. No doubt, to prove the charge for the offence under Section 323 of the Indian Penal Code, the injury report is not essential but in a case in which it is specifically asserted that injured sustained injury by a weapon, the injury report plays a very important role. 12. In the instant case, when prosecution could not succeed to prove this fact that as to by which weapon the PW 8 sustained injury, in my view, non-examination of doctor was fatal to the prosecution case and the appellants could not have been convicted even under Section 323 of the Indian Penal Code. Furthermore, in the aforesaid circumstance, the appellants No. 1 and 2 could not have been convicted for the offence punishable under Section 148 of the Indian Penal Code because there is nothing on the record to corroborate this fact that the appellants No. 1 and 2 were carrying weapons in their hands at the time of alleged occurrence, except oral statements of prosecution witnesses and therefore, I am of the opinion that prosecution could not succeed to prove charge framed under Section 148 of the Indian Penal Code against the appellants No. 1 and 2. 13. So far as Section 147 of the Indian Penal Code is concerned in my view when the prosecution could not succeed to prove the story of assault the appellants could not have been convicted under Section 147 of the Indian Penal Code also. 14. 13. So far as Section 147 of the Indian Penal Code is concerned in my view when the prosecution could not succeed to prove the story of assault the appellants could not have been convicted under Section 147 of the Indian Penal Code also. 14. On the basis of aforesaid discussions, I am of the opinion that the learned trial Court committed error in convicting and sentencing the appellants and accordingly this criminal appeal is allowed and impugned judgment of conviction as well as sentence order dated 25.01.2001 passed by 2nd Additional Sessions Judge. Madhubani in Sessions Trial No. 76 of 1986 are, hereby set aside. All the appellants are on bail. They are discharged from the liabilities of their respective bail bonds. Appeal allowed.