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2014 DIGILAW 1263 (PAT)

Birju Mahto v. State of Bihar

2014-12-19

ADITYA KUMAR TRIVEDI

body2014
JUDGMENT : Heard learned Amicus Curiae for the appellant as well as learned APP. 2. Sole appellant, Birju Mahto who has been found guilty for an offence punishable under Section 328 IPC and sentenced to undergo RI for five years vide judgment of conviction and sentence dated 12.08.2002 passed by FTC-No.1 Sitamarhi in connection with Sessions Trial No. 119/1998/206/2001, has challenged the same under instant appeal. 3. PW-4, Asha Narain Mahto gave his Fard-e-beyan on 12.12.1996 at about 10:35 a.m. before police official of Sitamarhi P.S. while he was admitted at Sadar Hospital, Sitamarhi after regaining sense disclosing therein that he is employed at Mumbai. In way to his house on 10.12.1996 at about 10:00 p.m., he got down at Mehsaul Bus Stand where he met with Birju Mahto of Village-Bela who requested him to have tea. He was also hungry and on account thereof, they both had gone to a shop lying by the side of Railway Station where they took tea and biscuit. Then thereafter, he felt dizziness and disclosed the same to Birju Mahto who accompanied him to Railway Station and directed him to sleep. He fell asleep. One bag which he was carrying contained cash of Rs.4,000/-, one shirt, one pant and a pair of chappal were found missing when he got awaken on the following morning at about 6:00-7:00 a.m. He also found himself in semi-conscious state. Birju Mahto was also not there. His co-villager, Durga Pd. Mahto took him to Sadar hospital. Bhabhijhan Mahto appears to be FIR attesting witness. 4. Because of the fact that the occurrence took place within the jurisdiction of Darbhanga GRP, accordingly, FIR was sent to Darbhanga GRP for registration and investigation whereupon Darbhanga GRP Case No. 53 of 1996 was registered and after having investigation concluded, charge-sheet was submitted whereupon trial commenced and culminated in a manner subject matter of instant appeal. 5. The defence, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial of occurrence as well as false implication on account of animosity. 6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that he has purposely been implicated in this case at the instance of witnesses who happen to be hostile to the family of brother-in-law of appellant. 6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that he has purposely been implicated in this case at the instance of witnesses who happen to be hostile to the family of brother-in-law of appellant. It has further been submitted that save and except PW-4, none had named the appellant as a culprit. So far evidence of PW-4 is concerned, the same suffers from inherent infirmities. 7. Apart from this, it has also been submitted that prosecution could not be said to be succeeded in proving the charge against appellant for want of non examination of the doctor as well as the I.O.. It has further been submitted that on account of non examination of doctor, the appellant has been found highly prejudiced because of the fact that there happens to be inconsistency amongst the witnesses including PW-4 regarding date of admission of PW-4 to the hospital which could have exposed only after having examination of the doctor. Furthermore, though by way of formal witness, PW-5, the injury report has been brought on record as Ext-1 but for want of examination of doctor, the same cannot be legally taken into consideration. From perusal of the aforesaid injury report, it is evident that it was not going to support the case of the prosecution as the doctor had not concluded that patient/PW-4 was administered any sort of sedative. Therefore, unless there happens to be conclusive evidence on the record to suggest that PW-4 was administered sedative, the allegation against the appellant in terms of Section-328 IPC is found to be absurd. 8. It has further been submitted that on account of non examination of I.O. again the defence has sustained prejudice because of the fact that during course of investigation, perhaps I.O., might have traced out the shopkeeper with whom the informant might have been confronted during sipping tea. It has also been submitted that during course of investigation the I.O. might have collected the instance of litigation amongst the brother-in-law of appellant along with family of informant. 9. It has also been submitted that during course of investigation the I.O. might have collected the instance of litigation amongst the brother-in-law of appellant along with family of informant. 9. It has also been submitted that though on an earlier occasion charges under Section 328 and 379 IPC were framed against the appellant as well as during course of statement he was also confronted on that very score but operative part of judgment speaks that the learned lower court had taken cognizance only for the charge framed under Section 328 IPC and virtually, concluded on that very score holding guilty as well as sentencing the appellant. That means to say, charge under Section 379 IPC vanished from the screen and on account thereof, the motive for commission of the occurrence, even taking into account face of the judgment, has completely been scratched. 10. It has also been submitted that from narration of the Fard-e-beyan as well as evidence of PW-4, it is evident that informant met with the appellant by fluke after getting down from the bus and on account thereof, at least the prosecution would have placed substantial evidence with regard to meeting of appellant with the informant. The conduct of the informant in the aforesaid background is also to be perceived as during course of evidence, he had intentionally developed the case from his initial version with which he has been confronted under para-5 of his deposition. Excluding thereof, no liability would have fastened against the appellant. So submitted that the judgment of conviction and sentence is non sustainable. 11. On the other end, learned APP while refuting submission raised on behalf of appellant submitted that informant happens to be pious in his conduct. He had not attributed anything other than what he faced after meeting the appellant. It was sheer a chance that after getting down from the bus, informant met with appellant and that proved bad luck for him. It has further been submitted that from gist of the evidence of all the PWs, it is apparent that informant was poisoned or some sort of sedative was administered in deceitful manner to remove his belongings whereunder appellant succeeded. So submitted that the judgment of conviction and sentence do not require interference. 12. Section 328 of the IPC reads as follows:- 328. So submitted that the judgment of conviction and sentence do not require interference. 12. Section 328 of the IPC reads as follows:- 328. Causing hurt by means of poison, etc., with intent to commit and offence.--Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 13. By omitting application of Section 379 IPC, furemnial belongings of informant, major part of the occurrence is found completely erased. Now coming to other part, causing hurt, prima facie, the material should have been before the court that a victim was administered any of the substance so identified under Section 328 IPC. Unconsciousness may be caused on account of so many kinds of ailments. So far applicability of Section 328 of the IPC is concerned, that will attract only after having administration of the drugs, poisonous substance, sedative or other items so identified therein and for that, positive evidence should have been on the record to justify administration of any one of the aforesaid items. Due to non examination of doctor, the prosecution is found lacking thereof. 14. Whenever a party comes to the Court for acceptance/recognition of its averments, the burden lies upon him to support its case which Section 101 of the Evidence Act suggests. Therefore, it was incumbent upon the prosecution to prove its case with cogent and reliable evidence that it was appellant who had administered any of the substance so identified under Section 328 of the IPC. For want of doctor, the injury report which happens to be Ext-1 having been proved by a formal witness will not permit its admissibility as it did not fulfil the requirement of Section 32 of the Evidence Act and in the aforesaid background, it looks unsafe to hold that informant PW-4 fell unconscious on account of administration of any of the substance so identified under Section-328 IPC at the end of appellant. So far ocular evidence is concerned, same is not going to support its case as none of the PWs has claimed to be eyewitness to occurrence. Save and except victim, PW-4 whose evidence could not be accepted in the background of exaggeration found during course of evidence from his initial version. 15. Consequent thereupon, the judgment of conviction and sentence recorded by the learned trial court is set aside. The appeal is allowed. 16. Since appellant is on bail, he is discharged from the liability of bail bond. 17. Office is directed to furnish the first and last page of the instant judgment to the learned Amicus Curiae for the needful.