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2014 DIGILAW 52 (PAT)

Ram Chandra Mahto v. State of Bihar

2014-01-13

AKHILESH CHANDRA

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JUDGMENT Akhilesh Chandra, J. 1. Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State. 2. This appeal has been preferred by the appellants against judgment dated 1.5.2002 passed by learned 2nd Additional Sessions Judge (F.T.C.), Madhubani, in Session Trial No. 96/87/62/2002 arising out of Barahi P.S. Case No. 75 of 1985, G.R. No. 801 of 1985, holding appellant No. 1 guilty for the offences under Section 304, Part-II of the Indian Penal Code and remaining appellants under Section 304, Part-II read with 149 of the Indian Penal Code, but all sentenced to undergo rigorous imprisonment for ten years, further, appellants No. 3 and 5 guilty for the offences under Section 148 of the Indian Penal Code and awarded rigorous imprisonment for two years. Appellant Nos. 2, 7 to 11 and 13 to 17 for the offences under Sections 323, 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year each for both the offences and appellant No. 4 & 6, even further held guilty for the offences under Sections 148 and 324 and awarded to undergo rigorous imprisonment for two years each. All the sentences are to run concurrently. 3. The prosecution has come out with a case, as is evident from Exhibit-6, a written application of Kari Mahto (PW 1) dated 31.5.1995 that there was a caste panchayat to resolve the dispute between one Ram Lakhan Mahto (D.W.3) and his wife Bhalsaria Devi (D.W.1), wherein the punches were Lal Bahadur Mahto (PW 10), Laxmi Mahto (PW 3), Ram Swaroop Mahto (PW 4), and Achhay Lal Mahto, Raj Kumar Mahto, Nathuni Mahto (none of the above are examined) besides 100 more persons. 4. The entire Panchayati proceedings was concluded peacefully and the findings was accepted by the parties but after preparation of paper during signatures thereon, suddenly all the miscreants including the appellants came out with deadly weapons from nearby shop and on instigation of Janak Mahto (deceased accused) and Upendra Mahto both armed with pistol, Ram Chandra Mahto (appellant No.1) armed with farsa assaulted Ram Prasad Mahto, the deceased, who became senseless and continued so in spite of getting preliminary medical facilities. Dhani Ram Mahto (appellant No.4) gave farsa blow to Laxmi Mahto (PW 3), Mahendra Mahto (appellant No 6) also gave farsa blow upon Ram Sundar Mahto, Gangai Mahto (appellant No.12) gave farsa blow upon Umesh Mahto (PW 2) besides the above Janak Mahto and Upendra Mahto aimed their pistol at Lal Bahadur Mahto (PW 10) and from the shop took away cloths and other articles worth Rs. 2000. The above named appellants also assaulted Sampat Mahto and Basudeo Mahto (none examined) and the informant by means of lathi and the occurrence has been seen besides the above punches Ram Lakhan Mahto (not examined), Asarfi Mahto (PW 5) and Rameshwar Mahto (PW 4) and all the injurds were initially treated by Dr. Ajay Kumar Singh of Khutauna and thereafter brought to police station on Bullock Cart. This written report was ascribed by Lal Bahadur Mahto (not examined) but signed by the informant whose signature is marked as Exhibit-1. Altogether 12 witnesses were examined besides producing the following documentary evidence which reads as such:- Exhibit 1 - Signature of PW 1. Exhibit 2 - P.M. Report. Exhibit 3 to 3/6 - Seven injury report. Exhibit 4 to 4/3 - Four requisitions. Exhibit 4/4 to 4/6 - 2 requisitions. Exhibit 5 - Formal F.I.R. Exhibit 6 - written application of Lal Bahadur Mahto. Exhibit 7 - Fardbeyan written by A.S.I. L.N. Singh. Exhibit 8 - Para 1 to 11 of C.D. 5. The Defence has also produced following documentary evidence which reads as such:- Exhibit - A - C.C. of Judgment of CR-535/82. Exhibit - B - Medical certificate of Ram Chandra Singh dated 9.6.1985 written by Dr. B.K. Sinha. Exhibit - C - Prescription report of Ram Chandra Singh dated 28.5.1983 issued by Dr. B. K. Sinha. Exhibit - C/1 to C/4 - Prescription report of Ram Chandra Singh dated 30.5.1985 by Dr. B.K. Sinha and 31.5.1985 all are issued by Dr. B.K. Sinha. 6. It is contended by learned counsel for the appellant that in spite of the prosecution version that the injurds were initially treated by Dr. Ajay Kumar. and thereafter in the hospital but for the reasons unexplained none of the doctors have been produced, though the injury reports said to be granted by them have been marked as Exhibits 3 to 3/6 by Mahachandra Jha (PW 11) an advocate clerk. Ajay Kumar. and thereafter in the hospital but for the reasons unexplained none of the doctors have been produced, though the injury reports said to be granted by them have been marked as Exhibits 3 to 3/6 by Mahachandra Jha (PW 11) an advocate clerk. On the basis whereof it is vehemently argued that offence under Sections 323 and 324 of the Indian Penal Code cannot be held established and learned Additional Public Prosecutor also conceded to the legal position. 7. As per prosecution version one of such injurds is Ram Prasad Mahto who subsequently died on 23.7.1985 i.e. roughly after a month and 23 days of the occurrence has also recorded his fardbeyan which has been relied upon by the prosecution and marked as Exhibit-7 recorded on 10.6.1985 at about at about 12.00 noon at D.M.C.H. as an indoor patient by ASI (not examined) and he in his statement specifically stated about the panchayati called upon him under the leadership of Mukhiya (PW 10) and Serpanch Laxmi Mahto (PW 9) besides other 25 to 30 panches (not examined), and suddenly by the time panchayati being concluded assaulted him inflicting injuries due to which he lost his senses and only after regaining he could be able to made his statement (Ext.7). 8. On the basis of the above, it is submitted that the deceased if assaulted, was assaulted by the panches not by the appellants who as per prosecution version arrived after conclusion of the panchayat and were not in picture in any way prior to it and it was the deceased who is competent to name his assailants but for no reasons explained he has not named either of the appellants, thus, they cannot be held guilty for his death which occurred after little less than two months of the alleged occurrence. 9. In face of the above materials as stated there appears no reason to go into further details since learned Additional Public Prosecutor also could not be able to, in spite of his best efforts, point out anything from the judgment of the trial Court meeting such circumstances with valid reason. 10. Having regard to the facts and circumstances, conviction and sentence of the appellants appears not sustainable. Hence, it is set aside and the appeal is hereby allowed, and they are set free from the liabilities of the respective bail bonds furnished on their behalf. 10. Having regard to the facts and circumstances, conviction and sentence of the appellants appears not sustainable. Hence, it is set aside and the appeal is hereby allowed, and they are set free from the liabilities of the respective bail bonds furnished on their behalf. Appeal allowed.