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2023 DIGILAW 1265 (JHR)

Lampat Bauri v. State of Jharkhand

2023-10-17

SANJAYA KUMAR MISHRA

body2023
JUDGMENT : 1. The appellant-Lampat Bauri has assailed his conviction under Section 307 and 324 of the Indian Penal Code, 1860, (hereinafter referred to as ‘Penal Code’ for brevity) for attempting to commit murder of Suchand Mahto by inflicting knife blow in his abdomen causing bleeding injury and also injuring Santosh Kumar Mahto with knife causing bleeding in his hand in S.T. No. 673 of 1994 as per judgment dated 28.01.2003 of the learned Additional District and Sessions Judge, Fast Track Court-4, Bokaro. The appellant has been sentenced to undergo rigorous imprisonment for seven years for the offence under Section 307 of the Penal Code and also rigorous imprisonment for one year under Section 324 of the Penal Code. Both the sentences were directed to run concurrently. 2. The appellant was on bail. The appellant is missing for about 12 years. He was not found as per execution report dated 20.03.2019. 3. The case of the prosecution in short is that on 26.03.1994 at about 12:30 hours Anjana Kumari, daughter of Trilochan Bouri of village Kumardaga, Tola Simultard, P.S. Pindrajora was watching her wheat crops. In the meantime, the appellant came there and started quarrelling with her. Informant Santosh Kumar Mahto and Suchand Mahto intervened and asked him not to quarrel with the girl at which accused started abusing them. The appellant immediately rushed to his house and came with a knife and he assaulted the informant Santosh Kumar Mahto in his right hand and also assaulted Suchand Mahto in his chest by inflicting knife blow. The informant received injury in his right arm and Suchand Mahto received injury on left side of the chest. The villagers reached there and took the injured to Police Station where F.I.R. was lodged by the informant Santosh Kumar Mahto. The case was registered under Sections 326/307 of Penal Code against the appellant-Lampat Bauri bearing Pindrajora P.S. Case No. 26/94 dated 26.03.1994. The injured were taken to hospital for treatment. The doctor found incised would in the left forearm of Santosh Kumar Mahto and incised wound by sharp cutting weapon in the right lateral chest wall of Suchand Mahto, which are grievous in nature. After investigation chargesheet was submitted against the appellant under Sections 307/326 of the Penal Code and cognizance was taken by the learned Chief Judicial Magistrate, Bokaro accordingly. After investigation chargesheet was submitted against the appellant under Sections 307/326 of the Penal Code and cognizance was taken by the learned Chief Judicial Magistrate, Bokaro accordingly. After compliance of provision of Section 207 Cr.P.C. the case was committed to the court of Sessions. On 11.11.1997, the case was opened and charge under Sections 324/326/307 of the Penal Code was framed against the appellant. 4. The appellant pleaded not guilty and claimed to be tried. In defence he denied the allegations and claimed himself to be innocent. 5. In order to prove the case, the prosecution has examined altogether nine witnesses. P.W.-4-Santosh Kumar Mahto is injured and also the informant of the case, P.W.-7-Suchand Mahto is the victim and eye witness. It is his life the appellant made an attempt to murder, P.W.-6 is Anjana Kumari and eye witness, P.W.1 is Shiv Charan Mahto, P.W.-2 is Trilochan Mahto, P.W.-3 is Phanibhushar Mahto, P.W.-5 is Ramanath Mahto, P.W.-8 is Dr. Avanish Kumar Singh and P.W.-9 is Kisto Mahto. 6. Learned Amicus, Mr. Lukesh Kumar, would submit that since the record reveals that the appellant is absconding for more than seven years and has not been heard of he has been suffered a civil death and the appeal should abate. 7. It is not disputed that as per the report dated 20.03.2019 submitted by the concerned police that the appellant is missing for about 12 years. The question that arises now is whether in a criminal appeal such a finding can be given about civil death of the appellant. The Hon’ble Supreme Court examined similar question in cases under Workmen’s Compensation Act, 1923, in the case of Oriental Insurance Company Limited Vs Sorumai Gogoi and others, (2008) 4 SCC 572 and at paragraph 18 has held that Sections 108 and 109 of the Evidence Act, 1872 are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until contrary is established by evidence either direct or circumstantial. The Hon’ble Supreme Court further laid down that the said provisions can be invoked in a legal proceeding where the death of a person may be an issue. It is further held, the section does not say that presumption would be applicable in all situations. The Hon’ble Supreme Court further laid down that the said provisions can be invoked in a legal proceeding where the death of a person may be an issue. It is further held, the section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice or evades a trial or is otherwise charged for commission of a grave offence as he in that situation may not communicate with his relations. Furthermore, in a case of such nature, it is also difficult to rely upon self-serving statements made by the claimants. This observation of the Hon’ble Supreme Court is clearly applicable to a criminal proceeding especially before the appellant court. It is seen that the appellant was on bail during course of the trial and then after conviction and upon appeal he was granted bail and thereafter, he misused the liberty granted to him and has been absconding for more than 15 years. 8. Section 108 does not permit the criminal court to come to conclusion that he has suffered civil death because his whereabouts are not found. Such issue can be decided by a court in which the civil death of a deceased or the party concerned is an issue. Similar view has been taken by Patna High Court in the case of Sunita Roy Choudhary Vs Jageshwar Choudhary, 2006 0 Supreme (Pat) 454, wherein the Single Bench of Patna High Court has held that these provisions do not by itself declare a person to be alive or dead. The finding is to be arrived in a duly constituted suit and upon shifting of burden of proof in one contingency or the other the Court is to give such a declaration and finding. Holding this, the Patna High Court held that the District Judge is incompetent to make a declaration with regard to a person whether he was dead or not and further even if Section 108 of the Evidence Act is pressed into service, the only presumption that can arise is that a person may be dead, but when he died cannot be ascertained. It is these facts which give the jurisdiction to the District Judge to proceed in the matter and it is not that the District Judge would decide the matter and then assume jurisdiction. It is these facts which give the jurisdiction to the District Judge to proceed in the matter and it is not that the District Judge would decide the matter and then assume jurisdiction. The High Court of Calcutta in the case of Narayan Nayak Vs State Bank of India, 2002 0 Supreme (Cal) 2, has taken slightly different view. In any case the facts of the case are to be considered before holding a person to have suffered civil death. Thus, it is clear that when the question before the court is that whether a man is alive or not and he has not been heard for seven years then the ownership shifted to other party to prove that he is alive. Thus, it is not an enabling Section rather a mixed provision of presumption and shifting of burden of proof. When in a proceeding a person have not been heard or seen for seven years then for deciding the issue whether he is dead or alive, the burden would be shifted to the other parties to establish that he infact is not dead and in that case in absence of cogent evidence the court may presume that he is dead. This is not the case here. In this case, a person availed the benefit of provision of grant of bail pending appeal against his conviction and during pendency of the appeal, he has absconded. In such situation, it would not be expedient in the interest of justice to press into service of the provisions Section 108 of the Evidence Act and declare him to be a dead person and thereby, abate the appeal. 9. In order to examine whether the prosecution has proved its case beyond reasonable doubt it is essentially for this Court to examine the evidences of the Doctor at the outset. 10. P.W.8 Dr. Avanish Kumar Singh is the doctor who has examined the injuries of Santosh Kumar Mahto on 26.03.1994 about 8:20 P.M. He found one incised wound 2”x1/2” X skin deep over upper medial border on the left forearm of Santosh Kumar Mahto. The injury was simple in nature. The injury report of Santosh Kumar Mahto has been marked Exhibit-2. He has examined Suchand Mahto at 8:00 PM on 26.03.1994. He found one incised wound 3”x ½” X left thoracic cavity deep over infra axillary region of the left lateral chest wall. The injury was simple in nature. The injury report of Santosh Kumar Mahto has been marked Exhibit-2. He has examined Suchand Mahto at 8:00 PM on 26.03.1994. He found one incised wound 3”x ½” X left thoracic cavity deep over infra axillary region of the left lateral chest wall. The incised penetrating wound caused by sharp edged and pointed object. The patient was critically wounded according to the doctor. The injury was grievous in nature. Thus, it is clear from the evidence of this witness which has though subjected to cross examination has not been diminished as far as main testimony is concerned that Suchand Mahto had sustained a grievous injury on left thoracic cavity deep over infra axillary region of the left lateral chest wall. Thus, it is clear that he has found injury on infra axillary region of the left lateral chest wall and the injury was thoracic cavity deep. He has also found incised injury on the left forearm of Santosh Kumar Mahto. Thus, it is clear that the medical evidence in this case shows that both the victim and the injured has sustained injuries as described above. The other question that is to be determined here is whether the prosecution has proved the involvement of the appellant in the aforesaid incident. 11. In order to determine whether the conviction is correct or incorrect, it is appropriate on our part to examine the statement of witnesses made on oath in the presence of the trial judge under his direct supervision. 12. P.W.7 Suchand Mahto is victim of the occurrence. He has stated that on 26.03.1994 which was Saturday, at about 12:30 hours, he was in his tomato field. There was dispute between Anjana Kumari and Lampat Bouri. Seeing them quarreling he along with Santosh Kumar Mahto reached near the place of occurrence and asked the accused not to quarrel with Anjana Kumari. The appellant started abusing them and went to his house and after some time he came with a knife and inflicted a knife blow in the right hand of Santosh Kumar Mahto. When he tried to save himself he received a knife blow in the left side of his abdomen. Receiving the injury he fell down on the ground. There was profused bleeding from his injury. When he tried to save himself he received a knife blow in the left side of his abdomen. Receiving the injury he fell down on the ground. There was profused bleeding from his injury. Trilochan Mahto and Phanibhushan Mahto took him to his house and subsequently, to the police station and then to hospital for treatment. The appellant had intention to kill him. In his cross examination, he supported the prosecution case. According to him about 3” of the knife pierced in the body. P.W.-2 Trilochan Mahto and P.W.-3 Phanibhushan Mahto reached just after the stabling incident and they saw oozing of blood from his wounds. He was not unconscious at that time. He was taken to police station on a cart and then referred to hospital for treatment and then shifted to B.G.H., Bokaro for better treatment. 13. P.W.4 Santosh Kumar Mahto is the informant of this case. He has fully supported the case of the prosecution and has narrated the entire story as has been stated in the F.I.R. He has stated that on quarrel with Anjana Kumari, the appellant rushed to his house and came with Chura and gave chura blow causing injury to Suchand Mahto and Santosh Mahto. This witness has proved the written report which has been marked Exhibit-1. In his cross-examination he has stated that his cattle were grazing near the wheat field and he was present there. He has described the size of the knife used by the appellant which was 12” in length having one side sharp edge. Suchand was seriously injured and was taken to the house and then he was taken to the police station. 14. P.W.6 Anjana Kumari, an eye witness, has also supported the prosecution case. On quarrel, the appellant went to his house and returned back with a knife and gave a knife blow to Santosh Kumar Mahto causing injury in his right hand. He also inflicted knife blow in the abdomen of Suchand Mahto, who fell down after receiving the injury. She also stated that just after the occurrence, she went to her house and narrated the story to her family members. Blood was oozing out from the injuries of Suchand Mahto and Santosh Mahto. The appellant had gone to the house of both the victims with a knife in the evening and threatened them. She also stated that just after the occurrence, she went to her house and narrated the story to her family members. Blood was oozing out from the injuries of Suchand Mahto and Santosh Mahto. The appellant had gone to the house of both the victims with a knife in the evening and threatened them. In her cross-examination she stated that at the time of occurrence she was unmarried and subsequently, she got married. Both the victims Suchand Mahto and Santosh Kumar Mahto are her uncles. She has corroborated the entire prosecution story as stated in the F.I.R. 15. P.W.1 Shiv Charan Mahto has stated that he was watching his goat grazing near the wheat field of Mukteshwar Mahto on the alleged date and time of occurrence. The goats of Lampat Bouri entered into the wheat field. Anjana Kumari was taking care of her wheat crops so she removed the goats of the appellant-Lampat Bauri from the field at which the appellant started abusing her and assaulting her. Santosh Mahto who was grazing his cattle asked the appellant not to quarrel with Anjana Kumari. Suchan Mahto was also there. The appellant became furious and abused Santosh Mahto. The appellant rushed to his house and came with a knife (Chura) and inflicted a Chura blow to Suchand Mahto just below the left side of his chest and in the right hand of Santosh Mahto. Suchand Mahto and Santosh Mahto received bleeding injury. This witness has described the size of Chura, used by the appellant in course of his cross-examination. He has stated that Suchand became unconscious after receiving the injury and his clothes were stained with bloods. Suchan Mahto was taken to his house and he regained his sense after half an hour. 16. P.W.2 Trilochan Mahto while repeating the same story, has also stated that the appellant went to his house and brought a knife (Chura) from the house and assaulted the informant Santosh Kumar Mahto and his companion Suchan Mahto with Chura. Suchan Mahto received bleeding injury in the left side of his stomach and Santosh Mahto received injury in his right hand. In course of his examination, he has narrated the entire occurrence. He stated that the injured Suchan Mahto fell down on the ground after receiving the knife injury in his chest. Suchan Mahto received bleeding injury in the left side of his stomach and Santosh Mahto received injury in his right hand. In course of his examination, he has narrated the entire occurrence. He stated that the injured Suchan Mahto fell down on the ground after receiving the knife injury in his chest. After assaulting Suchan Mahto and Santosh Mahto the appellant went to the house of Suchan Mahto and Santosh Mahto. Suchan Mahto became unconscious after receiving injury for some time. He was taken to B.G.H. for treatment. 17. P.W.3 Phanibhushar Mahto has also fully supported the prosecution case. He has stated that the appellant gave a Chura blow to Suchan Mahto in his left side of the Chest. Santosh Mahto also received Chura blow in his right hand. In his cross-examination he has stated that the alleged occurrence took place in his presence. When he reached near the place of occurrence, he found the appellant-Lampat Bauri, Anjana Kumari, Santosh Mahto, Suchand Mahto and other villagers present at the spot. He has stated that Suchand Mahto fell down on the ground after receiving Chura blow in his chest and after inflicting Chura blow to Suchand Mahto and Santosh Mahto the appellant fled away. Suchand was taken to his house. 18. P.W.5 Ramanath Mahto has narrated the same story and corroborated the F.I.R. He has stated that both Suchand and Santosh were assaulted by the appellant and they received knife injury. Santosh received injury in his right hand whereas Suchand received injury in his front side near the left side of the stomach, the blood was coming out from the injury. He has also stated that the appellant was moving with a Chura and was telling that he will kill Santosh Mahto and Suchand Mahto. He had written Exhibit-1 at the instance of Santosh Mahto. 19. In assailing the evidences of the eye witnesses which are found to be credible by the learned trial Judge, learned Amicus, would submit that there is discrepancy between the evidence of some eye witnesses in the sense that some of them has stated that the appellant has stabbed the injured in the left chest whereas some of them have stated that the appellant stabbed in the left side of stomach/belly. However, we do not find any real contradiction between the evidence of this witness keeping in view the statements given by Doctor (P.W.8). However, we do not find any real contradiction between the evidence of this witness keeping in view the statements given by Doctor (P.W.8). The doctor has very specifically mentioned that the injury received over infra axillary region of the left lateral chest wall and the injury was thoracic cavity deep. Thus, it is clear that depending upon the perception of the person one witness may say it is to be part of the belly whereas, another person may say it is part of chest. Be that as it may, I am of the opinion that this simple and minor discrepancies in between evidence of witnesses and this cannot be given much importance to throw out the case of the prosecution. There is, however, one aspect which requires careful consideration that P.W.7 himself has stated that when the appellant stabbed him he received injury on the left side of his abdomen and the medical evidence corroborates the same. Thus, there is no real contradiction between the evidence of the injured himself which is also corroborated by other witness and also by medical evidence. However, the evidences of the prosecution witnesses as regard rest of the injury of P.W.4 Santosh Kumar Mahto is concerned there appears to be some contradiction in the sense that the witness P.W.4 Santosh Kumar Mahto has stated that the appellant gave a stab blow on the right hand near the elbow whereas, the Doctor has found incised wound which was skin deep over upper medial border on the left forearm of the witness Santosh Kumar Mahto. This is a major contradiction especially when the injured himself and other witnesses says that he received injury on right hand and injury was found on the left hand. Thus, the conviction of the appellant under Section 324 of the Penal Code appears to be based on contradictory evidence between the eye witness’s narration and the medical evidence. 20. Learned Amicus for the appellant would, therefore, submit that the appellant should be acquitted as one part of the prosecution has to be thrown out, i.e., infliction of injury on P.W.4 Santosh Kumar Mahto. However, the principle of falsus in uno, falsus in omnibus is not a principle of law applicable to India. It is only a rule of appreciation of evidence. However, the principle of falsus in uno, falsus in omnibus is not a principle of law applicable to India. It is only a rule of appreciation of evidence. Thus, the Court can by shifting evidence and analyzing the same by separating the grain from the chaff come to the conclusion a part of prosecution case is not true, but the other part is correct. Thus, we come to the conclusion that the prosecution has not proved its case beyond all reasonable doubt as far as offence under Section 324 of the Penal Code is concerned. However, there appears to be no error, illegality or irregularity in the findings of facts as far as attempt to murder on P.W.7-Suchand Mahto is concerned. 21. Another aspect that has been raised by the learned Amicus for the appellant is that the Investigating Officer has not been examined in this case and, therefore, it is submitted that the case should be thrown out. In several cases, the Hon’ble Supreme Court has held that there is no inflexible rule of law that if the Investigating Officer is not examined in a case then the prosecution case should fail. This Court take note of few of the cases to buttress its opinion. In the case of Behari Prasad Vs. State of Bihar, (1996) 2 SCC 317 , the Hon’ble Supreme Court has held that it is not correct to contend that if an Investigating Officer is not examined in a case, such a case should fail on the ground that the accused were deprived of the opportunity to effectively cross examine the witnesses for the prosecution and bring out contradictions in their statements before the police. A case of prejudice is likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that the non-examination of Investigating Officer per se vitiates a criminal trial. In the case of Ram Gulam Chaudhary Vs State of Bihar, (2001) 8 SCC 311 , the Hon’ble Supreme Court held that in that case non-examination of the Investigating Officer has caused no prejudice at all to the accused. It is so because there were witnesses who have given credible and believable evidence as to the place of occurrence. Their evidence cannot be discarded merely because the Investigating Officer was not examined. It is so because there were witnesses who have given credible and believable evidence as to the place of occurrence. Their evidence cannot be discarded merely because the Investigating Officer was not examined. The non-examination of the Investigating Officer has not lead to any prejudice to the Appellants. In the case of Raj Kishore Jha Vs. State of Bihar, (2003) 11 SCC 519 , the Hon’ble Supreme Court has held that mere non-examination of Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version. In that case after examination-in-chief and partial cross-examination, the Investigating Officer had died. Therefore, it was held that it was not a fit case which can be stated to have caused any prejudice to the accused on account of Investigating Officer's non-examination. Thus, the effect of non-examination of the Investigating Officer definitely depends upon the facts of a particular case. In this case, no contradiction pointed out by the defence in the testimony of any of the eye witnesses which are substantial in nature which could have been confronted to the Investigating Officer. Moreover, not even suggestion has been given to any of the witnesses that the non-examination of the Investigating Officer has caused prejudice to the accused appellant. Learned Amicus has also failed to point out any specific reason or cause for coming to the conclusion that non-examination of the Investigating Officer has caused serious prejudice to the appellant. 22. In that view of the matter, I find no merit in the appeal as far as conviction under Section 307 is concerned. However, conviction under Section 324 of the Penal Code appears to be incorrect, hence, the appeal is allowed in part. The conviction and sentence under Section 307 of the Penal Code is upheld and the consequence sentence thereon is also confirmed. 23. Pending application, if any, stands disposed of. 24. Records of the Trial Court be forthwith transmitted to the court of original jurisdiction along with a copy of this judgment, with further direction to immediately start re-committal proceeding for securing the presence of the appellant to serve the remaining portion of the sentence awarded to him by the learned Additional District and Sessions Judge, Fast Track Court-4, Bokaro, in S.T. No. 673 of 1994. 25. We place on record our appreciations to Mr. 25. We place on record our appreciations to Mr. Lukesh Kumar, the learned counsel for the appellant as Amicus, for the efforts undertaken and valuable assistance provided by him. 26. Grant urgent certified copy of this order as per the Rules.