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2024 DIGILAW 48 (JHR)

Deepak Mahato v. State of Jharkhand

2024-01-11

SUBHASH CHAND

body2024
JUDGMENT : HON’BLE MR. JUSTICE SUBHASH CHAND The instant criminal appeal has been preferred on behalf of the appellants, namely, Deepak Mahato and Kapil Mahato against the judgment of conviction dated 12.05.2011 and order of sentence dated 13.05.2011 passed in Sessions Trial No.524/2004 whereby the learned Additional Judicial Commissioner-I, Khunti held guilty to the appellant no.1 namely, Deepak Mahato for the charge under section 323 of the Indian Penal Code (hereinafter referred to as 'IPC') and sentenced with simple imprisonment of 3 months while the appellant no.2, namely, Kapil Mahato was held guilty for the charge under section 326 of IPC and sentenced with RI for three years and a fine of Rs.2000/-and half of the fine was ordered to be paid to the injured for the medical expenses made by her and in case of default of payment of fine, further to undergo RI for three months. 2. The brief facts of the prosecution case leading to this criminal appeal are that on 24.11.2003 at 14' hours of day time, the informant Charki Devi had given written information before the police officer of the police station concerned with these allegations that on 17.11.2003 at 7 O'clock of morning she came to the Khalihan and found the same to be destroyed by the cattle. The informant without giving any name of any one hurled abuse of whom the cattle have destroyed the Khalihan. On this very issue, her neighbour Kapil Mahato, Deepak Mahato and Lalita Devi armed with iron rod and Dauli hurling abuse chased the informant who intruded in her house. The accused persons also intruded in the house and dragged her out of the house. Kapil Mahato with intent to commit murder of her assaulted with Dauli which hit on her head and Deepak Mahato assaulted with iron rod and Lalita Devi assaulted with broom. On being alarmed the persons of the locality attracted there and the accused persons managed to flee away. The informant was admitted to RIMS, Ranchi and after being recovered from the injury she gave the written information with the police station concerned. On this written information, the Case Crime No. 101/2003 was registered with Bundu Police Station, District Ranchi. 3. The investigating officer after having concluded the investigation filed charge-sheet for the offence under section 341, 323, 325, 307 r/w 34 of IPC against the accused Kapil Mahato, Deepak Mahato and Lalita Devi. On this written information, the Case Crime No. 101/2003 was registered with Bundu Police Station, District Ranchi. 3. The investigating officer after having concluded the investigation filed charge-sheet for the offence under section 341, 323, 325, 307 r/w 34 of IPC against the accused Kapil Mahato, Deepak Mahato and Lalita Devi. 4. The Magistrate concerned took cognizance on the charge-sheet and committed the case for trial to the court of learned Judicial Commissioner, Khunti and same was transferred to the court of Additional Judicial Commissioner-I, Khunti. 5. The trial court framed charged against the accused Kapil Mahato, Deepak Mahato and Lalita Devi for the offence under section 341, 323, 325, 307 r/w 34 of IPC. 6. On behalf of prosecution in oral evidence examined PW1Sanatan Mahato, PW2-Sikander Mahato, PW3-Malti Devi, PW4-Bhusak Mahato, PW5-Balram Mahato, PW6-Charki Devi, PW7-Shambhu Mahato, PW8- Dr. Madhup Lal and PW9- Dr. Binod Kumar. 7. On behalf of prosecution in documentary evidence adduced fardbeyan exhibit-1, X-ray report exhibit-2, inquiry report exhibit-3, injury report exhibit-4. 8. The statement under section 313 of Cr.PC of the accused Deepak Mahato, Kapil Mahato and Lalita Devi were recorded. All the accused person denied the incriminating circumstances in evidence against them and told themselves to be innocent. 9. No defense evidence was adduced on behalf of the accused persons. 10. The learned trial court after hearing the rival submission of the learned counsel for the accused and learned PP for the State passed the impugned judgment dated 12.05.2011 whereby Lalita Devi was acquitted; while the accused Kapil Mahato was convicted for the offence under section 326 of IPC and Deepak Mahato was convicted for the offence under section 323 of IPC and sentenced Kapil Mahato with rigorous imprisonment for 3 years and a fine of Rs.2000/-in default of payment of fine, the additional imprisonment of three months was directed to undergo. While the accused Deepak Mahato was sentenced with simple imprisonment for three months for the offence under section 323 of IPC. 11. Aggrieved from the impugned judgment of conviction and sentence the instant criminal appeal was directed on behalf of the appellant convict Deepak Mahato and Kapil Mahato on the ground that the impugned judgment of conviction and sentence passed by the court below is bad in the eye of law as the same was not passed in a proper perspective and on the wrong appreciation of evidence on record. The victim herself has improved her statement in view of the contents of the FIR which was lodged by herself. The prosecution case is not proved beyond reasonable doubt. In view of the above prayed to allow the criminal appeal and to set aside the impugned judgment of conviction and order of sentence. 12. I have heard the learned Amicus Curiae Mr. Kumar Saurav for the appellant and learned APP Mr. Tarun Kumar for the State and perused the material on record. 13. In order to decide the legality and propriety of the impugned judgment of conviction and sentence passed by the court below the evidence adduced on behalf of the prosecution is being reproduced hereinbelow: 13.1 PW1-Sanatan Mahato in his examination-in-chief says on 17.11.2003 at 7 O'clock in the morning he was at his house. His mother had hurled abuse without giving any name for destroying the Khalihan by the cattle. His elder mother hurled abuse to his mother, his father asked his mother to go to the house. His mother intruded in her house. At the same time Kapil Mahato and Deepak Mahato were exhortated to assault. Deepak Mahato assaulted his mother with the iron rod. Kapil Mahato assaulted with Dauli which hit on the head of his mother. His mother fell down on the ground the blood was oozing from the head. His father and his brother-in-law both took to the mother to police station and from there to the hospital. His father Shambhu Mahato was also assaulted by the accused persons. In cross-examination this witness says Deepak Mahato and Kapil Mahato both are his cousin brother. Khalihan is at the distance of 20 yards from the house. This Khalihan was of Golak in which the paddy was of them. In the north of the Khalihan is house of Hari Mahato. In South is his house, in East is the tree and the land of Golak while in West is the vacant land of Golak. Police had interrogated him. The case was also registered on the very day. His mother was unconscious so his father was interrogated by the police. His mother was rushed to the hospital on the very day. He was in the hospital for 10 to 12 days. Police has also interrogated him on the very day of occurrence. Police had interrogated him. The case was also registered on the very day. His mother was unconscious so his father was interrogated by the police. His mother was rushed to the hospital on the very day. He was in the hospital for 10 to 12 days. Police has also interrogated him on the very day of occurrence. He has told to the police that Deepak Mahato had assaulted with rod which hit on the waist of his mother. The dispute between the two was old one. It is wrong to say that his mother had called dian to the mother of Kapil and on the very day of occurrence he had also addressed the mother of Kapil has dian. It is also wrong to say that this case was lodged on account of enmity. 13.2 PW2-Sikander Mahato in his examination-in-chief says that occurrence was of 17.11.2003 at 7 O'clock of morning. Having heard the noise he reached at the place of occurrence after sometime. Charki Devi had sustained head injury, blood was oozing, she was in unconscious condition and he came to know that Kapil Mahato, Deepak Mahato and Lalita Devi all the three had assaulted Charki Devi with Dauli and iron rod. He took Charki Devi to the hospital where she remained therefore 10 to 12 days. When she regained senses the statement of Charki Devi was recorded by the police. Charki Devi put her thumb impression while Shambhu Mahato and he put the signature. In cross-examination this witness says he did not see the occurrence. His house is at the distance of 20 yard from the place of occurrence. His sister-in-law Mamta Kumari had called him. He found his mother-in-law unconscious. He and his father-in-law took his mother-in-law to the police station from there she was taken to Bundu hospital. On the very day she was brought to Bariatu police station. On 24.11.2003 the police of Bariatu came and recorded the statement. Police had interrogated him at the house of his inlaws. He had told to police that he came to know from his sister-in-law that the accused persons had assaulted with rod and Dauli to his mother-in-law. 13.3 PW3-Malti Devi in her examination-in-chief says the occurrence was of 17.11.2003 at 7 O'clock of morning she was at the house. Police had interrogated him at the house of his inlaws. He had told to police that he came to know from his sister-in-law that the accused persons had assaulted with rod and Dauli to his mother-in-law. 13.3 PW3-Malti Devi in her examination-in-chief says the occurrence was of 17.11.2003 at 7 O'clock of morning she was at the house. She went to the house of her mother and came to know that Deepak Mahato and Kapil Mahato both had assaulted to her mother. She was lying on the ground and blood was oozing from her head and also came to know that on account of the paddy in the Khalihan which was destroyed by the cattle the occurrence took place. Deepak Mahato assaulted with iron rod while Kapil Mahato assaulted with Dauli. In cross-examination this witness says that she did not see the occurrence. She reached at the place of occurrence later on. Her house is at the distance of 200 yard from the place of occurrence. She had seen her mother lying on the ground in unconscious condition. The blood was oozing from the head. The incised wound was on the head. Police has also interrogated her. 13.4 PW4-Bhusak Mahato in his examination-in-chief says the occurrence was of one year eight months old. It was morning, he was doing work in his bari/badi. He came to the place of occurrence and came to know that Charki Devi was assaulted by Kapil Mahato on the head on the issue of that the cattle had destroyed the paddy in the Khalihan of Charki Devi. In cross-examination this witness says that he did not see the occurrence from his own eye. 13.5 PW5-Balram Mahato in his examination-in-chief says at the time of occurrence he was going to his agriculture field. He came to know that his sister-in-law was assaulted by Deepak Mahato with the iron rod and Kapil Mahato assaulted with Dauli on the issue of destroying the paddy crop in the Khalihan by the cattle of accused persons. In cross-examination this witness says it is wrong to say that he was not at the place of occurrence. He had not stated to the police that Kapil Mahato had assaulted with Danda rather had stated that Deepak Mahato assaulted with iron rod while Kapil Mahato assaulted with Dauli. In cross-examination this witness says it is wrong to say that he was not at the place of occurrence. He had not stated to the police that Kapil Mahato had assaulted with Danda rather had stated that Deepak Mahato assaulted with iron rod while Kapil Mahato assaulted with Dauli. 13.6 PW6-Charki Devi in her examination-in-chief says it was 7 O'clock of morning she went to the Khalihan and saw that the paddy crop was destroyed by the cattle. She without giving any name hurled abuse whose cattle had destroyed her paddy crop. Lalita Devi also hurled abuse to her in exchange. Her husband asked her to go to the house and she intruded in the house. Lalita Devi armed with broom and assaulted her. Deepak Mahato assaulted her with iron rod while Kapil Mahato assaulted with Dauli which hit on her head. She fell down on the ground and became unconscious. She was taken to the hospital where her statement was recorded after 6 to 7 days from the date of occurrence. In cross-examination this witness says that in the Khalihan the paddy crop was of her. The buffalo was grazing the paddy crop. She hurled abuse. Lalita Devi stated that the said cattle was of her. On the very issue the occurrence took place. Balram Mahato had also gone to reap the paddy but was not at the place of occurrence. It is wrong to say that her son had also called Lalita Devi dian. 13.7 PW7-Shambhu Mahato in his examination-in-chief he stated that on 17.11.2003 at 7 O'clock of morning the cattle had destroyed the paddy crop in the Khalihan. His wife hurled abuse without giving any name. Deepak Mahato, Kapil Mahato and Lalita Devi all came there-Deepak Mahato assaulted with iron rod on the back of his wife while Kapil Mahato assaulted with dauli which hit to his head. His wife fell down on the ground. The blood was oozing from the head. He and his son-in-law took her to the police station from there he was taken to the hospital. His wife regained senses after three days from the date of occurrence. On 24.11.2003 police came there and recorded the statement. On the fardbeyan he put his signature the same is exhibit-1. The fardbeyan was given to the police of Bundu police station. In cross-examination this witness says Khalihan was of Golak. His wife regained senses after three days from the date of occurrence. On 24.11.2003 police came there and recorded the statement. On the fardbeyan he put his signature the same is exhibit-1. The fardbeyan was given to the police of Bundu police station. In cross-examination this witness says Khalihan was of Golak. In north of the same is the land of him, in south is the house of Susen Mahato, in east is also the house of them, in west is the house of Domana Mahato. While Charki Devi was hurling abuse standing at the door of the house at the same time Kapil Mahato and Deepak Mahato both intruded in the house and assaulted his wife. Kapil Mahato assaulted with Dauli on the head while Deepak Mahato assaulted with iron rod which hit on her waist. His wife became unconscious on account of sustained injuries. He did not give any statement to the police that his wife was assaulted with Danda. 13.8 PW8- Dr. Madhup Lal in his examination-in-chief says he was posted at RIMS on 11.12.2003. He had examined the X-ray of patient Charki Devi and he has seen fracture of the right frontal region. Such injury can be caused by the sharp cutting weapon. This X-ray report is in his hand writing and signature marked exhibit-2. The injury report was of Dr. Binod Kumar marked exhibit-3. He examined Charki Devi on 11.12.2003. In regard to X-ray he did not examine the injury. 13.9 PW9-Dr. Binod Kumar in his examination-in-chief says that on 17.11.2003 he was posted at RIMS as Registrar Surgery. On that day at 11:35 AM he examined Charki Devi who was brought by the police of Bundu, Ranchi and found following injuries: (i) one stitched wound 6 cm long with bleeding over the skull, X-ray was done (ii) hair line fracture of right frontal region of the skull was seen, this wound was grievous in nature. The X-ray report has already been marked exhibit-3 while the injury report is marked as exhibit-2. Primary injury report was not with me at the time of X-ray. The patient did not tell about the primary injury report. Patient was referred from Bundu Hospital. The paper of referal hospital was given to him. 14. The prosecution case is based on direct evidence. The eye witness of the occurrence is PW-6 Charki Devi who is informant and injured as well. The patient did not tell about the primary injury report. Patient was referred from Bundu Hospital. The paper of referal hospital was given to him. 14. The prosecution case is based on direct evidence. The eye witness of the occurrence is PW-6 Charki Devi who is informant and injured as well. PW1-Sanatan Mahato the son of informant and PW7 Shambhu Mahato the husband of the informant are the eye witness of the occurrence. PW6-Charki Devi in her examination-in-chief in her statement has proved the contents of the FIR and also stated that Kapil Mahato had assaulted her with Dauli which hit on her head while Deepak Mahato had assaulted with the iron rod which hit on her back. On account of sustaining head injury the blood was oozing from the head and she had become unconscious. When she regained senses in the hospital her fardbeyan was recorded by the police. The cause of occurrence is shown by this witness that in the Khalihan her paddy crop was there, same was destroyed by the cattle of the accused persons. On having hurled abuse by her without giving any name the accused persons had assaulted her. The mother of Deepak Mahato and Kapil Mahato namely Lalita Devi hurled abuse to her then she intruded in her house. On being exhortated by Lalita Devi her both the son Deepak Mahato and Kapil Mahato assaulted her. 15. PW1-Sanatan Mahato the son of the informant is also the eye witness. He stated that having destroyed the paddy crop in the Khalihan by the cattle of the accused persons. On hurling abuse without giving any name by her mother Lalita Devi also hurled abuse and on being exhortated by her, her both the sons Kapil Mahato and Deepak Mahato came, Deepak Mahato assaulted with iron rod which hit on the waist of his mother and Kapil Mahato assaulted with Dauli which hit on the head of his mother. His mother became unconscious on the spot due to sustaining injury. His brother-in-law and his father both took her to the hospital. 16. PW7-Shambhu Mahato the husband of informant is also the eye witness. His mother became unconscious on the spot due to sustaining injury. His brother-in-law and his father both took her to the hospital. 16. PW7-Shambhu Mahato the husband of informant is also the eye witness. He also stated that on 17.11.2003 at 7 O'clock of morning the cattle of the accused persons had destroyed the paddy crop in the Khalihan, on this his wife had hurled abuse without giving any name, Lalita Devi opposed the same and hurled abuse in exchange. He asked his wife to go to the house she went house but on being exhortated by Lalita Devi her son Kapial Mahato armed with Dauli and Deepak Mahato armed with iron rod came and assaulted to his wife. Deepak Mahato assaulted on the waist with the iron rod while Kapil Mahato assaulted with Dauli on the head of his wife. She sustained injuries and blood was oozing from the head. She became unconscious, he and his son-in-law took her to the police station thereafter to the hospital and on having regain senses her fardbeyan was recorded on which he also put the signature. 17. All the above three eye witnesses of the occurrence whose presence cannot be doubted at the place of the occurrence have narrated how the accused persons had assaulted to Charki Devi. There is no contradiction in the statement of all these eye witnesses in the statement given by them to the investigating officer under section 161 of Cr.PC and the statement given by them during the examination in the trial before the trial court. The testimony of an injured witness holds much significance. The testimony of both the injured witness PW6-Charki Devi and testimony of the eye witness PW1-Sanatan Mahato and PW7-Shambhu Mahato who had seen the occurrence and were present at the time of occurrence cannot be disbelieved. The contention of learned counsel for the appellant that these witnesses were the interested witness cannot be sustained reason being that the place of occurrence is the house of the informant-victim and the presence of her husband and son is not shacked by the defense counsel in the cross-examination of all the three eye witnesses. So far as the enmity between the accused person and the informant is concerned the enmity is a double edged weapon on account of the same prosecution story cannot be disbelieved. So far as the enmity between the accused person and the informant is concerned the enmity is a double edged weapon on account of the same prosecution story cannot be disbelieved. 17.1 The Hon'ble Apex Court in “Baldev Singh v. State of Punjab” 2013 AIR SCW 5524 held: “20.We are also unable to accept the submission of Mr. Sharan that the evidence of PW-3 and PW-4 ought not to be relied on by the trial court and the High Court when there was evidence to show that there was enmity between PW-3 and PW-4 on the one hand and the appellants on the other hand. Where there is previous enmity between the witness and the accused, the evidence of the witness has to be carefully scrutinized by the Court before it is accepted, but only on account of such enmity the Court cannot discard the evidence of the witness altogether. [See State of U.P. v. Kishanpal and others (2008) 16 SCC 73 : (AIR 2009 SC (Supp) 1238)]. Moreover, witnesses who are not related to a victim of an offence are in some situations difficult to find. This is one such situation where the appellants have come to the house of the complainant (PW-3) early in the morning at 5.00 am on 29.10.1991 and picked up seven members of his family and it is difficult to find persons witnessing this incident at 5.00 a.m. during the last part of October. Moreover, one of the appellants was a Deputy Superintendent of Police and therefore even if some one had witnessed the incident, he would prefer not to narrate the incident either before the Investigating Officer or before the Court. In such a situation, the Court has to consider carefully and cautiously the evidence of witnesses who may have had enmity with the accused. On such careful and cautious consideration, it is difficult to discard the evidence of PW-3 that the appellants picked up seven members of his family on 29.10.1991 at 5.00 a.m. from his house particularly when it is corroborated by the evidence of PW-4 as well as the complaint dated 19.01.1992 (Ext. PB) of PW-3 which had been registered as the FIR. PB) of PW-3 which had been registered as the FIR. In our considered opinion, therefore, the trial court and the High Court could not have rejected the evidence of PW3 and PW-4 on the ground of enmity between PW-3 and PW-4 on the one hand and the appellants on the other hand.” 17.2 The Hon'ble Apex Court in “Vijay Shankar Shinde & Ors. v. State of Maharashtra” AIR 2008 SC 1198 held: “8. Though the Trial Court observed that PWs 9 and 11 may have tried to exaggerate because former was the widow and latter was injured victim, the evidence of PWs 12 and 13 establish the prosecution version. 9. The Trial Court was not justified in holding that because PW11 was an injured witness he may have reason to falsely implicate the accused. However, as rightly observed by the Trial Court and the High Court, the evidence of PWs 12 and 13 does not suffer from any deficiency. PWs 11, 12 and 13 were cross-examined at length but nothing substantial could be elicited to destroy the credibility of their version. As a matter of fact, the evidence of injured person who is examined as a witness lends more credence, because normally he would not falsely implicate a person thereby protecting the actual assailant. 10. The Trial Court as well as the High Court have rightly placed reliance on the evidence of the eye-witnesses and as noted above their evidence was clear and cogent.” 17.3 The Hon'ble Apex Court in “Babasaheb Apparao Patil vs. State of Maharashtra” 2009 AIR SCW 936 held: “12. It is to be borne in mind that some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the evidence of the witness. Unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Merely because there is inconsistency in evidence, it is not sufficient to impair the credibility of the witness. It is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court would be justified in discarding his evidence. 14. In Appabhai and Anr. Vs. State of Gujarat, this Court had again emphasized that while appreciating the evidence, the court should not attach undue importance to minor discrepancies. It is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court would be justified in discarding his evidence. 14. In Appabhai and Anr. Vs. State of Gujarat, this Court had again emphasized that while appreciating the evidence, the court should not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal errors of perception or observation should not be given importance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record as a whole and should not disbelieve the evidence of a witness altogether, if it is otherwise trustworthy.” 17.4 The Hon’ble Apex Court in “Ashok Kumar Chaudhary & Ors. v. State of Bihar” 2008 AIR SCW 3739 held: “7. We are not impressed with the argument. Though it is true that the incident having taken place near the market around 6 p.m. on 17th July, 1988, the prosecution should have attempted to secure public witnesses who had witnessed the incident, but at the same time one cannot lose sight of the ground realities that the members of the public are generally insensitive and reluctant to come forward to report and depose about the crime even though it is committed in their presence. In our opinion, even otherwise it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled that though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/ she cannot be characterized as an "interested" witness. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/ she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive.” 17.5 The Hon’ble Apex Court in “Ravishwar Manjhi & Ors. v. State of Jharkhand” (2008) 16 SCC 561 held: “30. Out of seven eyewitnesses, PW 7 was not believed by the courts below. PWs 4 and 5 were not present exactly at the place of occurrence. They are said to have witnessed only a part of the occurrence. All other eyewitnesses were related to the deceased. However, we do not hesitate to add that only on that ground their evidences should not be disbelieved.” 18. Further the testimony of these eye witnesses are also corroborated with the testimony of the witness PW2-Sikander Mahato, PW3-Malti Devi, PW5-Balram Mahato. These witnesses though had not seen the occurrence but reached there immediately after the occurrence and came to know that it was Kapil Mahato who assaulted with Dauli to Charki Devi which hit on her head and Deepak Mahato had assaulted with iron rod which hit on her waist. They also found Charki Devi in injured condition at the place of occurrence and their testimony also becomes admissible in evidence because they came to know in regard to the occurrence from PW1-Sanatan Mahato and PW7-Shambhu Mahato both have been examined therefore their testimony also becomes admissible in evidence though based on hearsay. 18.1 The Hon'ble Apex Court in “Mukhtiar Singh & Anr. v. State of Punjab” 2009 AIR SCW 1475 held: “8. PW-5 has clearly stated in his statement that no telephone was installed at the Railway Station, Kahangarh but there was a telephone installed at the Railway Control Room at the Railway Station which, however, was found to be out of order. He also stated that he had gone to GRP Police Post at Budhlada from where he sent a message to the Control Room at Bathinda on telephone about the occurrence. He also stated that he had gone to GRP Police Post at Budhlada from where he sent a message to the Control Room at Bathinda on telephone about the occurrence. The aforesaid statement clearly explains the delay in sending the information and also explained as to why detailed information regarding all materials leading to the occurrence was not mentioned by him. He cannot be called in any manner an interested witness; in fact he was a most disinterested witness. Nothing has been brought on record to show that he is inimical to the accused persons. He has specifically stated in his depositions that he saw the aforesaid accused running towards the village side carrying weapons. His presence at the spot cannot be doubted as it is established that he was at duty at the Railway Police Post, Kahangarh, which is the place of occurrence. He has also stated in his depositions that he had in fact chased the two accused persons up to a certain distance but could not manage to nab them and that when he returned to the scene of occurrence, Surjit Kaur, PW-3, disclosed to him about the occurrence. This shows that he did not see the accused persons attacking the deceased but learnt about the same from an eye witness and the said information about the dead body lying at the platform was flashed by him, for he knew that on receipt of the aforesaid information the police should start investigation and during that course police would definitely ask eye SC1858 witnesses and get all the information from them. In any case, his information would be hearsay evidence, but as the same corroborates the substantive evidence of PW. 2 and PW. 3 the same would be admissible, as was held in the case of Pawan Kumar v. State of Haryana, [ (2003) 11 SCC 241 ], wherein it was observed that evidence of such nature could be used to corroborate the substantive evidence. However, in that case, as there was no substantive evidence the benefit of said evidence was not granted.” 19. The ocular evidence is also corroborated with the medical evidence. As per ocular evidence the head injury was caused with Dauli and the injury on the waist was caused with the iron rod. However, in that case, as there was no substantive evidence the benefit of said evidence was not granted.” 19. The ocular evidence is also corroborated with the medical evidence. As per ocular evidence the head injury was caused with Dauli and the injury on the waist was caused with the iron rod. In ocular evidence the role of assaulting head injury has been attributed to Kapil Mahato; while the injury caused in the waist has been attributed to the convict/appellant Deepak Mahato. PW8-Dr. Madhup Lal had examined the injured Charki Devi on 11.12.2003. He had examined the x-ray report of the patient Charki Devi on 17.11.2003 and he opined that the hair line fracture of the right frontal region was seen. Such injury can be caused by the sharp cutting. This report is in his handwriting and sign is marked as exhibit-2. This witness also further says that the injury report written by Dr. Binod Kumar is also marked as exhibit-3. 20. PW9-Dr. Binod Kumar who examined the injured Charki Devi on 17.11.2003 at 11:35 and who was brought to him by the police station Bundu, Ranchi and she was admitted at the RIMS hospital bearing registration no. ERS/3440 dated 17.11.2003 and he found following injuries: (i) one stitched wound 6 cm long with bleeding over skull x-ray was also done. Skull A.P. and lateral reason plate no.3303/2 dated 17.11.2003. As per x-ray report hair line fracture of the right frontal region of the skull is seen. The patient was referred to RIMS from the Hospital Bundu. This injury was grievous in nature. This injury report is already marked exhibit-3 therefore, the ocular evidence is also well corroborated with the medical evidence. The injured was examined on 17.11.2003 at 07:45 at RH, Bundu by the Medical Officer, RH, Bundu which is exhibit-4 on lower court record and following injuries are shown therein: (i) lacerated wound just above left eyebrow about 4cm x 0.2cm x skin deep. (ii) T/I within back. (iii) N/I simple. (iv) N/I scar mark of the above wound. 21. Herein it is pertinent to mention that the assault given with Dauli which is sharp weapon is on the skull. Taking into account the seat of the injury which is on the skull the lacerated wound is likely to be caused by hitting with the sharp edged weapon. (iii) N/I simple. (iv) N/I scar mark of the above wound. 21. Herein it is pertinent to mention that the assault given with Dauli which is sharp weapon is on the skull. Taking into account the seat of the injury which is on the skull the lacerated wound is likely to be caused by hitting with the sharp edged weapon. 21.1 Medical jurisprudence and toxicology by Lyton (11th Edition) page 452 deals with lacerated wound then page 843 of this book reads as under: “Lacerated wounds are common regions where unyielding bone closely underlies the surface. Tissues that are powerfully compressed between the bones and the instrument or the ground as the case may be give way long the line of greatest pressure resulting wound may cursory inspection present the appearance of incise wound.” 21.2 HWV KOX in his book Medical Jurisprudence and Toxicology (VIIth Edition) at page 395 dealing with lacerated wound reads as under: “Split Laceration: Splitting occurs by crushing skin between the two hard objects. They are called incised looking wounds when there is application of blunt force on areas where the skin is closely applied to the bone and sub-cutaneous tissues is scanty, the wounds are produced by the linear splitting of the skin. The common areas are scalp, eyebrows and hibones. They can be differentiated by examining the margins by magnifying glass and in these cases the roots of hair are crushed.” 22. In view of the test of Medical Jurisprudence, the ocular evidence is also fully corroborated with the medical evidence in the case in hand. 23. The statement of the appellant convict Deepak Mahato and Kapil Mahato was also recorded under section 313 of Cr.PC. All the incriminating circumstances which was against them in the evidence adduced by the prosecution was put to these accused persons to explain but same is stated to be wrong by the accused persons and told themselves to be innocent. 24. In view of the overall analysis of the evidence ocular and documentary on record the charge for the offence under section 326 of IPC is proved beyond reasonable doubt against the appellant convict Kapil Mahato and the charge under section 323 of IPC is made out against the appellant/convict Deepak Mahato. 25. The impugned judgment of conviction dated 12.05.2011 passed by the learned court below does not bear any infirmity and the same needs no interference. 26. 25. The impugned judgment of conviction dated 12.05.2011 passed by the learned court below does not bear any infirmity and the same needs no interference. 26. So far as the sentence inflicted by the learned court below for the charge under section 326 of IPC to the appellant Kapil Mahato is concerned, the same is 3 years and the same needs no interference. 27. So far as the sentence inflicted to Deepak Mahato for the charge under section 323 of Cr.PC is concerned which is 3 months the same may be modified with the admonition by exercising power under section 360(4) of Cr.PC releasing the appellant Deepak Mahato after due admonition, in view of the date of occurrence and the period taken in the trial and deciding the appeal as well pending since 2003 and 2011 respectively. 28. Accordingly this criminal appeal is dismissed. The impugned judgment of conviction of both the appellant dated 12.05.2011 is upheld and the sentence dated 13.05.2011 of the appellant no.2 namely, Kapil Mahato is upheld; while the sentence of the appellant no.1 namely, Deepak Mahato as inflicted by the learned trial court is modified releasing the appellant after due admonition. 29. The bail bonds of both the appellants are hereby cancelled and the sureties are discharged from their liabilities. 30. The appellant Kapil Mahato is directed to surrender before the court below to serve out the sentence. The learned trial court is also directed to ensure the compliance of the judgment to serve out the sentence by the appellant convict Kapil Mahato by sending him to the jail concerned. 31. Let the record of learned lower court be sent back alongwith copy of judgment for necessary compliance.