Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA *** [Against the judgment and order of conviction dated 07.08.2000/08.08.2000 passed by the 4th Additional Sessions Judge, Nawadah, in Sessions Trial No.43 of 1990/71 of 1997] *** Criminal Appeal (SJ) No.307 of 2000 =========================================================== 1. Ganesh Prasad, son of Sri Ramdhani Mahto, 2. Suresh Prasad, son of late Somar Mahto & 3. Radhey Mahto, son of late Ganauri Mahto, all resident of Gosai Bigha, P.S.- Akbarpur, District- Nawada. The State of Bihar Versus .... .... Appellant/s .... .... Respondent/s With Criminal Appeal (SJ) No. 320 of 2000 =========================================================== 1. Uma Prasad son of Ram Dhari Mahto & 2. Parmeshwar Mahto, son of late Shankar Mahto, all resident of Gosai Bigha, P.S.-Akbarpur, District-Nawada Versus .... .... Appellant/s The State of Bihar .... .... Respondent/s =========================================================== Appearance: (In CR. APP (SJ) No. 307 of 2000) For the Appellant/s : Mr. Shiv Shankar Pd. Singh, Advocate For the Respondent/s : Mr. Satya Narain Prasad, APP For the Informant : Mr. Ravi Bhusan Prasad, Advocate (In CR. APP (SJ) No. 320 of 2000) For the Appellant/s : Mr. Shiv Shankar Pd. Singh, Advocate For the Respondent/s : Mr. S. A. Ahmad, APP For the Informant : Mr. Ravi Bhusan Prasad, Advocate =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 12-12-2013 Anjana Prakash, J. The Appellants Uma Prasad, Parmeshwar Mahto, Suresh Prasad, Radhey Mahto and Ganesh Prasad have been convicted under Sections 307/149 Indian Penal Code, whereas, Appellant Parmeshwar Mahto has also been convicted under Section 307/109 Indian Penal
Legal Reasoning
Patna High Court CR. APP (SJ) No.307 of 2000 dt.12-12-2013 2/7 Code. Appellants Suresh Prasad, Radhey Mahto, Ganesh Prasad have been convicted under Section 147 Indian Penal Code whereas, Appellants Uma Prasad and Parmeshwar Mahto have been convicted under Section 148 Indian Penal Code. For the offence under Section 148 Indian Penal Code, the Appellants have been sentenced to undergo rigorous imprisonment for six months, whereas, for the offence under Section 147 Indian Penal Code, sentenced to undergo rigorous imprisonment for three years. For the offence under Sections 307/149 Indian Penal Code, the Appellants have been sentenced to undergo rigorous imprisonment for seven years, whereas, for the offence under Sections 307/109 Indian Penal Code, the Appellants were once again sentenced to undergo rigorous imprisonment for seven years. The judgment was delivered by the 4th Additional Sessions Judge, Nawada, on 07.08.2000/08.08.2000 in Sessions Trial No.43 of 1990/71 of 1997. 2. The case of the prosecution according to Hari Mahto is that on 18.11.1985 at 10 AM while he was in his fields, ten accused persons appeared there and surrounded him. Appellant, Parmeshwar Mahto, gave order to kill the Informant upon which Appellant, Uma Prasad, gave several Saif blows over the right eye brow which he repeated causing injury on his nose. Appellant, Parmeshwar Mahto, himself gave Saif blow on the right hand and Suresh gave lathi blow over the thumb of left hand, whereas, Radhey Mahto assaulted him over the right knee, Ganesh Patna High Court CR. APP (SJ) No.307 of 2000 dt.12-12-2013 3/7 Prasad and Dhanu Mahto gave lathi blow over the back. The Informant lost conscious and fell down. The accused persons started to take away the ploughing tools but the witnesses arrived there and saved the Informant and the said articles whereafter he was removed to the hospital by the Chaukidar, Dafadar and police personnel. On regaining his conscious on 21.11.1985, he gave fard bayan as stated above. 3. During trial, the prosecution examined eight witnesses. PW 1, Banaras Prasad, and PW 8, Dinesh Kumar Sinha, are formal witnesses, whereas, PW 7, Sahdeo Mahto, is a tendered witness. 4. PW 2, Mahendra Prasad, who is the son of the Informant, stated that on 18.11.1985 when his father had gone to the fields, he heard his alarm and thereafter saw the accused persons variously armed. When he reached the place of occurrence, he saw the entire assault upon the Informant. He further stated that he was taken to the hospital but he remained unconscious for the next three days and then he gave his fard bayan on his gaining consciousness. He explains relationship between the witnesses. 5. PW 3, Rajendra Prasad, who is a distant relative of the Informant, stated that on the date of occurrence he had gone to his house and thereafter had seen the occurrence of assault. He had allegedly also accompanied the injured to the hospital where the Informant was brought. Patna High Court CR. APP (SJ) No.307 of 2000 dt.12-12-2013 4/7 6. PW 4, Bindeshwari Prasad, who is the son of the Informant, stated that on 18.11.1985 at about 10 AM while he was in his fields along with his father, suddenly accused persons appeared there and started altercating with him. They thereafter assaulted him variously on account of which his father was seriously injured and taken to the hospital. He stated that he was examined by the police on 21.11.1985. 7. PW 5, Hari Mahto, is the injured Informant, who stated that on the date of occurrence while he was working in his fields, accused persons came there and started asserting their rights and when he resisted the accused persons assaulted him variously on account of which he was injured. He gives the details as to how he was assaulted and by whom. 8. PW 6 is the Doctor, who examined the injured Rajendra Prasad (PW 3) on 18.11.1985 and found simple injuries on his person. He also examined the Informant Hari Mahto and found following injuries: (i) Incised wound 1½”x ½” x ¼” on fore head above the right eye brow, (ii) Lacerated wound ½”x ¼” x 1/6” between eye and (iii) nose on right side. Incised wound 2” x ½” x skin deep on right hand dorsal side (iv) Lacerated wound 1” x ½” x ¼” on tip of left thumb (v) Reddish bruises 6” x 2” on back left side with fracture of 12th rib. (vi) Reddish bruises 4” x 2” on back in the middle. Opinion with regard to Injury No.5 i.e. fracture of the rib was found to be grievous while rest of the injuries were simple in nature. Patna High Court CR. APP (SJ) No.307 of 2000 dt.12-12-2013 5/7 He stated that Injury Nos. (i) and (iii) were caused by sharp cutting weapon and rest by the hard and blunt substance. On the same day, he also examined Sahdeo Mahto (PW 7), who stated in his cross- examination that he did not know anything about the occurrence and found two tender injuries on the left and right cuffs which were simple in nature. He also examined Bindeshwari Prasad (PW 4) and found tender injuries on his person. 9. PW 2, Mahendra Prasad, an eye witness to the occurrence as also the son of the Informant stated positively that Rajendra Prasad (PW 3), Sahdeo Mahto (PW 7) and Chotu Mahto etc. were the eye witnesses to the occurrence. However, he does not state that PW 3 and 7 had been assaulted by the accused persons. 10. PW 3, Rajendra Prasad, stated that he had been assaulted by Uma Prasad and Ragho Mahto on his leg and they did not permit the injured to be taken away. It is then he went and informed the police camp along with Bindeshwar Prasad at which the police personnel, the Chaukidar and Dafadar came there. It is only then that the accused persons fled away. 11. PW 4, Bindeshwar Prasad, son of the Informant does not state that PW 3, Rajendra Prasad, had been assaulted by the accused persons even though he asserted presence of Rajendra Prasad. He further stated that when the accused persons threatened that the injured would Patna High Court CR. APP (SJ) No.307 of 2000 dt.12-12-2013 6/7 not be permitted to be removed, he along with Rajendra Prasad went to the police camp where they give information whereafter the Chaukidar, Dafadar and the police personnel came to the place of occurrence and seeing them the accused persons ran away. 12. PW 5, Hari Mahto, even though has given graphic description that how he was assaulted, does not state about the assault on PW 3, 4, and 7 even while specifically asserting their presence at the place of occurrence. 13. Thus, I find that firstly, no explanation has been given by the prosecution as to why there was delay in giving fard bayan. No doubt, the Informant and rest of the witnesses have stated that the Informant had become unconscious for the next three days but the same is not corroborated by the Doctor nor do the Injuries on the person of the Informant suggest the probability of the same. Further, as per the prosecution case, PW 3, PW 4 and PW 7 were admittedly injured witnesses, but surprisingly no case was instituted on their statement. Further, it is the version of PW 3, Rajendra Prasad, that when the Appellants were not permitting them to take the injured for treatment, he along with Bindeshwar Prasad (PW 4) had gone to the police camp and reported the matter whereafter police personnel came. This information has not been brought on record by the prosecution suggesting that it was a biding time to create a story which would suit their purpose of Patna High Court CR. APP (SJ) No.307 of 2000 dt.12-12-2013 7/7 implicating each of the Appellants. 14. No doubt, the ocular evidence is consistent with regard to assault upon the Informant but considering the major lacunae mentioned above which go to the root of the prosecution case, I would be inclined to hold that the veracity of the prosecution case is under serious challenge. 15. Hence, for the reasons mentioned above, the Appellants are acquitted of their respective charges under Sections 147, 148, 307/149 and 307/109 Indian Penal Code and are also discharged from the liabilities of their respective bail bonds. The judgment and order of conviction dated 07.08.2000/08.08.2000 passed by the 4th Additional Sessions Judge, Nawada, in Sessions Trial No.43 of 1990/71 of 1997 is hereby set aside. 16.
Decision
In the result, the appeals are allowed. (Anjana Prakash, J) Patna High Court, Patna. NAFR JA/-