Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.803 of 2002 ====================================================== Nagendra Mahto, son of Harihar Mahto, resident of village Mangalpur Gudariya Tola Khutani, P.S.Nautan, District-West Champaran. Versus .... .... Petitioner/s State Of Bihar .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Jitendra Narain Sinha & Rohit Kr. Advs. For the Respondent/s : Mr. Md. Arif, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 5 16-07-2013 Heard learned counsel for the petitioner as well as learned Additional P.P. 2. Petitioner Nagendra Mahto is aggrieved by the judgment dated 06.07.1995 passed by Ist Assistant Sessions Judge, West Champaran, Bettiah in Sessions Trial No.46 of 1991 whereby and whereunder he has been found guilty for an offence punishable under Section 307 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years
Legal Reasoning
which has also been confirmed by the Appellate Court vide judgment dated 20.07.2002 passed by 3rd Additional Sessions Judge, Bettiah, West Champaran in Cr.Appeal No.33 of 1995. 3. P.W.6 Nageshwar Singh gave his fardbeyan(Ext- 1)wrongly numbered on 07.06.1988 at Bettiah Hospital disclosing therein that his neighbour Harihar Mahto had forcibly encroached Patna High Court CR. REV. No.803 of 2002 (5) dt.15-07-2013 2 some area of his land and got amalgamated with his own land which was carved out during course of measurement leading to brawl. Local Sarpunch reached and had given specific direction. In the aforesaid background to at about 6 A.M. while he was going to meet nature’s call and as soon as reached in front of house of Harihar Mahto, he found Harihar Mahto, Nagendra Mahto, Ashok
Legal Reasoning
Mahto, Birendra Mahto, Bharat Mahto and Sridhar Mahto there out of whom Harihar Mahto and Nagendra Mahto were armed with bhala and on an order of Harihar Mahto, Nagendra Mahto gave bhala blow over left side of his chest on account of which he fell down followed by assault with lathi by other accused. On hue and cry his brother Hargun Singh came in rescue who was assaulted by Kashi Mahto with lathi. Janak Mahto and Baleshwar Singh also came whereupon, the accused persons fled away. Subsequently thereof, he was taken to Bettiah hospital for treatment. 4. On the basis of the aforesaid fardbeyan Nautan P.S.Case No.43 of 1988 was registered whereupon investigation commenced and concluded having chargesheet against Harihar Mahto, Bharat Mahto, Nagendra Mahto and Kashi Mahto while Singha Mahto and Birendra Mahto were not sent up for trial. After taking of cognizance, the accused persons were put on trial out of Patna High Court CR. REV. No.803 of 2002 (5) dt.15-07-2013 3 whom petitioner Nagendra Mahto was convicted for an offence punishable under Section 307 of the IPC while Bharat Mahto and Kashi Mahto were convicted for an offence punishable under Section 323 of the IPC. Harihar Mahto was acquitted. In Cr.Appeal No.33 of 1995 which was filed against judgment of conviction and sentence passed by the learned trial court, while maintaining the conviction modified the sentence with regard to appellant Bharat Mahto and Kashi Mahto giving them benefit of Section 3/1 of the Probation of Offenders Act while dismissed the appeal so far petitioner is concerned. 5. It has been submitted on behalf of the petitioner that there happens no application of Section 307 of the IPC and on account thereof recording of conviction and sentence against the petitioner for an offence punishable under Section 307 of the IPC appears to be wrong and erroneous. It has also been submitted that the learned successive Lower Courts have not taken into account the medical evidence which rules out the manner of occurrence as suggested by the prosecution. It has also been submitted that when medical evidence rules out the prosecution version then in that event case of the prosecution is to be brushed aside. As such, instead of convicting the petitioner, the learned Lower Courts should have acquitted the petitioner. Patna High Court CR. REV. No.803 of 2002 (5) dt.15-07-2013 4 6. At the other hand, the learned Additional P.P. opposed the prayer and submitted that when there happens to be concurrent finding of the successive courts then in that even there happens to be little scope left for the revisional court to interfere with the finding recorded by the successive courts. 7. The successive judgments as well as the evidence available on the record have been gone through. From the evidence of the doctor, it is apparent that the informant P.W.6 had sustained following injuries:- (i) One penetrating injury bleeding over exterior and front of chest 1”x1/4”x limb deep caused by sharp cutting weapon. (ii) One tender swelling 2”x1” right shoulder simple in nature caused by hard and blunt substance. (iii)One tender swelling 1 1/2" x 1” left shoulder simple in nature caused by hard and blunt substance. Injury no.1 was dangerous to life as limb was preferrted, wound was smoking air. Injury No.1 was dangerous to life. In the opinion of the doctor the injury no.1 might have been caused by bhala and rest by lathi. During course of prosecution, the doctor had accepted suggestion of the defence that the injury no.1 was possible due to fall on pointed substance. Therefore, with regard to presence of injury over the person of P.W.6 is very much clear and defence could not be able to smash the same. So far suggestion is concerned, it has to be gathered from the evidences of the P.Ws Patna High Court CR. REV. No.803 of 2002 (5) dt.15-07-2013 5 whether there was occasion for the same. 8. P.Ws.3 and 4 are hostile witness while the evidence of P.W.2, own brother of P.W.6, the informant, is hearsay one so far assault over informant is concerned because of the fact that he had not seen the occurrence. 9. Now remains the sole evidence of P.W.6. He had stated that on the alleged date at about 8 A.M. while he was going to meet nature’s call and as soon as he reached near the house of accused on an order of Harihar Mahto, Nagendra Mahto gave bhala blow over his chest. Kashi, Birendra, Bharat, Narsingh assaulted with lathi. On hue and cry Hargun and Baleshwar came and intervened into the matter whereupon other had assaulted Hargun. Then thereafter, they all have escaped therefrom. He was taken to Bettiah hospital where Darogaji had taken his fardbeyan. During cross-examination at para-2, he stated that the case instituted by Harihar Mahto got dismissed. In para-3 he had narrated the genesis of occurrence. In para-4 he had given the topography. In para-6, para-8 he had detailed how the occurrence had taken place. After going through those relevant paras, it is evidence that the victim had detailed the event whereunder he was assaulted at the hands of the accused and defence could not be able to smash his evidence. Patna High Court CR. REV. No.803 of 2002 (5) dt.15-07-2013 6 10. P.W.5 happens to be the investigating officer. He has stated that on 09.06.1988 at about 10.30 A.M. he received fardbayan of Nageshwar Singh from town P.S. and on the basis thereof case was registered and he took up investigation. He had gone at place of occurrence, examined the witnesses and obtained the injury report and submitted chargesheet only against Harihar Mahto, Nagendra Mahto, Kashi and Bharat Mahto while Birendra and Singhashan were not sent up for trial. Then attention has been drawn towards to the evidence of hostile witnesses P.Ws.3 and 4. During cross-examination at para-2 he has admitted that he had not seen anything at the place of occurrence nor he found any sign. In para-3, the defence on his own drew attention towards the statement of Hargun(P.W.2) wherein he shown his status as an eye witness to the occurrence. 11. Defence had also examined two D.Ws. as well as also exhibited, sale deed as Ext-A. From the evidence of both the D.Ws., it is apparent that dispute in the background of measurement of land happens to be an admitted one. 12. Thus, after analyzing the evidence available on record, it is crystal clear that the evidence of P.W.6, the informant is found unshaken with regard to assault over his person. As per Section 134 of the Evidence Act, it is apparent that number of Patna High Court CR. REV. No.803 of 2002 (5) dt.15-07-2013 7 witnesses are immaterial for proving the fact in issue. It is not the quantity rather quality which matters. From the evidence of P.W.6, it is apparent that he had proved his status as a victim and detailed the occurrence even during course of cross-examination he had detailed the occurrence whereunder he sustained injury at the hands of Nagendra Mahto which happens to be fully corroborated and supported with the injury report(Ext-1) as well as deposition of P.W.1. and doctor. 13. Though P.W.1 was suggested that this kind of injury might be possible on the fall over pointed object but no case was placed while cross-examining P.W.6 and therefore, defence could not be found to be benefited by such suggestion. 14. Accordingly, no infirmity is found in the successive judgments nor the sentence so inflicted because of the fact that the procedure of sentencing demands that the punishment should be inconsonance with the gravity of the offence. 15. Accordingly, petition is dismissed. Petitioner is on bail. His bail bond is cancelled. He is directed to surrender before the learned Trial Court to serve out the remaining part of sentence. B.Kr./- (Aditya Kumar Trivedi, J)