Mohan Jha v. The State of Bihar

.... .... Respondent/s =========================================================== Appearance : (In CR. APP (SJ) No. 78 of 2002) For the Appellant/s : Mr. Pramod Mishra, Adv. Mr. Ramesh Kumar Thakur, Adv. For the State : Mr. C. Jawahar, A.P.P. (In CR. APP (SJ) No. 102 of 2002) For the Appellant/s : Mr. Pramod Mishra, Adv. Mr. Ramesh Kumar Thakur, Adv. For the State : Mr. C. Jawahar, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 19-12-2013 Anjana Prakash, J: The Appellant of Criminal Appeal 78 of 2002 has been 2 Patna High Court CR. APP (SJ) No.78 of 2002 dt.19-12-2013 convicted for the offence under Sections 148 and 304 Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and seven years respectively. The Appellants Laddu Jha and Lalan Jha of Criminal Appeal No. 102 of 2002 have been convicted for the offence under Sections 148 and 324 Indian Penal Code and sentenced to rigorous imprisonment for three years whereas rest of the Appellants have been convicted for the offence under Section 148 Indian Penal Code and sentenced to undergo rigorous imprisonment for three years by the 3rd Additional Sessions Judge, Saharsa, in Sessions Trial No. 109 of 1994 by a Judgment and order of conviction dated 14.2.2002.

The case of the Prosecution according to the Informant is that on

8.11.1990 at about 9.30 A.M., when he and his cousin brother Mahendra Mukhia, went to his field, all the accused persons armed with deadly weapons indiscriminately attacked them. When his cousin brother Bauku Mukhia and Shyam Mukhia arrived, they were also assaulted by the accused persons. During treatment Bauku Mukhia died, and, hence, the accused persons were charged for the offence under Section 304 Indian Penal Code. The reason for the occurrence was that the accused had harvested the paddy crops and the Informant had enquired from the Appellant Bisho Jha as to why they had taken paddy.

During Trial, the Prosecution examined altogether eleven 3 Patna High Court CR. APP (SJ) No.78 of 2002 dt.19-12-2013 witnesses whereas the Defence examined only one formal witness.

PW-1, Baidyanath Thakur, is an eye witness who stated that on the date of occurrence, a mob of accused persons had come in which he identified Appellant Laddu Jha, Bisho Jha, Upendra Jha and Prakash Jha, who assaulted the injured. His attention was drawn to the earlier statement that he had not stated specific overt act of Appellant Laddu Jha upon Mahendra Mukhia and Bauku Mukhia.

PW-2, Dr. S.N. Choudhary, held the postmortem of Bauku Mukhia on 5.12.1990 and found one piercing wound on his person which was the cause of death. According to him, the injury was not possible by an arrow.

PW-3, Hari Mukhia, is another eye witness who identified the eleven accused persons. He stated that Mohan Jha had inflicted an arrow injury on Bauku Mukhia, Sohan Mukhia and Shyam Mukhia. He admitted that Laddu Jha had instituted a counter case in which he was an accused. However, he denied any injury having been caused to the accused on the same date.

PW-4, Shyam Mukhia, also stated that Mohan jha had inflicted arrow injury on the deceased. He admitted in his cross- examination that when he reached the place of occurrence, he found a free-fight going on between the parties.

PW-5, Jagan Paswan, and PW-6, Sheonandan Sah, have 4 Patna High Court CR. APP (SJ) No.78 of 2002 dt.19-12-2013 been declared hostile. PW-7 Lakshmi Thakut is a tendered witness.

PW-8, Sohan Mukha, an injured witness stated that he had been assaulted by Appellant Mohan Jha as also the deceased had been shot at with an arrow by him. However, he did not name any other accused persons. He clearly stated that he had seen Bauku Jha, Bisho Jha and Prakash Jha on the place of occurrence. He denied any injuries having been sustained by the accused persons.

PW-9, Mahendra Mukhia, named all the accused persons and once again repeated that Mohan Jha had assaulted Bauku Mukhia with an arrow. He denied that on the date of occurrence any incident of mob violence had taken place in his village.

PW-10, Dr. Sheo Mangal Singh, examined Hari Narain Mukhia and found four simple injuries on his person. He also examined Mahendra Mukhia and found three injuries on his person, one of which was fractured whereas the rest were simple in nature. He had examined the deceased Bauku Mukhia and found one lacerated wound 1” x ¼ “ on his person, caused by hard and blunt substance, which was simple in nature.

PW-11, Bed Prakash, is a formal witness who proved the First Information Report.

DW-1, Brajesh Kumar Pandey, stated about Appellants Laddu Jha and Lalan Jha having been found injured on the 5 Patna High Court CR. APP (SJ) No.78 of 2002 dt.19-12-2013 same day.

On a fair analysis of the evidence discussed above, I find that the noteworthy point is that admittedly there was an occurrence of mob violence and of free-fight in which both the parties had participated. However, the Prosecution witnesses took some pains in denying the fact that the Appellants had also sustained injuries on the very same day. In absence of examination of any independent witness and the non-examination of the Investigating Officer, it would be highly unsafe to rely upon the Prosecution case which is based on a one side story of the Prosecution. Further the Doctor, who conducted the Postmortem, totally contradicted the present case.

Hence, giving benefit of doubt to the Appellants, the Appeal is allowed. The order of conviction and sentence dated

14.2.2002 passed against the Appellants in connection with Sessions Trial No. 109 of 1994 by the 3rd Additional Sessions Judge, Saharsa, is, hereby, set aside.

The Appellants are discharged from the liabilities of their respective bail bonds. (Anjana Prakash, J) Patna High Court, Patna. Dated, the 19th December, 2013. NAFR/S.Ali