Chandeshwar Mahto vs State of Bihar

Heard Mr. Shambhu Sharan Singh, learned counsel for the appellant and Mr. Binod Bihari Singh, learned APP for the State.

The sole appellant who is now about 90 years old had been charged under Section 304/34 of the Indian Penal Code for committing culpable homicide not amounting to murder. The co-accused Rameshwar Mahto and this appellant were charged together as the allegations were that they had caused death of Baswan Mahto in furtherance of their common intention. The occurrence is said to have taken place on 01.11.1991 at Rampur, P.S.-Bihta, District-Patna.

The prosecution case as appearing from the impugned judgment was that on 01.11.1991 at 8.00 am this appellant along with co-accused Ram Ishwar Mahto were throwing earth in their field by cutting the same with spade. At this stage the victim Baswan Mahto who happened to be the father of the informant went to protest, the matter aggravated and accused Ram Ishwar Mahto (since dead) pushed him down and both the accused assaulted him with pasa (back portion) and the hura i.e. end of the handle of their spades. Basawan Mahto allegedly received injuries on his rib and hydroceal and died there. The informant claims that on hulla he and others reached and saw the occurrence. The police investigated the case and after investigation a charge-sheet was submitted by the police against the accused persons. The accused has pleaded not guilty to the charge. His defence is that the deceased died due to Asthma and that the accused have been falsely implicated out of enmity.

Altogether four witnesses were examined on behalf of the prosecution. The informant is PW-4 who happened to be son of the deceased. PW-1 is grand son of the deceased. PW-2 is another son of the deceased and PW-3 also happened to be the son of the deceased. All supported the case of the prosecution. PW-2 and 3 stated that they were in the house when the nephew (PW-1) came and informed that the accused persons had assaulted the deceased due to which he fell down. In the cross-examination PW-2 has admitted that there were proceedings under Sections 144, 145 Cr.P.C. between his father and the accused persons prior to the occurrence. In course of evidence, it has also come that the accused persons were sons of one Dhodha Mahto who was uncle of the deceased. It has also been admitted by PW-3 that his grand-father Rohan Mahto and Dhodha Mahto were co-sharers of one half each and there had been private partition between them. There were disputes between the parties over the P.O. land. This witness in his deposition has stated that this appellant had assaulted his father on the hydroceal as well as on rib. PW-4 who is informant was also at the house when his nephew Satish (PW-1) came to call him. This witness has claimed that when he went to field with witness Narendra Verma (PW-2) they saw that accused Chandeshwar Mahto and Rameshwar Mahto were throwing earth on their field where boring was being dug and his father protested to that and Rameshwar Mahto pushed his father down and this appellant assaulted his father by pasa of the sapde on his hydroceal.

The learned trial court relied upon the evidence of PW-1 even though he was an interested witness by holding that the evidence shows that the deceased had slept in the preceding night at the boring site and this witness had also slept therewith him. The learned trial court noted the contradiction in the deposition of this witness where he has stated that the accused were cutting earth from the ridge and throwing in their field when his grand-father protested whereas according to the informant the accused persons were throwing the earth inside the boring from the earth spilled over their land on account of the boring, but the learned trial court held that it is a minor contradiction and does not affect the testimony of this witness. Regarding other witnesses, the leaned trial court found that they have stated that they came to know about the occurrence from PW-2.

The trial court also found that there was no independent witness in the case. The FIR of the case was also not proved though the signature of the informant on the fardbeyan was proved. According to learned trial court, despite the efforts taken the I.O. could not be produced and therefore, non-proving of the FIR was not deliberate. The I.O. had not been examined in this case, but according to the learned trial court no prejudice was caused to the accused due to non-examination of the I.O. The trial court noticed that the prosecution had not examined any doctor to prove whether the deceased received any injury or he died as a result of the alleged injuries. The accused on the other hand, has proved the post mortem report filed by the prosecution which was proved by formal witness (D.W.-1). The post mortem report (Ext.-A) was showing that the doctor did not find any internal or external injury on the person of the deceased and he could not ascertain the cause of death. The learned trial court still held that there cannot be any doubt that the accused had assaulted the deceased in the manner as alleged and committed the offence under Section 323 I.P.C.

Learned counsel representing the appellant submits that the view taken by the learned trial court is perverse inasmuch as on the face of the fact that the prosecution had failed to prove any injury and even doctor was not examined on behalf of the prosecution whereas the defence had proved the post mortem report showing that there was no external or internal injury was found on the person of the deceased, there was no reason for the trial court to believe that the deceased was assaulted in the manner as alleged.

Learned APP representing the State has supported the judgment of the trial court, however accepts the factual position as emerging from Ext.-A i.e. the postmortem report which was proved on behalf of the defence.

Having heard learned counsel for the appellant and the learned APP for the State as also upon perusal of the records, I find that the only one witness in this case who is said to be the grandson of the deceased has stated that the accused Ram Ishwar started scuffling with his grandfather Baswan Mahto and pushed him down and then accused Chandeshwar Verma (appellant) assaulted him on his abdomen and on hydroceal. The other witnesses namely, PW-2, PW-3 and PW-4 came to know about the alleged occurrence only from PW-1 when he informed them as they were in their house. In this case no injury was found either external or internal on the person of the deceased. The postmortem report which was proved by a formal witness as Ext.A on behalf of the defence did not show any such observations by the doctor when the postmortem was conducted on the dead body of the deceased. The doctor was not examined on behalf of the prosecution to throw any light on the postmortem report which apparently did not contain any mention of any external or internal injury. A prior enmity between the parties is an admitted fact as it appears that the parties were litigating from before. In such circumstances, I would not accept the uncorroborated testimony of PW-1 to believe that the appellant had caused hurt as envisaged under Section 323 of the Indian Penal Code. The benefit of doubt in this case would go to the accused appellant.

As a result, the judgment under appeal is set aside. The appellant is acquitted giving benefit of doubt and he is discharged from the liability of the bail bond.

The appeal is allowed.