Ishwar Mahto vs The State of Bihar

C.M. Prasad, J.—The appeal is against the judgment dated 23.4.1992 passed by the 3rd Additional Sessions Judge, Nawadah in Session Trial No. 331/81/371/ 84/187/87 whereby the appellant has been convicted u/s 307 of the Indian Penal Code and sentenced to undergo R.l. for seven years. The fardbeyan of the case was recorded by police on 21.3.1981 at 2 P.M. in the Pakribarawan Hospital where Daro Mahto was being treated in the hospital. The prosecution case as appearing from the fardbeyan is that on that day (21.3.1981) at 7 A.M. while he was digging Bhitar (a hole for fixing Machan) at that time appellant came and obstructed and he also brought a saif and assaulted him with the saif causing injury on his head, right arm and abdomen. On his cry his wife Panma Devi (P.W. 5) and Sidheshwar (P.W. 4) came there. The informant further stated that his villagers Uday Prasad, Ramashish Mahto, Basudeo Mahto and his son took him to hospital where he was treated and fardbeyan (Ext. 2) was recorded and on the basis of the fardbeyan formal first information report was registered and after completion of investigation charge sheet was submitted and the appellant was put on trial and was convicted and sentenced as stated above.

As many as 8 witnesses were examined by the prosecution. P.W. 1 Ghanshayam Mishra, is a formal witness who has proved the first information report Ext. 1. P.W. 2 is also a formal witness who has proved the fardbeyan Ext. 2. P.W. 3 Daro Mahto is the informant himself, P.W. 4 Sidheshwar Prasad @ Sidheshwar Das is informant''s son and P.W. 5 Panma Devi is the informant''s wife. P.W. 6 Arun Kumar Sinha is a formal witness who has proved the endorsement (Ext. 2) on fardbeyan. P.W. 7 Ashok Kumar Sharma is also a formal witness who proved the writing of the I.O. on the case diary which is marked Ext. 4. P.W. 4 deposed that the I.O. Shivnandan Rajak S.I. is dead. P.W. 8 Dr. Radhika Kumari Sinha is the doctor who examined the injury on the informant.

The appellant has also examined one defence witness. D.W 1 Ganga Prasad, who proved the sale deed (Ext. A) in favour of appellant Ishwar Mahto as well as Kameshwar Mahto and Jugeshwar Prasad in respect of 39 decimal of land including 1.7 decimal of portion of house in which the occurrence is said to have taken place.

P.W. 8 Dr. Radhika Kumari has deposed that she had examined the informant on 21.3.1981 and found the following injuries on his person:

(i) A sharp cutting wound 1.1/2"x1/ 2" x muscle deep on the perital region of scalp.

(ii) A sharp cutting wound 1" x 1''4"x 1''4" on the left side of abdomen.

(iii) A sharp cutting injury 3" x 2" x muscle deep over the right fore-arm. The injuries were simple in nature and according to the doctor it were caused by sharp cutting weapon. The doctor further deposed in his cross-examination that Bhala is a penetrating weapon and the above injury cannot be caused by a Bhala.

The informant P.W. 3 deposed that while he was digging Bhitar the appellant protested and he also brought a saif and pierced the same in his panjara (side rib area of the chest). He fell down then the appellant again gave blow on his head and hand. He was brought on a cot at hospital where he was treated. He identified his signature Ext. 3 on the fardbeyan. In cross-examination he stated that appellant had protested the portion of Dukhi''s house. He also deposed that he was digging Bhithar on the portion of the house belonging to Dukhi. He further deposed that assault took place in the Aangan which is in the share of Dukhi.

P.W. 4 is the son of the informant and according to the informant the P.W. 4 had witnessed the occurrence but P.W. 4 has gone hostile and he deposed that he had not seen the appellant assaulting informant. Thus the son of the informant has gone hostile and he does not support the story of assault at the hands of the appellant.

P.W. 5 Panma Devi is the wife of the informant and she says that while her husband was in Angan the appellant came with a saif fitted on a lathi and assaulted him with that. He further deposed in the cross-examination that four cosharers live in the same Angan. He also deposed that occurrence of assault had taken place for about 1/2 hour and thereafter the accused persons went away receiving assaults. Through this evidence it appears that P.W. 5 means to say that the appellant had been assaulted and thereafter had left the place.

During argument the learned counsel for the appellant argued that in this case there are several infirmities in the case of the prosecution which would go to show that the prosecution story is not believable and the prosecution has not been able to prove its case beyond shadows of doubt.

Firstly the learned counsel argued that in this case the informant stated in fardbeyan that on his cry the wife Panma Devi (P.W. 5) and son Sidheshwar (P.W. 4) had come and besides them the persons of the locality had also witnessed the occurrence. The learned counsel argued that P.W. 4 who is the son of the informant has gone hostile and he deposed that he did not see any kind of assault at the hands of the appellant. It is also argued that only the informant''s wife (P.W. 5) Panma Devi has come to support the informant and several neighbours are said to have seen the occurrence but no body has come to support the informant.

Argument was also advanced on this point that the injuries found were caused by sharp cutting weapon but the doctor has said that the above injury may not be caused by Bhala. The learned counsel argued that saif is a penetrating weapon fitted on the top of lathi. He also argued that the informant (P.W. 3) deposed that appellant pierced saif in his Panjara and two injuries were also caused by means of the saif. It was argued that saif is a pointed and penetrating weapon and the nature of injury must be penetrating wound. The appellant''s counsel refers to the evidence of the doctor P.W. 8 and pointed out that the doctor has found sharp cutting wound caused by sharp cutting weapon. It was pointed out that doctor has stated that the injuries were caused by sharp cutting weapon such as saif but in fact the saif is not a sharp cutting weapon but a penetrating weapon as also mentioned by the informant in his evidence where he deposed that the saif was pierced in his Panjara.

Thus on considering these materials the weapon saif appears to be a penetrating weapon but the doctor has found three sharp cutting injuries caused by sharp cutting weapon. The learned A.P.P. argued that a pointed weapon can cause incised wound if the weapon is used in a standing fashion. No doubt incised wound could be caused if the weapon is used in a slanting fashion but there is no evidence to this effect that the weapon was used in such a manner. Under the circumstances the nature of the injury as found by the doctor creates a doubt over the prosecution story that the informant was assaulted and injured at the hands of the appellant in the manner as alleged. The learned counsel for the appellant refers to the evidence of the informant P.W. 3 para 2 that the appellant was digging in the portion of the house which belonged to Dukhi. Learned counsel also argued that according to the evidence of P.W. 5 all the cosharers were living in the same Angan. He argued that when the appellant was digging Bhithar''m the portion of the house belonging to Dukhi the informant had no reason to protest the same. He also argued that in such case when the Bhithar was being dug in the wall of Dukhi''s house Dukhi could have been best witness to say about the occurrence and the cause for the occurrence but Dukhi has not been examined by the prosecution. The submissions of the learned counsel carry substantial reasons and the non examination of Dukhi appears to have affected the case of the prosecution aversely.

P.W. 5 deposed in para 5 of her evidence that the occurrence of assault continued for about half an hour and then the appellant went away after receiving assault. Regarding this evidence the learned counsel for the appellant argued, that according to the evidence of P.W. 5 it was the appellant who had received hurt during the occurrence and left the place. When the appellant had received hurt the matter is not simple that it was a unilateral assault at the hands of the appellant. It was argued that in view of this evidence of the P.W. 5 this goes to suggest that the prosecution has not come with clean hands. This submission of the appellant''s counsel is also important and it goes to suggest that the manner of occurrence is not the same as alleged in the case of the prosecution. Thus considering the facts and circumstances of the case and the infirmities as discussed above I find that the prosecution has not been able to prove its case beyond the shadow of doubt. Accordingly the charge is held not proved and the appellant is acquitted of the charge. In the result the appeal is allowed and the appellant is acquitted of the charge. The conviction and sentence as passed by the trial court is hereby set aside. The appellant is discharged from the liability of the bail bond executed by him.