Mahendra Mahto vs The State of Bihar

Hemant Kumar Srivastava, J.—All the abovesaid appellants have been convicted and sentenced by learned Additional Sessions Judge-II, Samastipur in Sessions Trial Nos. 265 of 1989/165 of 2000 by common judgment of conviction and order of sentence dated 9.6.2000 and, accordingly, both the Criminal Appeals were heard together and the aforesaid appeals are being disposed of by this common judgment. From perusal of paragraph-47 of impugned judgment, I find that the appellant in Cr. Appeal No. 210 of 2000 was found guilty for the offences punishable under Sections 148, 324 and 307 of the Indian Penal Code and appellants in Cr. Appeal No. 214 of 2000 were found guilty under Sections 147, 323, 325 of the Indian Penal Code but they were acquitted of the charge for the offences under Sections 307/149 of the Indian Penal Code but again, in the same paragraph, learned trial court acquitted the appellant in Cr. Appeal No. 210 of 2000 of the charge framed u/s 324 of the Indian Penal Code on the ground of compromise and similarly, appellants in Cr. Appeal No. 214 of 2000 were acquitted of the charges framed under Sections 323 & 325 of the Indian Penal Code. Furthermore, I find from perusal of the impugned judgment that the learned trial court sentenced the appellant in Cr. Appeal No. 210 of 2000 to undergo rigorous imprisonment for three years for the offence punishable u/s 148 of the Indian Penal Code and to undergo rigorous imprisonment for ten years for the offence punishable u/s 307 of the Indian Penal Code, however, both the sentenced were directed to run concurrently. The learned trial court released the appellants in Cr. Appeal No. 210 of 2000 on probation u/s 4(1) of the, Probation of Offenders Act on their entering into bonds of Rs. 2,000/- each with one surety of the like amount each.

In brief, prosecution case is that, P.W. 3 Achhay Lal Mahto gave his fardbeyan to ASI of Pusa Police Station on 28.3.1986 at 6.00 p.m. to this effect that on 26.3.1986 between 4.00 p.m. to 5.00 p.m. he had gone at the Bathan of Sitaram Mahto and while he was returning to his home from there, and reached on the road, appellants and other accused, being armed with Farsa and Lathi encircled him and asked him not to depose in the case lodged by one, Muneshwari Devi against them. He did not bow down upon the aforesaid pressure and after that, Ram Sagar Mahto exhorted the others to assault him and appellant, Mahendra Mahto gave one Farsa blow causing head injury to him and having sustained injury, he fell down on the earth and thereafter, the aforesaid Mahendra Mahto repeated the farsa blow but that was prevented by Tek Narayan Mahto and then, other appellants assaulted him as well as Tek Narayan Mahto with lathi. On being alarm raised by him; Ram Sagar, Mahendra, Sitaram etc. reached there but they were, too, assaulted by the appellants and other accused with lathi. In the meantime, several villagers assembled there and after that, appellants and other accused fled away. He further stated that he became unconscious and after regaining consciousness in hospital, he made statement.

On the basis of aforesaid statement, Tajpur (Pusa) P.S. Case No. 83 of 1986 u/s 307 & other minor sections of the Indian Penal Code was registered and, accordingly, the formal FIR was drawn up against the appellants and others.

The matter was investigated by the police and after investigation, police submitted charge-sheet for the offence u/s 307 & other minor sections of the Indian Penal Code against the appellants and others.

The cognizance of the offence was taken and the case was committed to the Court of Sessions, in usual way.

The appellants were put on trial and they were charged for the offences punishable under Sections 147, 323, 325, 307 of the Indian Penal Code and the appellant Mahendra Mahto was separately charged for the offences punishable under Sections 148, 324 & 307 of the Indian Penal Code. Charges were denied and appellants claimed to be tried.

In course of trial, prosecution examined altogether 11 witnesses and got exhibited some documents. The statements of appellants were recorded u/s 313 of the Cr.P.C. in which, they reiterated their innocence. The defence also examined three witnesses and got exhibited some documents.

Having heard the parties and considered the materials available on the record, the learned trial court passed the impugned judgment of conviction and sentence order in the manner as stated above.

Learned counsel appearing for the appellants submits that the learned court below passed the impugned judgment of conviction and order of sentence, only on the basis of surmises and conjectures, particularly, in the circumstance, when P.W. 3 Akchhay Lal Mahto specifically, stated at paragraph-22 of his cross-examination that he could not see who assaulted to whom and by which weapon. So, in view of the aforesaid statement of the P.W. 3, the appellant in Cr. Appeal No. 210 of 2000 could not have been convicted for the offence punishable u/s 307 of the Indian Penal Code. He further submitted that moreover, according to prosecution case, the appellant in Cr. Appeal No. 210 of 2000, gave single blow to P.W. 3 Akchhay Lal Mahto and, therefore, Section 307 of the Indian Penal Code is not attracted in this case. He further submitted that one star and so-called injured witness of the prosecution, namely, Tek Narayan Mahto was examined as P.W. 3 but the aforesaid witness has also not supported the prosecution case and stated that the scuffle had not taken place before him and he could not see as to how he got injury in the aforesaid occurrence. He further submitted that as a matter of fact, both the parties compromised the case and being agnate of the appellants, the informant as well as other so-called injured witnesses were not interested to contest the case but in spite of that, the learned trial court convicted the appellants though by the impugned judgment itself, the learned court below acquitted the appellants of some charges on the ground of compromise and, therefore, it is explicit clear that the learned trial court, permitted the appellants to compound the offence.

On the contrary, learned Additional. Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that P.W. 3 sustained grievous injury on his head which is evident from the deposition of P.W. 5 who proved the injury report of P.W. 3 and the injury report of P.W. 3 reveals that he sustained grievous injury on his head and, therefore, learned trial court, rightly, convicted the appellant in Cr. Appeal No. 210 of 2000 for the offence u/s 307 of the Indian Penal Code.

Having heard the contentions of both the parties, I have gone through the record.

I find that P.W. 2 Mahendra Mahto, P.W. 3 Akchhay Lal Mahto, P.W. 7 Ram Pukari Devi, P.W. 8 Sitaram Mahto were recalled in course of trial and they were put for further cross-examination. Furthermore, I find that all the abovesaid prosecution witnesses admitted that both the parties have settled their dispute amicably and furthermore; the aforesaid prosecution witnesses stated that they could not see, who assaulted to whom. Furthermore, the aforesaid witnesses admitted that there was counter case also which had been lodged on behalf of the appellants for the occurrence of the same day and the compromise in the aforesaid counter case, has already taken place.

P.W. 4 is formal witness whereas; P.W. 5 is doctor. Similarly, P.W. 6 is a formal witness.

P.W. 9 Ram Sunder Das and P.W. 10, Tek Narayan Mahto have been declared hostile although aforesaid two prosecution witnesses are injured witnesses and according to prosecution case, they had sustained injury in course of alleged occurrence but the aforesaid witnesses, specifically, stated that they could not say as to how they got injury.

Similarly, P.W. 11 is also a hostile witness who has stated nothing against the appellants.

On perusal of the entire evidences available on the record, it is explicit clear that although at the initial stage of their examination, prosecution witnesses supported the prosecution story but when they were recalled for further cross-examination, they did not support the prosecution case and made contradictory statements. Moreover, the prosecution witness No. 3 namely, Akchhay Lal Mahto, who sustained injury on his head, said to be caused by the appellant in Cr. Appeal No. 210 of 2000, had admitted this fact that he could not see who assaulted to whom and, therefore, in view of the aforesaid facts and circumstances, I am of the opinion that, the appellant in Cr. Appeal No. 210 of 2000 could not have been convicted for the offence under Sections 148 & 307 of the Indian Penal Code on the basis of evidences of prosecution witnesses.

So far as conviction of appellants in Cr. Appeal No. 214 of 2000 is concerned, it is apparent from the impugned judgment of learned trial court that they were acquitted by the learned trial court for the offence under Sections 323 & 325 of the Indian Penal Code. Although learned trial court has not mentioned in the impugned judgment as to why the appellants in Cr. Appeal No. 214 of 2000 were directed to furnish bonds u/s. 4(1) of Probation of Offenders Act but it appears to me that the learned trial court directed the abovesaid appellants to furnish bonds for the offence punishable u/s 147 of the Indian Penal Code, in this connection, I have to say that when the main offence had already been compromised between the parties and on the basis of aforesaid compromise, the aforesaid appellants had already been acquitted of the charge, there was no need to convict and sentence the aforesaid appellants for the offence u/s 147 of the Indian Penal Code. On the basis of aforesaid discussions, both the abovesaid Cr. Appeals are allowed and impugned judgment of conviction and order of sentence is, hereby, set aside. All the abovesaid appellants are acquitted of the charges framed against them. The appellants are on bail. They are discharged from the liabilities of their bail bonds.