Ram Ekbal Mahto vs State Of Bihar
2022 Latest Caselaw 3237 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.242 of 1995
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Ram Ekbal Mahto, son of Late Yadu Mahto, resident of village Mauzampur, Police Station- Hajipur Sadar, District- Vaishali.

... ... Appellant Versus The State of Bihar

... ... Respondent ====================================================== Appearance :

For the Appellant/s : Mr.Naresh Chandra Verma, Advocate For the Respondent/s : Kumari Shashi Bala Verma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 24-06-2022

This criminal appeal has been filed on behalf of the

appellant against the judgment and order dated 30.6.1995 passed

by learned Sessions Judge, Vaishali at Hajipur in Sessions Trial

No. 229/1988 (G.R. Case No. 1159/1985) arising out of Hajipur

Sadar P.S. Case No. 120/1985 whereby and whereunder the sole

appellant has been convicted under Section 302 read with Section

34 of the Indian Penal Code and has been sentenced to undergo

rigorous imprisonment for life.

It is the case of the prosecution that on 22.06.1985 at

about 1 p.m. the deceased Dinesh Kumar Singh went to the house

of the informant and asked him to accompany for plucking

mangoes in village Izra. The informant along with deceased Patna High Court CR. APP (DB) No.242 of 1995 dt.24-06-2022

Dinesh Kumar Singh left for village Izra on bicycle and reached

the house of Ram Ekbal Mahto (appellant). After leaving bicycle

at the door, they went to nearby orchard. A labourer of the

deceased namely Bindeshwar Paswan (P.W.-1) also reached there

with bags and bamboos. The informant climbed on to the mango

tree and started plucking mangoes. The deceased and P.W.-1 were

collecting the mango on the ground. In the meantime, the appellant

came there and asked the deceased as to why he was plucking the

mangoes upon which an altercation took place in between them. In

the meantime, Yadu Mahto (co-accused) arrived with lathi and

assaulted the deceased due to which he fell down whereafter the

appellant is said to have assaulted the deceased with hasua. The

appellant chased the informant and caught hold of him, however,

of his plea, he left him. Bindeshwar Paswan (P.W.-1) after seeing

the deceased lying in injured condition fled away. On hulla,

several persons assembled there. The deceased succumbed to the

injuries at the spot. The motive behind the occurrence alleged in

the F.I.R. is that the deceased and accused persons are patidars and

there was dispute over partition of property between them. The

fardbeyan of the informant was recorded at 4.30 on the same day

at the place of occurrence on the basis of which Hajipur Sadar P.S.

Case No. 120/1985 was registered against two accused persons. Patna High Court CR. APP (DB) No.242 of 1995 dt.24-06-2022

After completion of investigation, the police submitted

charge-sheet against both the accused persons. The case was

committed to the Court of Sessions. During the course of trial,

prosecution examined as many as eight (08) prosecution witnesses

viz. P.W.-1 Bindeshwar Paswan, P.W.-2 Sita Paswan (informant),

P.W.-3 Ramjee Singh, P.W.-4 Mohan Singh, P.W.-5 Baleshwar

Singh, P.W.-6 Arun Kumar Singh, P.W.-7 Dr. Bhola Prasad (doctor

who conducted post mortem of the deceased) and P.W.-8 the

investigating officer. P.W.-1, P.W.-2 & P.W.-3 have claimed to be

eye witnesses. P.W.-4 and P.W.-5 were examined as being seizure

witness. P.W.-6 was Judicial magistrate who recorded the

statement under Section 164 Cr.P.C. The defence has not

examined any witness in support of its case.

It is the case of the appellant before this Court that the

prosecution has failed to prove the place of occurrence. It is also

contended that the presence of the eye witnesses is also not proved

beyond reasonable doubt for the reason that there is material

inconsistencies in the testimony of all the eye witnesses. It has also

been argued that the ocular evidence of assault is not corroborated

with the medical evidence i.e. the post-mortem report of the

deceased. It is a case of false implication due to property dispute

between the parties.

Patna High Court CR. APP (DB) No.242 of 1995 dt.24-06-2022

Learned counsel appearing for the State has submitted

that the judgment of conviction passed by the Court below needs

no interference. The prosecution has been able to prove the guilt of

the appellant beyond reasonable doubt.

We have heard learned counsels for the parties and

considered the materials available on record. Following issues

arise for consideration in this case:-

(i) Whether the prosecution has been able to establish

the place of occurrence beyond reasonable doubt?

(ii) Whether there is material contradiction with regard

to the presence of eye witnesses at the relevant time at the place of

occurrence? And

(iii) Whether the ocular evidence is inconsistent with the

medical evidence so far as manner of occurrence is concerned?

Now adverting to the first issue, from perusal of the

order under challenge, we find that by order dated 22.07.1992, the

Trial Court amended the place of occurrence in the charge to the

effect that in place of village Gauspur Izra, village Mauzampur

was added. In our opinion, alteration of charge can only be with

respect to the offence and not with respect to any material fact

such as time of occurrence, date of occurrence, place of occurrence

etc. Therefore, the order dated 22.07.1992 is not tenable in the Patna High Court CR. APP (DB) No.242 of 1995 dt.24-06-2022

eyes of law. However, at this stage when this appeal has been

pending for almost 27 years, we refrain from giving a finding on

the merit of such order. As per the F.I.R., the deceased was asked

by P.W.-2 (informant) to accompany him for plucking mangoes at

village Izra. However, according to P.W.-1, the place of occurrence

is village Mauzampur. P.W.-1 in his cross-examination has stated

that village Mauzampur and village Izra are two different villages

situated adjacent to each other. From perusal of the inquest report,

it appears that the dead body was found at village Gauspur Izra

which is also supported by the examination-in-chief of P.W.-8

(I.O.). Therefore, from a careful reading of the testimonies of the

above referred witnesses including the I.O., it is clear that the

prosecution has completely failed to establish the place of

occurrence as there is inconsistency in the testimony of witnesses.

The Hon'ble Supreme Court in Syed Ibrahim versus State of

Andhra Pradesh reported in (2008) 10 SCC 601 has held that

when the place of occurrence itself has not been established, it

would not be proper to accept the prosecution version.

While adverting to the second issue formulated as

above, from perusal of the testimonies of P.W.-1 and P.W.-2, we

find that in their statement, they speak about having seen the

incident but do not state regarding the presence of P.W.-3 at the Patna High Court CR. APP (DB) No.242 of 1995 dt.24-06-2022

place of occurrence at the time when crime was being committed.

From perusal of testimony of P.W.-3, we find that P.W.-3 has

categorically stated that he has not seen P.W.-1 and P.W.-2 at the

place of occurrence at the relevant time. Though, it has been stated

by him that both P.W.-1 and P.W.-2 were known to him, therefore,

it is clear that there is contradiction in the testimonies of all the eye

witnesses with regard to their presence at the place of occurrence

at the relevant time. Hence, the prosecution has failed to prove

their presence at the place of occurrence at the relevant time

beyond reasonable doubt.

Coming to the third issue, from perusal of the record, it

transpires that the informant in the fardbeyan has not made any

specific allegation regarding manner of assault and had only

alleged that the appellant assaulted the deceased by hasua.

However, during trial the prosecution witnesses consistently

deposed that the appellant has given a hasua blow on the neck of

the deceased after the deceased had fallen by his back on the

ground. However, the post-mortem report shows that the deceased

had sustained two injuries which are as follows:-

(i) Cut wound sharp in nature at the left side of occipital

bone vertically situated. Direction of wound was towards right side

3 ½" x 3/4"x 2" touching the occipital bone.

Patna High Court CR. APP (DB) No.242 of 1995 dt.24-06-2022

(ii) There was softening of the left side of the skull at the

region of temporal and parietal bone of skull 4" x 3" in size. On

dissection, there was fracture of some part of left side of frontal

bone, fracture of parietal bone and temporal bone. On removal of

fracture bone, there was rupture of membrane and laceration of

brain substance with accumulation of blood clots.

In the opinion of the doctor, injury No. 1 is caused by

sharp instrument and hard and blunt substance was used in case of

the injury No. 2. From perusal of the post-mortem report, it is

evident that no injury has been sustained by the deceased on the

front side of the neck rather the injury No. 1 which could be

attributed to the appellant is on the occipital bone. The deceased

had fallen down by his back with the face upward. Therefore, it

was not possible for the appellant to give hasua blow on the back

of the neck of the deceased. None of the witnesses has stated that

the deceased was hit on the back of his neck. The injury No. 1 as

sustained by the deceased could not have been caused by the

appellant in the manner as narrated by the prosecution, if the

deceased had fallen down on his back with his face upward. Thus,

the allegation of assault alleged against the appellant is

inconsistent with the medical evidence available on record. At this

point, we put reliance upon the case of Ram Narain Singh versus Patna High Court CR. APP (DB) No.242 of 1995 dt.24-06-2022

State of Punjab and Ama Singh & Ors. versus State of Punjab

reported in (1975) 4 SCC 497 wherein the Hon'ble Supreme Court

has held that inconsistency between the ocular and medical

evidence is a most fundamental defect in the prosecution case and

unless reasonably explained, it is sufficient to discredit the entire

case.

Lastly, the possibility of false implication also cannot be

ruled out as there is admitted property dispute between the parties.

In view of the above, we allow the present appeal filed

by the appellant and set aside his conviction and acquit him from

the charges levelled against him. The appellant is on bail. He is

discharged from the liability of his bail bonds.

(Sudhir Singh, J)

( Chandra Prakash Singh, J) Pankaj/-

AFR/NAFR                NAFR
CAV DATE
Uploading Date          30.06.2022
Transmission Date       30.06.2022