Patna High Court
Mukund Mahto And Ors vs State Of Bihar on 31 January, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.83 of 2004
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1. Mukund Mahto son of Late Bhola Mahto.
2. Sukhdeo Mahto son of Late Bhola Mahto.
3. Mukhdeo Mahto son of Late Bhola Mahto.
4. Deep Narain Mahto son of Late Bihari Mahto.
5. Bhutti Mahto son of Shri Sukhdeo Mahto.
6. Nagendra Mahto son of Shri Sukhdeo Mahto.
7. Ramashray Mahto son of Jadu Mahto, all are residents of Village -
Bajitpur, P.S. Basantpur, District Siwan.
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Prince Kumar Mishra (Amicus Curiae)
For the Respondent/s : Mr. A.M.P. Mehta, APP
For the Informant : Mr. Raghav Prasad, Advocate
: Ms. Urmila Kumari, Advocate
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 31-01-2024
The present appeal has been preferred by the
appellants/convicts under Section 374(2) of the Code of
Criminal Procedure (hereinafter referred to as 'the Code')
challenging the impugned judgment of conviction and order of
sentence dated 05.02.2004 passed by learned 1st Additional
Sessions Judge, Fast Track Court, Siwan in Sessions Trial
No.621/428 of 1996/2002 arising out of Basantpur P.S. Case
No. 36 of 1996 whereby the concerned Trial Court has
convicted all seven appellants under Sections 323 and 147 of the
Indian Penal Code (in short 'IPC') and sentenced them to
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
2/18
undergo rigorous imprisonment for one year for the offence
punishable under Section 323 of the IPC and undergo rigorous
imprisonment for one year for the offence punishable under
Section 147 of the IPC. All sentences shall to run concurrently.
2. The case of the prosecution is based upon written
information of the informant namely Md. Chand/P.W. 4 that on
07.04.1996
at about 10:30 AM appellants/convicts alongwith
their family members came over disputed land, where bricks
were stored and started to take it away, which was objected by
his father namely Abdul Samad. On said objection, aforesaid
appellants/convicts started assaulting him with lathi, bhala,
farsa etc., resultantly an alarm was raised by his father Abdul
Samad, hearing which, informant alongwith Md. Qyum,
Tasruddin and Abada Khatoon came over there to save him from
the hands of accused persons but they were also assaulted by
accused persons, where they received several injuries. It is
further stated that appellants/convicts Deep Narain Mahto
snatched one wrist watch of HMT, Kohinoor made having cost
of Rs. 7,150/- from his wrist. His father (P.W. 7) in injured
condition was taken to nearby Government Hospital but as he
became unconscious he was further referred to Siwan. It appears
that informant/P.W. 4 claimed through his written information
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
that during aforesaid occurrence assault was made with the
intention to cause death, which arises out of previous enmities.
3. On the basis of aforesaid written information
police registered Basantpur P.S. Case No. 36 of 1996 under
Sections 147, 148, 149, 341, 307, 323, 324, 337 & 379 of the
Indian Penal Code.
4. On the basis of material available on record, as
collected during the course of investigation, learned
Jurisdictional Magistrate, took cognizance, and committed the
case to the Sessions Court, under Section 209 of the Cr.P.C.,
after compliance of provision as available under Section 207 of
the Cr.P.C, for its trial and disposal. Learned Trial Court
registered this case as Sessions Trial No. 621 of 1996 and
framed charges on 15.05.2001 under Sections 148 and 307/149
of the IPC against appellants/accused persons on the basis of
material available on records, which were explained to accused
persons separately, which they plead "not guilty" and claimed
trial.
5. To substantiate its case, the prosecution has
examined altogether eight witnesses. They are:-
P.W. No(s). Name
P.W. 1 Tasruddin
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
P.W. 2 Md. Qyum
P.W. 3 Sahban Mian
P.W. 4 Md. Chand
(informant)
P.W. 5 Noor Mohammad
P.W. 6 Abada Khatoon
P.W. 7 Abdul Samad
P.W. 8 Jai Prakash Srivastava
(formal witness)
6. Apart from the oral evidence, the prosecution has
also relied upon following documents/exhibits, in order to prove
the charges :-
Exhibit No(s). List of documents
Exhibit 1 Written Information
of informant
Exhibit 2 Formal F.I.R
Exhibit 3 Copy of charge-sheet
Exhibit 4 Para No. 1-54 of the
Case Diary
Exhibit 5
Injury Reports of
Exhibit 5/2 injured.
Exhibit 6
Exhibit 6/1 Letter written by the
I.O. for injury report
Exhibit 7 Discharge ticket of
Abdul Samad
Exhibit 8
Exhibit 8/2 Cash Memos of
medicine
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
7. The statement of the appellants/accused were
recorded under Section 313 of the Code after stating
incriminating evidences/circumstances as surfaced during the
course of trial, which they denied and shows their complete
innocence.
8. No witness was examined in support of defence,
whereas defence has relied upon following documents/exhibits
in order to defend the charges:-
Exhibit No(s). List of documents
Exhibit A Land bearing Khata
showing area 13 katha,
3 dhur, 10 dhurki
Khatiyani land of
appellants.
Exhibit A/A Khatiyan in the name
of Bhola Mahto, said
land is alloted khasra
1055 yards (total area
of 16 decimals).
Exhibit B F.I.R. lodged by
Sukhdeo Mahto as
Basantpur P.S. Case
No. 35 of 1996 dated
07.04.1996.
Exhibit B/1 Documents of
Basantpur P.S. Case
No. 139/91.
Exhibit C Order dated 15.04.1996
passed in Basantpur
P.S. Case No. 35 of
1996 by Chief Judicial
Magistrate, Siwan.
Exhibit D Forwarding letter of
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
Basantpur P.S. Case
No. 35 of 1996.
9. On the basis of materials surfaced during the
course of investigation and after perusal of documents as
exhibited during the course of trial, learned Trial Court acquitted
appellants/accused for the rest of the charges but convicted for
the offence punishable under Section 323 & 147 of the IPC and
sentenced them to undergo rigorous imprisonment for the period
of one year, as discussed above, being aggrieved
appellants/accused preferred the present appeal.
10. Hence, the present appeal.
11. Learned amicus appearing on behalf of the
above named appellants/accused submitted that finding of
learned Trial Court as to secure conviction under Section 323 &
147 of the IPC is completely perverse on its face. It is pointed
out that the doctors who authored the injury reports were not
examined during the course of trial and as such in want of their
examination it cannot be said that injury report was proved and
therefore, there is no occasion to read those injury reports as an
evidence. It is also pointed out that I.O. was also not examined
in this case as to establish the place of occurrence and to prove
fardbeyan, FIR etc. Learned amicus also pointed out that non-
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
examination of I.O. also deprived appellants/convicts from their
valuable right of defence as they could not contradict the
attention drawn to prosecution witnesses regarding occurrence
and such, failed to avail valuable rights as available under
Section 145 of the Indian Evidence Act. In support of his
submissions he relied upon the legal report of Hon'ble Supreme
Court in the case of Ravishwar Manjhi and Others Vs. State
of Jharkhand as reported in (2008) 16 SCC 561. There is no
recovery of any weapons during the course of investigation. It is
also submitted that this is not a case of prosecution, where no
injury was caused to informant and others and therefore the
conviction under Section 323 of the IPC even without proving
the injury report cannot be said correct in terms of law. It is also
submitted by learned amicus that regarding said occurrence
Basantpur P.S. Case No. 35 of 1996 was also lodged by
appellants/convicts where they also received injuries but said
injuries were not explained by witnesses/informant during the
course of trial. Non-explanation of injuries also appears fatal to
the prosecution. In support of his submissions learned amicus
relied upon the legal reports of Hon'ble Supreme Court in the
matters of State of Karnataka Vs. Bhaskar Kushali
Kotharkar and Others as reported in (2004) 7 SCC 487 &
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
Rajesh Patel Vs. State of Jharkhand as reported in (2013) 3
SCC 791.
12. Learned APP duly assisted by learned counsel
for the informant, while opposing the appeal submitted that on
perusal of injury report it appears that informant and other
prosecution witnesses received serious injuries on their vital
parts of body. It is submitted by learned counsel for the
informant that appellants/accused were encroachers over the
land, which belongs to informant and others.
13. I have perused the lower court records carefully
and gone through the evidences available on record and also
considered the rival submissions as canvassed by learned
counsel appearing on behalf of the parties.
14. As to re-appreciate the evidences while
disposing the present appeal, it is apposite to discuss the
evidences available on the record, which are as under:-
15. P.W. 4 Md. Chand (informant) deposed
during the course of trial that all above named
appellants/convicts trespassed to their plot and when his father
Abdul Samad (P.W. 7) objected appellants/accused they
assaulted him with sharp edged weapons like farsa, bhala etc.,
where instigation was made on the part of Mukund Mahto. It
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
also appears from his depositions that assault was made in
general and omnibus manner. He could not explain the injury as
received by appellants/convicts during the course of occurrence
and in his examination-in-chief, he narrated the same version as
he stated through his written information, which is exhibited as
Exhibit 1, which dealt above as "brief case of prosecution" and
as such, same not required to be repeated for the sake of brevity
and convenience.
15.1. Upon cross-examination it was stated by him
that present case is regarding land dispute between the parties.
He also stated about previous enmities. It appears from his
deposition that he alongwith other injured reached hospital
somewhere between 11 to 12 Hrs. He also stated that
appellants/accused were arrested but enlarged on bail on the
same day. He specifically stated that his house is situated at a
distance of 200 yards from the place of occurrence and he
arrived at the place of occurrence in next one minute of the
occurrence after hearing alarm. He did not notice any injury
upon the body of appellants/convicts. His father (P.W. 7) was
assaulted before him. He did not saw any blood oozing from his
body immediately on his arrival at the place of occurrence,
where he stayed for 1-2 minutes. He claimed to saw all seven
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
appellants/convicts together, firstly at the place of occurrence.
He categorically stated that he did not saw any marks of injury
on the body of his father (P.W. 7).
16. P.W. 1 Tasruddin stated in his cross-
examination that there was land dispute between the parties for
which proceeding was also initiated under Section 144 of the
Code. He stated that he received assault from the backside of the
farsa and thus appearing first time making a totally different
story during the course of trial. He stated that no blood was
fallen to the ground.
17. P.W. 2 Md. Qyum in his cross-examination
stated mainly about land dispute and added that Abdul Samad
(P.W. 7), did not met him at hospital rather he talked with him
when he returned after his treatment from Patna. This material
aspect regarding treatment of P.W. 7 in Patna was not disclosed
in written information, authored by Md. Chand (P.W. 4).
18. Almost all injured prosecution witnesses i.e.,
P.W. 3, P.W. 5, P.W. 6 & P.W. 7 narrated same fact through their
examination-in-chief and same not required to be repeated here.
18.1. Upon cross-examination P.W. 3 stated that
land disputes are pending between the parties since last 10-12
years. He stated to arrive at the place of occurrence on alarm.
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
He went there alone and did not saw any mark of assault on the
body of Abdul Samad (P.W. 7). It was stated that P.W. 7 was
assualted by Mukund Mahto, Deep Narain Mahto and Ramshray
Mahto. He was also assaulted by lathi.
18.2. Upon cross-examination P.W. 5 also affirmed
land dispute between the parties. It was stated that no person
from Nagendra side (appellant/accused) received any injury. He
stated that Abdul Samad (P.W. 7) was assaulted in general
manner by appellant/accused during the course of occurrence by
lathi.
18.3. Upon cross-examination P.W. 6 supported the
factum of land dispute and stated that Samad (P.W. 7) became
senseless during the course of occurrence out of assault caused
by appellants/accused. He also stated to received injuries during
the course of occurrence.
18.4. Upon cross-examination P.W. 7 injured father
of informant supported land dispute between the parties and
stated that he gained his sense at Patna in Tara Nursing Home.
He received injury from the backside of farsa. He failed to
disclose anything what happened after he became unconscious.
19. It appears that I.O. of this case was not
examined during the course of investigation depriving
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
appellants/accused to avail their right as to contradict the
attention, which was made contrary to the statement as recorded
under Section 161 of the Code and as such they could not avail
an opportunity to impeach the credibility of witnesses as per
Section 145 of the Indian Evidence Act and as such, it appears
that non-examination of I.O. deprived appellants from their
valuable right of defence. There is no recovery of weapons and
in want of examination of Investigating Officer, F.I.R. and place
of occurrence also cannot be said proved.
20. It would be apposite at this stage to reproduce
the legal reports of Hon'ble Supreme Court as reported in the
matters of:-
(a). Bhaskar Kushali Kotharkar (supra),
wherein Hon'ble Supreme Court in Para- 6 of the legal report
observed as under:-
"6. It is true that as a part of fair trial the
investigating officer should be examined
in the trial cases especially when a
serious sessions trial was being held
against the accused. If any of the
prosecution witnesses give any evidence
contrary to their previous statement
recorded under Section 161 Cr. P.C. or if
mere is any omission of certain material
particulars, the previous statement of
these witnesses could be proved only by
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
examining the investigating officer who
must have recorded the statement of these
witnesses under Section 161 Cr. P.C."
(b). Ravishwar Manjhi (supra), wherein Hon'ble
Supreme Court in Para- 27 of the legal report observed as
under:-
"27. The investigating officer in a case
of this nature should have been
examined. His examination by the
prosecution was necessary to show that
there had been a fair investigation.
Unfortunately, even no site plan was
prepared. There is nothing on record to
show as to the exact place where the
occurrence had taken place. It is stated
that the house of the parties is divided by
a road. If that be so, it was all the more
necessary to pinpoint the exact place of
occurrence to ascertain who was the
aggressor."
(c). Rajesh Patel (supra), wherein Hon'ble
Supreme Court in Para- 18 of the legal report observed as
under:-
"18. Further, neither the doctor nor the
IO has been examined before the trial
court to prove the prosecution case. The
appellant was right in bringing to the
notice of the trial court as well as the
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
High Court that the non-examination of
the aforesaid two important witnesses in
the case has prejudiced the case of the
appellant for the reason that if the doctor
would have been examined he could
have elicited evidence about any injury
sustained by the prosecutrix on her
private part or any other part of her body
and also the nature of hymen layer, etc.
so as to corroborate the story of the
prosecution that the prosecutrix suffered
unbearable pain while the appellant
committed rape on her. The non-
examination of the doctor who had
examined her after 12 days of the
occurrence has not prejudiced the case of
the defence for the reason that the
prosecutrix was examined after 12 days
of the offence alleged to have been
committed by the appellant because by
that time the sign of rape must have
disappeared. Even if it was presumed
that the hymen of the victim was found
ruptured and no injury was found on her
private part or any other part of her body,
finding of such rupture of hymen may be
for several reasons in the present age
when the prosecutrix was a working girl
and that she was not leading and idle life
inside the four walls of her home. The
said reasoning assigned by the High
Court is totally erroneous in law."
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
21. From the perusal of record it also appears that
Doctors Bhairon Prasad & Dr. Ravibhushan Sharma, were also
not examined during the course of trial. They are author of the
injury report and in want of their examination, it cannot be said
that injury reports of the injured were proved during the couse
of trial so as to read it as an evidence. This fact was also
believed by the learned Trial Court but in a very hypothetical
and casual manner, learned Trial court convicted the appellants
for the offence punishable under Section 147 and 323 of the
IPC. This is not a case of prosecution, where injuries were not
caused during the course of occurrence, rather it was not taken
into consideration as it was "not proved" and in such
background conviction under Section 323 of the IPC mere on
the basis of presumption do not appears lawful.
22. At this juncture it would be appropriate to
reproduce the provisions available under Section 146 & 147 of
the IPC as to understand the meaning of unlawful assembly.
146. Rioting.- Whenever force or
violence is used by an unlawful assembly,
or by any member thereof, in prosecution
of the common object of such assembly,
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
every member of such assembly is guilty
of the offence of rioting.
147. Punishment for rioting.- Whoever
is guilty of rioting, shall be punished with
imprisonment of either description for a
term which may extend to two years, or
with fine, or with both.
23. From the plain reading of aforesaid legal provisions it is
apparent that some force or violence must be used by an
unlawful assembly or by any number of people thereof in
prosecution of common object of such assembly. The common
object as narrated through written information, which is
exhibited as Exhibit 1 and also from all the testimonies of
different prosecution witnesses as it transpires that the assault
was made with an object to cause death of the informant and
other family members but learned Trial Court disbelieved the
same. It is well settled position that mere presence in any
unlawful assembly cannot render a person liable unless there
was a common object and he was actuated by that common
object. It has been dealt by Hon'ble Supreme Court in the case
of Gangadhar Behera and Others Vs. State of Orissa as
reported in (2002) 8 SCC 381. In view of aforesaid, the
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
conviction under Section 147 of the IPC also appears non-
convincing on its face.
24. It is well settled position that Section 323 of
the IPC constitute a separate and distinct offence under the law
for which separate legal ingredients are required to be
established beyond reasonable doubt. It is not so, if injury report
of any injured person "not proved" due to non-examination of
doctors, Court will presume the fact that appellants were caused
atleast "simple hurt" within meaning of Section 323 of the IPC,
by taking a deviating note from the case of prosecution, what
exactly happened in present case.
25. Accordingly, appeal is allowed. The impugned
judgment of conviction and order of sentence dated 05.02.2004
passed by learned 1st Additional Sessions Judge, Fast Track
Court, Siwan in Sessions Trial No.621/428 of 1996/2002 arising
out of Basantpur P.S. Case No. 36 of 1996 are, hereby, set aside.
All appellants are acquitted from the aforesaid charges levelled
against them.
26. The Patna High Court, Legal Services
Committee is, hereby, directed to pay Rs. 5,000/- (Rupees Five
Thousand Only) to Mr. Prince Kumar Mishra, learned Amicus
Curiae in Criminal Appeal (SJ) No. 83 of 2004 as consolidated
Patna High Court CR. APP (SJ) No.83 of 2004 dt.31-01-2024
fee for rendering his valuable professional service for the
disposal of present appeal.
27. Office is directed to sent down the Trial Court
Records (TCR) along with a copy of this judgment to the Trial
Court.
(Chandra Shekhar Jha, J.)
S.Tripathi/-
AFR/NAFR AFR
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