CHANDESHWAR MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellants were tried by Presiding Officer, Fast Track Court, Vaishali at Hajipur in Sessions Trial No.235 of 1990 and while Kalpu Mahto suffered conviction under Section 307 of the Indian Penal Code, the rest two appellants suffered conviction under Section 307 with the aid of Section 34. of the Indian Penal Code and for their conviction, all the three appellants were sentenced to suffer rigorous imprisonment for a term of seven years each. The appellants suffered conviction also under Section 27 of the Arms Act for which they were sentenced to suffer rigorous imprisonment for a term of three years each with rider that all the sentences shall run concurrently.

(2.) THE factual matrix : Allegedly on 6th May, 1988 Jugal Rai (PW 4) and his brother Ram Naresh Rai having noticed appellants plucking vegetable from the field, rushed there and forbade them from plucking vegetable, pursuant to which the appellants came holding fire arms. An altercation ensued pursuant to which on exhortation made by Meghan Mahto, Kalpu Mahto fired shot on his brother which struck left side of his chest and he dropped injured. All attempts for their apprehension on chase failed due to appellants taking recourse to firing while making good their escape. The injured was carried to hospital, pursuant to which his statement was recorded by Pirbahore Police. The said Jugal Rai rendered fardheyan on 11th May, 1988 at the police station, pursuant to which investigation followed, in course of which, for collection of evidence, the Investigating officer recorded statement of witnesses, visited place of occurrence, secured injury report from the doctor and on conclusion of investigation laid charge -sheet before the Court. In the eventual trial that followed, while State examined five witnesses, Laxman Kumar Kislay was examined as Court witness after recording statement of the appellants.

(3.) SUBMISSIONS made on behalf of the appellants to assail the finding recorded by Court below was that even though the doctor was not examined at trial, whose evidence could have been of substantive value, the Trial Court had chosen to record finding of guilt under Section 307 of the Indian Penal Code against appellants placing reliance on the injury report brought on the record with the aid of none else but on Advocate 'sclerk. Contentions are raised that there is no gain saying the fact that the evidence of a witness other than the expert could not be a good evidence or such witness would not be substitute of the expert. Highlighting narrations made by the prosecution witnesses, contentions are raised that though some witnesses had been stating at trial about there being copious blood at the place of occurrence, since Investigating Officer was not examined at trial, there was no objective finding which can strengthen the assertion made by the witnesses. As for belated prosecution argument was that though occurrence was shown to have taken place on 6th May, 1988, it was not before 11th May, 1988 that Jugal Rai (PW 4) had chosen to file a written complaint before the police with regard to the alleged incident and it was urged that in view of the belated action of the prosecution, for which there was no plausible excuse, the bona fide of assertion was open to question as chances of manipulation and embellishment cannot be ruled out. Yet it is urged that though the appellants suffered conviction under Sections 307 and 307/34 of the Indian Penal Code, regard being had to the accusation attributed to them, their case would not fall within four corners of Section 307 of the Indian Penal Code and the last argument was that since the prosecution was launched against appellants in the year 1988 and they had suffered ordeal of protracted prosecution for more than fifteen years, in case finding of guilt recorded by the Court below is upheld by this Court, this mitigating circumstance would deserve merit consideration to judge the extent of sentence to be awarded to the appellants. Contention raised on behalf of the appellants was resisted by learned counsel appearing for the informant who appeared on his own. To appreciate the contentions raised, a brief resume of the narrations made by the witnesses can, however, be noticed with brevity. Reiterating his earliest version which he rendered before the Police, Jugal Rai (PW 4) states about appellants visiting vegetable field of Ram Ishwar Rai (PW 3) holding arms pursuant to which on exhortation made by Meghan Mahto, one of the appellants, Kalpu Mahto fired shot on left side of chest of Ram Naresh Rai who dropped injured. Narrations with sustained consistency in similar terms and veins were made also by Dina Nath Rai (PW 1) who too was in the field when he witnessed the incident. Reference may be had to the evidence of Brit Rai (PW 2) and Ram Ishwar Rai (PW 3). Though former tried to project himself to be an ocular witness, acknowledged in no uncertain terms that shortly after he rushed to the place of occurrence, he found Ram Naresh Rai lying injured and he could not even notice wounds on his chest, and similar had been the evidence of Ram Ishwar Rai (PW 3) also who too stated to have noticed Ram Naresh Ray lying injured and the appellants making good their escape with the arms. He stated to have learned from Jugal Rai (PW 4) about Kalpu Mahto having fired shot on the injured on exhortation made by Meghan Mahto.