DEO NARAIN MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner/informant has challenged the judgment dated 28.01.2003 passed by Additional Sessions Judge, FTC-1, Samastipur in Sessions Trial No. 347/1997/190/2000 whereby and whereunder the O.Ps No. 2 to 8 have been acquitted.

(2.) It has been submitted on behalf of petitioner that the judgment of acquittal recorded by the learned lower court happens to be based upon wrong and flimsy grounds. It has also been submitted that altogether eight PWs have been examined out of whom PW-7 is the doctor who had conducted postmortem over the dead body of Sunil (deceased). From his evidence as well as from the postmortem report, it is evident that deceased Sunil had sustained ante-mortem fire arm injury and that was found the cause of death. Therefore, the version of the prosecution with regard to murder of Sunil by means of fire-arm is fully proved. However, the learned lower court wrongly and illegally took the aforesaid evidence contrary to the prosecution case in the background of presence of semi digested food in the stomach of deceased as well as having the location of fire-arm injury towards downward direction which the doctor had deposed on cross-examination.

(3.) PW-8 is the another doctor who had examined the informant Dev Narain Mahto on 21.03.1996 at about 8.30 a.m. and found injuries over his person caused by hard and blunt substance which sufficiently proved the nature of assault made by one of the O.P.s Shiv Shankar Mahto by butt of rifle over head of informant. There happens to be no adverse evidence brought through by way of cross-examination. However, did not find consideration by the learned lower court. Now coming to the evidence of material witnesses, two fold arguments have been made. The first one that from the FIR itself, it is evident that Nawal Kishore Mahto, PW-2, Thakur Prasad Singh, PW-4 and Anil Kumar son of informant examined as PW-1 are the FIR named witnesses. They have supported the prosecution case in its entirety. Therefore, taking into account their status being FIR named witnesses as well as on account of having absence of contradiction, development, embellishment in their evidence is suggestive of the fact that they are truthful, creditworthy witnesses and on account thereof, their evidence should not have been brushed aside on superficial grounds. It has also been submitted that even discarding their evidence for a moment PW-5, Dev Narain Mahto (informant) had deposed and supported the prosecution case in toto without having any sort of exaggeration. Therefore, the prosecution case is found fully supported thereof.