ISHWARI SAO Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE five appellants, convicted for the offence punishable under Sections 302/34 of the Indian Penal Code (hereinafter in short as 'IPC') and sentenced to undergo rigorous imprisonment for life by the judgment and order of conviction and sentence dated 10th April, 1992 passed by the learned 7th Additional Sessions Judge, Gaya in Sessions Trial No. 82 of 1990, have filed this appeal. It may be noticed here that appellant nos. 1. and 2 are brothers and appellant no. 5 is the son of appellant no. 1. Appellant no. 1 would be above 70 years of age. Appellant no. 4 would be above 82 years of age. They have been charged for committing murder of one Nathun Kewat.

(2.) THE prosecution case, as appearing from the fard -beyan, as lodged by Luchkun Kewat (PW 7) the son of the deceased that on 18.1.1987 at about 7.00 am his father Nathun Kewat (deceased) came to the well and found that the stone kept near the well was missing. He started shouting that all the villagers have become naxalites and did not even spare the stone kept at the well. Appellant Durga Sao who was working in a nearby agriculture field objected and started abusing Nathun Kewat and said that he is going home and would return to teach him a lesson. Thereafter, appellant Durga Sao went to his home, collected all the appellants who were variously armed with garansa, sword, spear, lathi, rifle and country made pistol. They came, surrounded Nathun Kewat and assaulted. They virtually cut his legs, assaulted on head and on body. The informant is the son of the deceased Nathun Kewat saw the incident but could not do anything to save his father as he was threatened by the appellants that if any one attempted to save the deceased, he would be shot. Finding Nathun Kewat dropped to the ground with extensive bleeding, the appellants are alleged to have left saying that he was dead. Upon this fard -beyan, recorded at Jehanabad Sadar Hospital where Nathun Kewat was brought for treatment and died immediately, a formal case was registered and investigation started. Inquest was prepared, post mortem report was obtained and after investigation chargesheet was submitted against the five appellants who pleaded not guilty and were tried and convicted. Hence the appeal.

(3.) IN order to establish the prosecution case, prosecution has examined in all ten witnesses. Learned counsel for the appellants first points out that the Investigating Officer has not been examined and there is no reason given why. He submits that it caused great prejudice to the defence. We are unable to accept his submission. What prejudice has been caused has not been pointed out. Nowhere has it been alleged that the witnesses had changed their stand which they had taken in course of investigation. No contradictions were sought to be established, nor the place of occurrence was in dispute, nor seriously the defence was challenging the nature of injuries and the cause of death. Thus, in our view, no prejudice was caused to the defence by non -examination of the Investigating officer much less enough to allow the appeal. We, therefore, reject this contention.