JUDGMENT
1. Both the appeals arising out of the same impugned judgment have been heard together and are being disposed of by this common judgment. All the four appellants in both the appeals stand convicted under Sections 302/34 and 307/34 of the Indian Penal Code and they have been sentenced for life under Section 302/34 of the Indian Penal Code and RI for five years under Section 307/34 of the Indian Penal Code, the sentence to run concurrently.
2. Brief facts leading to these appeals are that in the night of 13.11.1992 the informant Bhawani Prasad Gope along with deceased Nagen Chandra Gope heard hulla of paddy being stolen at about 9 p.m. on which they ran towards the field of PW 4 Bhagath Ranjan Gope situated near the river. Further stated all of them saw the appellant Shasthi Mahato along with his three sons carrying paddy from the field. It is further alleged that the appellants were armed with Lathi, arrows and Tabla. According to the prosecution they started chasing the appellants and reached near the house of appellant Shasthi Mahato when appellant Sukhen Mahto shot the arrow on deceased Nagen resulting in injury on his chest. It is further asserted that appellant Janamjaay Mahato gave a blow with Tabla on the back of the head of Shripati Gope PW 3. In the meantime the villagers assembled who brought the deceased to his house and further caught hold of appellant Shasthi Mahato. The Nimdih police was informed in the next morning, which arrived at the village in the after noon of 14.11.1992 and recorded the statement of PW 2 Bhawani Prasad Gope. The police further registered Nimdih P.S. Case No. 61 of 1992 under Sections 302, 307; 324/34 of the Indian Penal Code against four persons. The inquest report was prepared and the dead body was sent for post-mortem. The police after investigation submitted the charge-sheet against all the appellants. The case was committed to the Court of sessions. The appellants pleaded not guilty and claimed false prosecution. However, the learned trial Court after examining the witnesses found and held all of them guilty under Sections 302/34 and 307/34 of the Indian Penal Code and sentenced them as mentioned above.
3. The appellants preferred two separate appeals on the grounds that the learned trial Court has sentenced them without going into the discrepancies in the prosecution version. It is further asserted that the learned trial Court has failed to appreciate the circumstances which did not support the prosecution case. It is further mentioned that only interested witnesses have supported the prosecution case while probable and independent witnesses have been tendered by the prosecution. It is further submitted that the genesis of the occurrence, theft of paddy has not been proved. The appellants in Cr. Appeal No. 26 of 1999 further asserted that the evidence on record does not prove that the appellants had common intention to cause death of Nagen Gope and intention to commit murder of Shripati Gope. Therefore, the conviction of the appellants deserves to be set aside. The learned Counsel for the appellants further pointed out that the appellants Shasthi Mahato, father of all other three appellants was assaulted on false pretext by the informant. It is also submitted that even in case Sukhen is found and held guilty for shooting arrows on the deceased, he may not be held guilty under Section 302/34 of the Indian Penal Code. Therefore, the conviction under Section 302/34 and under Section 307/34 of the IPC deserves to be set aside.
4. Learned APP opposed this contention.
5. We have given anxious consideration to the submissions made by the counsel for the appellants. The genesis of the occurrence is theft of paddy from the field of Bhagath Ranjan Gope PW 4. This witness has admitted in examination-in-chief that he saw the appellants carrying harvested paddy from his field on which he raised alarm. According to him villagers and PWs 2 and 3 started chasing the appellants who went towards their house. He further asserted that when the appellant reached near their house, they threw paddy bundle on the road and went inside the house from where appellant Sukhen shot an arrow resulting in injury on Nagen. According to him after that remaining three appellants fled away while appellant Shasthi Mahato could be held and kept confined by the villagers. He further admitted that the paddy field was situated at a distance of 1 k.m. from his house. However, he admitted in para 10 that he has not lodged any case of paddy theft and nor shown the paddy thrown by the appellants on the road to the police.
6. PW 2 the informant has admitted in cross-examination the P.O., house of Shasthi Mahto was situated at a distance of 150 yards from his house. He asserted that he saw the appellants and PW 3 at the P.O. According to his witness, the arrow was not shot till the appellants reached inside their house. He is admittedly related with PW 3. He claims villagers have arrived at the P.O. on their alarm, however, PWs 5, 6, 7 and 9 named by this witness have been tendered though they are closely related with the informant side. This witness has asserted vide para 15 that the paddy was seized by the police. PW 3 injured Shripati Gope admitted in cross- examination that the paddy field was situated at about 100 yards from their house. According to him when arrow was shot on the deceased appellant Shasthi was inside the house and other three out side the house. He admitted in para 9 that he was not assaulted inside the house and he remained along with dead body whole night in spite of injury on him. PW 8 Is a formal witness who has proved the seizure list prepared by the police as Exts. 2/3 and 2/4.
7. PW 10 Dr. A.K. Choudhary has conducted the post-mortem report on the dead body of Nagen and found a penetrating wound over right side of chest which caused the death. PW 11 is the 10 of this case, According to him, PO is situated in the front of the house of appellants but he did not say that any paddy was seized from the road. He admitted in cross-examination that he has not mentioned anything about the paddy theft in the case diary. From the facts available on the records it is apparent that there are only three witnesses, closely related with each other regarding the commission of theft of paddy and arrow shot by the appellant Sukhen on the deceased. The learned Counsel for the appellants has further submitted that the learned trial Court has assessed the age of appellant Sukhen and Janamjay Mahto 20 years and 18 years respectively in September 1998 while they were being examined under Section 313 of the Cr PC. The learned Counsel for the appellants pointed out that in such circumstances admittedly these two appellants Sukhen and Janamjay have not completed 16 years of their age in November 1992. It is also submitted that the prosecution witnesses have admitted that appellant Shasthi Mahato, father of all the other three appellants was assaulted by the informant side on alleged date of occurrence and further kept in confinement from where police has arrested him. Our attention was drawn towards the fact that in such circumstances, it may be possible that the appellant in retaliation to the assault made on their father may have shot arrow causing death of Nagen and in scuffle any injury might have been caused on PW 2. The learned Counsel further pointed out that even if shooting of arrow on deceased and assaulting Shripati with Tabla is accepted, the intention may not be to cause death. Therefore, there may not have common intention to cause death to Nagen and assault with intention to cause death of Shripati. In this context, our attention was drawn towards the nature of injury found on Shripati to be fake and insufficient in ordinary course of nature to cause death.
8. We found that the submissions have got force in it. The appellant Shasthi Gope is said to have been arrested and assaulted by the informant side after shooting the arrow. However the so called eye-witness of the occurrence PWs 5, 6, 7 and 9 did not support it in clear and specific words to the police. Non-seizure of the paddy from the road further creates doubt in the story of paddy theft. However, there are eye-witness that Nagen was struck with an arrow which was found imbedded in his body by PW 10 doctor conducting, post-mortem report. In such circumstances we find and hold that the arrow shot by appellant Sukhen has caused death of the deceased. We further find and hold that in such circumstances common intention with other appellants to cause death was not possible. So far the injury upon PW 3 is concerned, we find that it is not sufficient in ordinary course of nature to cause death. It is also found that appellant Sukhen has remained in custody from 1998, as he was not admitted to bail during the pendency of Cr. Appeal No. 26 of 1999.
9. Having considered the above mentioned facts and circumstances, we find that the prosecution in the present case has failed to prove the charges under Section 302/34 of the Indian Penal Code, as well as under Section 307/34 of the Indian Penal Code against the appellant in Cr. Appeal No. 336/1998 (R). Motilal Mahato and Shasthi Mahto. Accordingly they are found and hold not guilty and acquitted of the charges. They are directed to be released from the liabilities of their bail bonds. Accordingly the Cr. Appeal No. 336 of 1998 is allowed.
10. We further find that the appellant of Cr. Appeal No. 26 of 1999, Janamjay Mahato is found and held not guilty under Section 307/34 of the Indian Penal Code. However, he is liable to be punished under Section 324 of the Indian Penal Code, only. It is stated that he has remained in custody during the trial-for nearly one month and after conviction for nearly four months. In the circumstances of this case he is sentenced to period undergone under Section 324 of the Indian Penal Code. We further find and hold that the appellant Sukhen Mahato is guilty under Section 304 Part II of the Indian Penal Code. He has already remained in custody for more than eight years. In the circumstances of this case the appellant Sukhen is sentenced to serve RI for eight years. Since he has already remained in custody for the period mentioned above, he is directed to be released forthwith, if not required in any other case. The Cr. Appeal No. 26 of 1999 is allowed in part.