JUDGMENT
1. All the four appellants have preferred this appeal against the judgment dated 19th May, 2000 passed by Additional Sessions Judge-ll, Seraikella in Sessions Trial No. 342 of 1995 whereby and whereunder the appellant No 1 has been convicted under Section 323 I.P.C. and sentenced to undergo R.1. for six months and appellant No. 2 to 4 have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo R.1. for life each.
2. Brief facts leading to this appeal are that in the morning of 23.5.1995 the informant P.W. 1 was going along with deceased Nawdip Mahato to throw cow dung in his fields situated in Mauza Bankari P.S. Rajnagar, District East Singhbhum loaded on a bullock cart. As further stated when they reached near the house of the appellants, all of a sudden they arrived and started assaulting the informant and the deceased. According to the informant he was assaulted by appellant Lakho Mahto and Guli Mahato with Sabal and Lathi after which he fell down having bleeding injury. In the meantime appellant Shankar Mahto and Hema got upon the bullock cart and assaulted the deceased with Tangi and Balwa in their hands. After assaulting both of them the appellants fled away. The villagers arrived to bring them to their house. In the meantime Nawdip breathed his last. The reason behind this occurrence was that the daughter of appellant Guli Mahto was kept by the deceased as his wife for last one year without formal marriage resulting in this occurrence.
3. Raj Nagar police arrived at village Bankari same day at 8. A.M. and recorded the statement of the informant. It appears that in the fard beyan the informant was named as Sudeo Mahto son of Hari Ram Mahto. Police registered Rag Nagar P.S. Case No. 25 of 1995 and prepared inquest report of the dead body and sent the informant for his treatment, to finally submit charge sheet against the appellants under Section 302,307/34 of the Indian Penal Code. The appellants were put on trial for the charges to which they pleaded not guilty and claimed false prosecution. However the learned trial court after examining witnesses found and held all of them guilty under Section 323, 302/34 of the Indian Penal Code and sentenced accordingly. They were acquitted of the charges under Section 307/34 of the Indian Penal Code in absence of any medical evidence regarding injuries on the informant.
4. The present appeal has been preferred mainly on the grounds that the prosecution lacked supporting and corroborative evidence particularly in absence of any eyewitness of the occurrence. It is further asserted that the witnesses examined by the prosecution were highly interested and improbable. According to learned Counsel for the appellants when the prosecution case was not accepted by the learned trial court regarding assault on P.W. 1. his presence at the spot becomes doubtful. The learned Counsel further stressed that absence of any material exts seized by police like weapon of assault, blood stained soil and the I.O. makes the whole case doubtful. Therefore the appellants may be acquitted of the charges.
5. We have gone through the materials on record. The prosecution has examined altogether 10 witnesses out of which P.W. 2,4, and 8 have been tendered by the prosecution. P.W. 5 and P.W. 6 have asserted that when police came, they learnt about the incident. P.W. 5 has specifically stated that he heard about the incidence only. P.W. 6 has signed over the inquest report and seizure list and proved his signature as Ext.-1 series. In cross examination he admitted that when he arrived at the place of occurrence the inquest report was already prepared, P.W. 7 Dhaneshwar Mahto is another witness on the inquest report as well as the seizure list, the arrived at the place of occurrence after learning about the death of Nawdip and found the police already present. P.W. 10 is a formal witness who proved the writings on the fard beyan and the FIR as Ext.- 3 and 4. P.W. 9 is Dr. Bishwadhar Dayal who conducted the post mortem examination on dead body of Nawdip Mahto. According to him four incised wounds caused by heavy sharp cutting weapon resulted in death. The death of Nawdip Mahto was therefore proved beyond doubts caused by heavy sharp cutting weapon.
6. This leaves us with the statement of P.W. 1 and 3 only who are informant and his daughter. According to P.W. 1 the deceased was assaulted by Hema and Shankar with Tangi and others with Sabal and Lathi. However the doctor has not mentioned any injury caused by hard and blunt substance on the deceased. He further asserted the genesis of the occurrence as dispute regarding keeping the daughter of the appellant Guli Mahto and sister of other three appellants by him for last one year without marrying. Further this witness has asserted in examination in chief that he went to police station where his statement was recorded by the police. It contradicts his fard beyan which mentions that statement was recorded by the police at the village Bankari. He has admitted in cross examination vide para 2 that before this occurrence no dispute arose between the appellants and his family. He further admitted that the occurrence took place at about 1/ 2 miles from his house and he met none while going towards the field, He further admitted that the deceased was assaulted while he was sitting on the bullock cart by Hema and Shankar several times. According to him the deceased did not fall from the bullock cart and remain there even after assault. He has admitted that his family members arrived at the place of occurrence after the occurrence. He contradicts his own version by admitting that he sent mother of Nawdip and his daughter P.W. 3 to inform the police after which police arrived at the place of occurrence. According to him police took him on police jeep to police station and recorded his statement. P.W. 3 his daughter Menoka Mahatwain asserted that she loaded cow dung on bullock cart and thereafter she was standing on the road when this occurrence took place. She claimed to be eyewitness of the occurrence and supported her father in details. According to her version after the incident mother of deceased called many persons who brought them to their house. She admitted in cross examination that she arrived at the police station at 7.30 and reported the incident which was recorded by S.I. However she has not put her LTI on this recorded statement. She specifically contradicted her father that he has gone to police station. She has named many persons of village present at the time of the occurrence. However none of them have been examined by the prosecution. According to her version when she reached near the bullock cart, Nawdip was breathing but none of the villagers had arrived at the place of occurrence. She contradicts herself by saying that deceased was brought on cot but no person from village came there. If it is fact how Nawdip was brought to the house when informant himself was injured badly and only one female arrived at the place of occurrence. She could not name which of the villagers arrived at the place of occurrence or at the house to see Nawdip and her father.
7. The learned Counsel for the appellants accordingly submitted that the presence of P.W. 1 and 3 becomes doubtful in absence of any corroborative and supporting evidence on record. He further stressed that P.W. 1 has not been examined by any doctor nor any medical report was produced before the trial court to corroborate that he was assaulted at the time of occurrence. It is pointed out that in admitted facts that P.W. 3 was standing near her house when occurrence took place which according to P.W. 1 at about ½ miles from the house, her having seen the occurrence as eye witness is doubtful. It was pointed out that the P.O. has not been established. Further our attention is drawn towards the admission of P.W. 1 and 3 that no villagers were present when assault took place, neither any of the witness examined before the trial court have asserted that they saw the occurrence. As such, the prosecution story should not have been believed by the trial court
8. After going through the materials on record and the submissions made on behalf of the appellants, we find that prosecution case depends upon the evidence of P.W. 1 and 3 P.W. 3 who claim that she saw the occurrence from a distance of nearly 1/2 miles which is not probable. She has further contradicted her father P.W 1 regarding the information sent to police and presence of any of villagers in bringing the deceased to the house. P.W 1 has further contradicted his fard beyan by admitting that it was recorded by the police at police station His version become further doubtful with the admitted fact that no injury has been found on him for alleged occurrence
9. In such view of the facts, we find and hold that the prosecution in the present case has failed to prove beyond doubts the assault took place as alleged resulting in death of Nawdip Mahto.
10. In the result, we find that the present appeal has got merit in it and deserves to be allowed. Accordingly, this appeal is allowed. The judgment of conviction passed by the trial court against the appellants is hereby set aside and all the appellants acquitted of the charges levelled against them. Appellant No 1 and 4 are on bail; they are directed to be released from the liabilities of their bail bonds Appellant no 2 and 3 are in jail custody, they are directed to be set free forthwith, if not wanted in any other case
D.K. Sinha, J.
11. I agree.