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CRIMINAL APPEAL (SJ) No. 158 of 2000
Against the impugned judgment of conviction dated 28.03.2000 and order of sentence dated
31.03.2000 respectively passed in S.T. No. 230 of 1992 by Shri Prabodh Ranjan Das,
3rd , Additional Sessions Judge, Deoghar..
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Kanchan Mahato .... .... Appellant
Versus
1. The State of Bihar (Now Jharkhand)
2. Ramu Mahto .... .... Respondents
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For the Appellant : Mr. Aparesh Kumar Singh, Advocate.
For the Respondent (State) : Mr. I. N. Gupta, A.P.P.
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PRESENT
THE HON'BLE MR JUSTICE PRADEEP KUMAR
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By Court: Heard the learned counsel for the appellant and the learned counsel for the
state.
2. The instant appeal is directed against the judgment of conviction dated
28.03.2000 and order of sentence dated 31.03.2000 respectively passed in
S.T. No. 230 of 1992 by Prabodh Ranjan Das, 3rd , Additional Sessions Judge,
Deoghar, by which judgment he found the appellant guilty under Section 326 of
the I.P.C. and sentenced him to undergo R.I for seven years and also a fine of Rs.
1000/-, in default of making payment of fine, he shall suffer two month simple
imprisonment, he also found guilty under Section 448 of the I. P. C. and
sentenced him to undergo R.I. for one year and further found guilty under Section
27 of the Arms Act and sentenced him to undergo R.I. for five years and also a
fine of Rs. 1000/-, in default of making payment of fine, he shall suffer for two
months, all the sentences have been directed to run concurrently..
3. It is submitted by learned counsel for the appellant that only the injured
P.W.9, Geeta Devi and the informant P.W.6 Ramu Mahto supported the
prosecution case. The firing was done by this accused causing injury on the leg of
the victim Geeta Devi, but in the instant case neither the material exhibit – bullet
recovered from leg was produced nor the I.O. was examined and admittedly Saya
and Sari which was ablaze in the firearm neither seized nor produced in the
Court. In that view of the matter, the prosecution case is doubtful and the learned
trial Court has wrongly convicted the appellant.
4. On the other hand learned counsel for the state has opposed the prayer and
submitted that the prosecution evidences have fully proved the case beyond all
reasonable doubts and hence the conviction of the appellant does not require any
interference by this court.
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4. After hearing both the parties and going through the records, I find that the
prosecution case was started on the basis of fardbayan recorded on 24.07.1992 at
10.30 P.M., wherein the informant P.W. 6, Ramu Mahto stated that on
24.07.1992 at about 7.30P.M., petitioner-accused Kanchan Mahto, Bhim Mahto,
Bharat Mahto and Balram Mahto entered his house. The house was opened and
his wife was sitting inside the house near the door of a room situated at southern
side of the house. He was sitting inside the room and his son Pintu, who was
about six years, was studying there. Kanchan Mahto was carrying a pistol in his
hand and rest accused persons were carrying lathis. They trespassed inside the
house and Kanchan Mahto asked about the informant from his wife in filthy
languages and told her that today your husband will be murdered by firearm.
When accused persons could not see the informant, Kanchan Mahto told that
your husband is not present here then you will be killed by me and he fired from
pistol upon his wife with intention to commit her murder. Thereafter, he fired
upon her causing injury on the right knee. Thereafter, the accused persons fled
away towards north of the house then he made hulla whereupon, other witness
namely Chatur Khano and Bhikho Khano came from Mathurapur Station and he
told about the occurrence to them. It is also alleged that the accused were
annoyed because the informant was a witness in a murder case, which is pending
in the Court.
5. On the basis of the said fardbeyan, police registered a case under Sections
448, 307/34 of the Indian Penal Code and 27 of the Arms Act against the
accused persons and after investigation, police submitted charge-sheet in the case
against four accused persons under the aforesaid Sections. Since, the case was
exclusively triable by the court of Sessions, after taking cognizance learned Chief
Judicial Magistrate committed the case to the court of Sessions and subsequently,
the case was tried by learned 3rd Additional Sessions Judge, Deoghar, who found
the appellant guilty under Sections 448, 326 of the Indian Penal Code and 27 of
the Arms Act and sentenced him as aforesaid and acquitted other accused
persons.
7. It appears that in the course of the trial, the prosecution has examined as
many as ten witnesses.
P.W.1, Mahadeo Modi has turned hostile.
P.W.2, Nepal Prasad Verma is hearsay witness.
P.W.3, Suchit Prasad Yadav is hearsay witness.
P.W.4, Prem Kumar Mahato
P.W.5, Subhash Prasad Burnwal is hearsay witness.
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P.W.6, Ramu Mahto, the informant of the case.
P.W.7, Ram Sharan yadav has proved the fardbeyan.
P.W.8, Chatur Rawani is hearsay witness.
P.W.9, Geeta Devi, victim lady and wife of the informant.
P.W.10, Dr. P. Chandra.
P.W.2, Nepal Prasad Verma, P.W.3, Suchit Prasad Yadav, P.W.5, Subhash
Prasad Burnwal and P.W.8, Chatur Rawani are hearsay witness and they had
come after the occurrence and stated that they had seen injured, wife of the
informant, Ramu Mahto, who had injury on her right leg.
P.W. 6 Ramu Mahto and P.W. 9 Geeta Devi two witnesses in the place of
occurrence, who identified all the accused. Investigating Officer of the case has
not been examined and the F.I.R. has been proved by formal witness, P.W.7,
Ram SharanYadav. Dr. S. K. Bajpayee, who examined the injured, has died and
as such he has not been examined.
P.W.9, Geeta Devi, victim lady and wife of the informant, stated in the
Court that on the date of occurrence about at 7.30 P.M. in the evening she was
sitting in her house, a Dibri was burning. When the accused persons namely
Kanchan Mahto along with Bhim Mahto, Bharat Mahto and Balram Mahto
entered her house, Kanchan Mahto abused her and asked her that where is your
husband and further said that you are fighting case. When she did not disclose the
whereabouts of her husband, Kanchan Mahato fired from his pistol upon her, due
to which she sustained injury on her right knee (she shown the mark of operation
on her right knee). When accused persons fled away, she made hulla thereafter,
witnesses came from Midnapur Station then she told about the occurrence to
them. She also said that treatment was done in the Sadar Hospital, Deoghar and
in course of the treatment the bullet was operated out from her knee. She
identified the accused in the Court. In paragraph-7 of cross- examination, she
stated that where she was sitting there is no door or chokat in the house. Dibri
was on the floor and her leg was covered by saya and sari. In paragraph-8, she
stated that Kanchan Mahato asked about her husband then she told that her
husband is not present in the house. Kanchan Mahato was standing at a distance
of about 2 to 3 cubics and from there he fired from his pistol upon her, due to
which she sustained injury on her right knee and hole was caused in saya and sari
and that a part of sari was burnt. She also told that her husband entered inside the
house hearing the sound of accused persons. She denied that her husband was
practicing to fire from pistol and during the course of that she received injury and
wrongly implicated the accused persons due to enmity.
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P.W. 6, Ramu Mahto, informant, stated in the Court that on 24.07.1992 at
about 7.30P.M., he was in the house and his wife was sitting in the varandah .
Kanchan Mahto, Bhim Mahto, Bharat Mahto and Balram Mahto entered his
house, the house was opened. Kanchan Mahto abused his wife and asked her
where is your husband and told her that today your husband will be murdered by
firearm. He further asked about the informant from his wife in filthy languages
that where is your husband if you will not tell about him then I will kill you by
firearm thereafter, he fired from pistol upon his wife with intention to commit
murder, caused injury on her right knee. After the firing he and his son made
hulla whereupon they fled away. Where firing was done, only four houses are
there and one of the house is of informant P.W.4. and other two houses belong
to the accused persons. On their hulla, some persons and home guard personnel
arrived on the place of occurrence. They saw his wife with injured condition.
Thereafter, he and his wife told about the occurrence to them. He also stated that
his brother Kamdeo Mahato murder three years back by the accused persons due
to land dispute. After the occurrence, they went ‘fadhi’ where homeguard
directed to go to the police station then he and his wife went to the police station
jashidih and his wife sent to the hospital and a case was lodged. He further stated
that the cartridge was extracted by Dr. P. Chandra. In paragraph-6 in his cross-
examination he stated that his wife was sitting near the door of east room, there
was no chokath and Kiwadhi and he was inside the room and his son pintu,who
was six year old, was studing there. The distance between the varandah and door
of the east room is almost 3 hands. He further stated that when he saw the
accused to trespass inside the house he entered in the room. Dibri was burning in
varandah. In paragraph-9 he stated that he shown the saya & sari to the
Investigating Officer, but the same were not seized by the Investigating Officer.
7. Thus, it appears from the evidence of two witnesses, it has been proved
that the firing was done due to which P.W.9 Geeta Devi received injury on her
right leg, but it is difficult to come to a conclusive finding that the firing was
done by Kanchan Mahato which improbably caused injury to the appellant.
Learned counsel for the appellant submitted that it is not probable that while the
accused persons came to commit the informant’s murder and he actually fired
upon his wife and her husband was present just three hands inside the room and
he will not come out and try to save her. He further stated that it is also not
probable that the accused-appellant along with three others entered inside the
house will only enquire from his wife. There was no door in the other room and
lantern was burning and it is highly improbable that they will not enter the room
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and search for the informant in that room. More so, distance was only three
hands. It is also not probable that when the lantern was burning in a small room
and there is no door in the room, the accused could not have seen the informant
present in the room. He has also stated that due to old enmity, which is apparent
from the F.I.R. and evidence also, that there is a chance that the injured P.W.9
Geeta Devi received injury somewhere else for whom they have falsely
implicated the appellant. It is also important to note that although, the injured
P.W.9 Geeta Devi has admitted that due to firearm there was hole in Saya and
Sari and Sari was burnt, but neither Sari nor Saya was produced in the Court.
P.W.9 also stated that the cartridge was extracted by Dr. P. Chandra, but the
same was neither given to the police nor produced in the Court. The accused were
arrested from his house after two days, but no pistol was found in his possession
or in his house nor the same has been produced in the Court.
In that view of the matter, seeing the improbability and absence of the
material evidences, it is difficult to come to a conclusive finding that the firearm
was done by the appellant accused Kanchan Mahato. In that view of the matter,
he is being given benefit of doubt and acquitted from the charges.
9. Accordingly, this appeal is allowed and order of conviction dated
28.03.2000 and sentence dated 31.03.2000 respectively passed in S.T. No. 230 of
1992 by Sri Prabodh Ranjan Das, 3rd, Additional Sessions Judge, Deoghar is set
aside. Since, the appellant is on bail, he is released from the bondage of bail.
[Pradeep Kumar, J]
Jharkhand High Court, Ranchi
9th February, 2010
Kamlesh/NAFR