CRIMINAL APPEAL No.88 OF 1998 (S.J.) **** Against the judgment and order, dated 20th February, 1998, passed by Shri Uday Shanker, Additional District and Sessions Judge, V, Begusarai, in Session’s Case No. 26 of 1989 **** 1. MAHABIR MAHTON, son of late Nebi Mahton 2. RAM BAHADUR MAHTON, son of Mahabir Mahton Both residents of village Fafout, P.S. Khodawandpur, district Begusarai .. Appellants Versus STATE OF BIHAR .. Respondent **** For the appellants .. Mr. Pramod Manbansh, Adv. For the respondent .. Mr. Satyendra Prasad, A.P.P. **** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. Heard both the sides. 2. The present appeal has been filed on behalf of Mahabir Mahton as well as Ram Bahadur Mahton, but, during the pendency of the appeal Mahabir Mahton died and, therefore, by an order, dated 21.05.2009, his appeal stood abated. Both the appellants had been convicted for the 2 offence under Section 307 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years by a judgment, dated 20.02.1998, in Session’s Case No. 26 of 1989 by the Additional Sessions Judge, V, Begusarai. 3. The case of the prosecution is that on 25.07.1985, Rambhajan Das, P.W. 4, was assaulted by the two appellants with bhala saying that so long as he was alive they would not be allowed to take possession of the house. Mahabir Mahton is said to have caused injury on the left side of the neck, left arm and on the head whereas Rambahadur Mahton is said to have assaulted on the left arm and left side of the back due to which the informant became unconscious and was taken to the hospital, where after treatment he was discharged. After investigation the charge sheet was submitted for the offences under Sections 307, 325 and 323/34 of the Indian Penal Code and charge was framed under Sections 307, 323 and 324 of the Indian Penal Code. 4. The prosecution, to prove it’s case, examined six witnesses out of whom P.W. 4, Rambhajan Das, is the informant, whereas P.W. 1, Radhay Rai, is an eye witness who live opposite to the house of the informant. P.W. 2, Ram Udagar Paswan is also an eye witness and a neighbour of the informant. P.W. 3, Tarkeshwar Mahto is also an eye witness and a person of the same locality. P.Ws. 5 and 6, namely, Sitaram Sharma and Bishwanath Singh, are formal witnesses in nature having proved the first information report (exhibit 1) and the case diary (exhibit 2) respectively. It appears that the doctor despite summons did not appear to depose during trial. 3 5. The defence also examined four witnesses, namely, D.W. 1, Shyamal Kishore Prasad, who has proved a sale deed (exhibit ‘A’), D.W. 2, Jangbhadur Prasad, is a formal witness, who has proved exhibit A/1. D.W. 3, Sitaram Sharma, is also a formal witness who has proved some receipts Exhibits ‘B’ to ‘B/1’ whereas D.W. 4, Ramashish Mahto, is a material witness, who stated about the dispute over the piece of land since last 20-21 years between the parties. 6. It is the case of the appellants that in fact the occurrence took place on account of a dispute over a nala and, therefore, it is not a case under Section 307 of the Indian Penal Code even if grievous injuries were sustained by the informant. The further argument is that from the documents which have been marked as Exhibit ‘A’ through D.Ws. 1, 2 and 3 suggests that there was a bonafide land dispute between the parties and, hence, the entire version of the prosecution witnesses would have to be viewed from the perspective of enmity and should be scrutinized even from closely. 7. On going through the evidence of P.W. 1, Radhay Rai, it is apparent that he was not an eye witness and that he went to the place of occurrence only on hulla and even though the motive for the occurrence is that the accused had wanted to take possession of the house of the old lady, Sandhyawati Devi. In fact, it is the informant, who after her death resided in the same. This makes the prosecution case to some extent doubtful since a motive has been falsified by the prosecution witness himself. Similarly 4 even though P.Ws. 1, 2, 3 and 4 have orally supported the case of the prosecution about the assault upon both P.W. 4, Rambhajan Das, and Sandhyawati Devi, but, there is total absence of any medical corroboration about the same. In absence of any medical report to support the case of the prosecution it is definite to conclude that the present case was one in which the appellants could be rightly convicted for the offence punishable under Section 307 of the Indian Penal Code and, therefore, I am inclined to allow the appeal on this score alone. 8. In the result, the appeal is allowed and the judgment of conviction and sentence is set aside. (Anjana Prakash, J.) The Patna High Court The 27th October, 2009 N.A.F.R./S.A.