Criminal Appeal (SJ) No.135 of 1999 ~~~~~~ Against the judgment of conviction and order of sentence dated 02.06.1999 respectively passed by Sri Bansh Lochan Singh, learned Additional Sessions Judge -2nd, Nalanda, Biharsharif in S. T. No. 120 of 1991. ~~~~~~ 1. Anil Mahto. 2. Sunil Mahto, Both sons of Ayodhya Mahto. 3. Ram Chandra Mahto. 4. Rajendra Mahto @ Rajo Mahto, Both sons of Gokul Mahto. 5. Uday Mahto, Son of Sita Mahto. 6. Surendra Mahto, Son of Jodhi Mahto. 7. Ram Ekbal Mahto, Son of Nand Keshwar Mahto. 8. Jwala Mahto, Son of Bishundeo Mahto. 9. Chhabindra Mahto, Son of Jodhi Mahto. 10. Lala Mahto, Son of Budhan Mahto. 11. Krishna Mahto, Son of Bishundeo Mahto. All residents of village – Dhobi Bigha, P. S. – Asthawan, District – Nalanda. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellants : Sharvshree Rajendra Prasad, Sr. Advocate. Pramod Kumar, Advocate. Ritesh Kumar, Advocate. Bimal Kumar Datta, Advocate. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. For the Informant : Mr. Rabindra Prasad Singh, Advocate. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted under Sections 325/34 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years for the offence under Section 325/34 of the Indian Penal Code and two years for the offence under Section 148 of the Indian Penal Code. However, ordered that both the sentences shall run concurrently. 3. The prosecution case as alleged in the fardbeyan of the informant is that all the appellants along with one Ravindra Mahto surrounded the informant while he 2 was returning back from the side of Jirain Bridge after performing his call of nature at about 5:00 P.M. They started assaulting the informant by which he got fracture on his wrist, knee and on the head. On hulla the villagers collected but they terrorized by resorting to firing and the informant became unconscious. 4. On the fardbeyan the First Information Report was lodged and after investigation the charge-sheet was submitted. During the trial eight witnesses were examined. P. W. 1 to 6 are the material witnesses. P. W. 7 is the doctor. P. W. 8 is the formal witness who was formally proved. The charge-sheet was submitted under Section 307 of the Indian Penal Code and other allied Sections of the Indian Penal Code and the cognizance taken accordingly and after commitment the charge was framed under Sections 148, 307/34 of the Indian Penal Code and 27 of the Arms Act against the appellants. 5. The trial court after taking into consideration the evidence of the witnesses acquitted the appellants for the offence under Section 307/34 of the Indian Penal Code and 27 of the Arms Act. However, the trial court convicted the appellants under Section 325/34 and 148 of the Indian Penal Code. 6. Learned counsel for the appellants, however, made two fold submissions. Learned counsel for the appellants submitted that the witnesses are inimical and interested and the allegations are omnibus. The I.O. has not been examined in the case to record contradiction hence has caused prejudice. It has further been contended that the offence is of the year 1990 and the evidence of the doctor that the injuries are grievous on the basis of X-ray report and X-ray plate but X-ray plate and report has not been duly proved. 7. Learned counsel for the informant, however, submits that the witnesses have come to support the prosecution case that all the accused persons surrounded the informant Baldeo Mahto in the field of Prasadi Mahto and assaulted indiscriminately causing injury to the informant. However, the attention has been 3 drawn of all the eight persons including the informant who is P. W. 6. However, none of the witnesses have asserted that on what part of the body by what weapon and the witnesses have deposed in general and omnibus manner that all assaulted. The attention though has drawn that they have not stated that fact before the court. But the attention has not been made what they really stated before the police. 8. However, having regard to the fact that the allegations are omnibus and whatever stated and the attention regarding the fact has been drawn to the witnesses regarding their statement before the police and stated in the court which they have denied but the I.O. has not been examined in this case and hence it can well be inferred that some presumption has been caused to the accused for non-examination of the I.O. 9. P. W. 6 is the informant. However, though in his fardbeyan has stated is general and omnibus allegation that all the accused persons surrounded assaulted him and causing injury on him. However, in his evidence in examination-in-chief has stated specifically that Anil and Jwala armed with Bhala, Uday armed with Farsa, Krishna Mahto armed with country made pistol and rest armed with lathi. However, he has also stated that he got injury on the leg by which he got fracture but has not stated specifically who assaulted him on what part of the body. However, he has stated that except the fardbeyan he has not made any statement before the police. However, the attention has been drawn with regard to his statement and the fardbeyan in which he denied to have stated in the fardbeyan that he has only stated about the assault by lathi, Bhala and Farsa and has not stated Anil and Jwala armed with Bhala, Uday armed with Farsa, Krishna Mahto armed with country made pistol and rest armed with lathi and hence attention has been drawn of this witness with the statement in fardbeyan for which no valuable explanation has been given. 10. However, the witnesses have though supported the prosecution case that all 4 the accused persons came, surrounded the informant and assaulted while he was returning from the call of nature but there is no specific assertion about the specific act who assaulted on what part of the body. However, the doctor has proved the injury and found nine injuries on the person of the victim. However, the doctor found the injury nos. 3 and 8 to be grievous in nature and this opinion has been based on the X-ray report. However, the X-ray report and X-ray plate has not been duly proved and the evidence of P. W. 7 is based from the report of the radiologist. But the opinion is based on the X-ray report has not been duly proved and hence caste a doubt to prove that the injury was grievous. Hence, the conviction under Section 325/34 of the Indian Penal Code becomes doubtful. Hence, having regard to the facts and circumstances that the allegation that all the accused persons surrounded and assaulted who were 12 in numbers but none of the witnesses have stated about overt act who assaulted him. Hence, the facts and circumstances have not been specifically stated but the injury report having been proved and established the injury though the grievous injury having not been established. Hence, the conviction under Section 325/34 of the Indian Penal Code having not established and hence can be substituted for the offence under Section 323/34 of the Indian Penal Code. 11. However, having regard to the fact that the occurrence is the year 1990 and the appellants have remained in jail for about a month at the time of investigation and hence the ends of justice shall meet by sentencing the appellants for the period already undergone and hence the appeal is allowed in part. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 22nd November, 2011. N.A.F.R./Kundan.