Criminal Appeal (S.J.) No. 81 of 1997. (Appeal against the Judgment and Order dated 14.3.1997 passed by the 3rd Additional Sessions Judge, West Champaran, Bettiah, in Sessions Trial No. 23 of 1991/G.R. No. 244 of 1989.) ------------ 1. HARI SHANKAR MAHTO, SON OF LATE DHAWTAL MAHTO 2. RAJ KISHORE MAHTO 3. DEEP NARAYAN MAHTO @ BHOLA MAHTO 4. JUGUL KISHORE MAHTO ALL SONS OF HARI SHANKER MAHTO 5. RAJA RAM MAHTO, SON OF LATE PADARATH MAHTO 6. LALJEE MAHTO, SON OF LATE JAYA SINGH MAHTO 7. RAMADHAR SAH, SON OF BIDESHI SAH ALL RESIDENT OF VILLAGE RAMPURWAS TOLA CHAPARIA, P.S. MAINATAND, DISTT. WEST CHAMPARAN ------- APPELLANTS. Versus THE STATE OF BIHAR ------- RESPONDENT. ---------- For the Appellants : Mr. K.M. Tripathi, Adv. Mr. S.K. Tiwari, Adv. Mr. A.K. Mishra, Adv. For the State : Mr. Choubey Jawahar, A.P.P. ---------- W I T H Criminal Appeal (S.J.) No. 104 of 1997 SURENDRA MAHTO, SON OF LATE JAMUNA MAHTO, RESIDENT OF VLLAGE RAM NAGARI, P.S. BASTHA, P.S. MAINATAND, DISTT. WEST CHAMPARAN ------ APPELLANT Versus THE STATE OF BIHAR ------- RESPONDENT. ---------- For the Appellant : Mr. Sumant Singh, Adv. For the State : Mr. J.K. Singh, A.P.P. ----------- P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellants have been convicted under Sections 436, 380, 323 and 147 of the Indian Penal Code and sentenced to rigorous Patna High Court CR. APP (SJ) No.81 of 1997 dt.22-07-2011 2 imprisonment for ten years, five years and three years and one month respectively by the 3rd Additional Sessions Judge, Bettiah, in Sessions Trial No. 23 of 1991/G.R. No. 244 of 1989 by a Judgment dated 14.3.1997. 2. The case of the prosecution according to PW-3 Daroga Mahto, is that on 27.2.1989 when he was returning home, all of a sudden all the Appellants surrounded them from all sides and variously assaulted him with Bhala, Farsa and Lathi as a result of which he was badly injured. The accused persons then entered the house of Ganga Kuer, PW-4, and committed theft of articles from her house and also set fire to the adjacent Palani. The reason for the occurrence that there was land dispute between the Informant and the accused persons and a civil dispute was pending between one Ganga Kuer and the accused persons. 3. The defence of the accused person that they have been falsely implicated on account of previous enmity and in fact, Daroga Mahto, PW-3, Informant had committed theft of paddy in the house of Hari Shankar Mahto on account of which he had been caught and badly beaten. 4. The prosecution to prove its case examined eight witnesses. PW-6 Balichand Prasad who was son of the Informant has stated that he went to the Police Station shortly before the occurrence. He further stated that PW-5 Ganga Kuer, wife of Indrasan Mahto and an eye witness to the occurrence has stated that the persons committed theft of articles from her house. PW-4 Sarita Devi, her daughter and wife of Indrasen Mahto also stated that theft had been committed in their house by the accused persons and the adjacent hut has been burnt. PW-2 is next eye witness who corroborated the evidence of the eye witnesses. PW-3 Daroga Mahto stated in his evidence that while he was returning home at about 8.10. P.M., the accused persons variously Armed, assaulted him. He also stated that the accused committed theft of articles from the house of Ganga Kuer and burnt the hut (Palani). Patna High Court CR. APP (SJ) No.81 of 1997 dt.22-07-2011 3 5. PW-7 Satendra Singh is the Investigating Officer who stated that he inspected the house of Ganga Kuer and found the hut (Palani) burnt and seized a number of half burnt articles. The prosecution has not produced the Doctor who examined the injured Informant. 6. In view of only the ocular evidence with regard to the assault on the Informant without any independent corroboration of the same, I am not inclined to sustain the conviction of Appellants under Section 323 of the Indian Penal Code. In the result, they are acquitted of the charge of Section 323 of the Indian Penal Code. 7. As for the charge of Section 436 of the Indian Penal Code, I find that there is no overt act mentioned as to which of the accused persons had committed the said act and in absence of the same, it could be unsafe to convict the Appellants on a general and vague allegation that the accused had committed theft and set fire to the ‘Palani’. For the said reason, the evidence of PW-4 and PW-5 is fit to be disbelieved and, therefore, all the Appellants are acquitted of the charge under Sections 436 and 380 of the Indian Penal Code. However, their conviction under Section 147 of the Indian Penal Code is maintained but the sentence is modified to the period already undergone by them during trial. 8. In the result, the Appeal is dismissed with the aforesaid modification in conviction and sentence. (Anjana Prakash, J.) Patna High Court, Patna Dated, the 22nd July, 2011. NAFR/S.ALI.