Jharkhand High Court
Bharat Mahto & Ors. vs State Of Jharkhand on 29 April, 2016
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
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Cr. Appeal (S.J) No. 798 of 2002
[Against the judgment of conviction and order of sentence dated
09.11.2002delivered by Sri R.K. Srivastava Additional Sessions Judge, F.T.C.3rd Bokaro in S.T. No. 609 of 1993]
1. Bharat Mahato
2. Hukumlal Mahato
3. Gulab Chand Mahato, S/o Hukumlal Mahato
4. Rajendra Mahato, S/o Bharat Mahato, All R/o VillageBhuia Dwarika, P.S.Chas(M), Dist.Bokaro ... ... Appellants Versus The State of Jharkhand ... ... Respondent PRESENT HON'BLE MR. JUSTICE ANANT BIJAY SINGH For the Appellants : Mr. A.K. Sahani, Advocate For the State : Mr. Vijay Kumar Gupta, A.P.P CAV on 18.04.2016 Pronounced on 29/04/2016 This appeal has been preferred by the appellants, namely, Bharat Mahato, Hukumlal Mahato, Gulab Chand Mahato and Rajendra Mahato, they stood convicted under Sections 307 I.P.C and were ordered to go rigorous imprisonment for five years vide judgment dated 09.11.2002 passed in S. T. Case No. 609 of 1993 by Sri R.K. Srivastava, learned Additional Sessions Judge, F.T.C.3rd, Bokaro.
2. The case of the prosecution, as has been recorded in the fardbeyan of Hublal Rajwar by S.I., R.B. Mahto of Chas (M) Police station on 28.09.1988 at 10:45 Hrs. in Referal Hospital, Chas alleging that in the morning the cousin of the informant, Bhola Rajwar (P.W.4) along with his nephew had gone to field in order to harvest Sinduwar. In the meanwhile, Bharat Mahto, 2 Hukum Lal Mahto, Gulab Chand Mahto and Rajendra Mahto came and asked why he is harvesting Sinduwar, thereafter hot exchange of words took place. It is alleged that Bharat Mahto was armed with Farsa and Rajendra Mahto was armed with Chota Rangeela. Gulab Chand Mahto assaulted Bhola Rajwar with farsa on the head, consequent thereupon he fell on the ground thereafter, Gulab Chand Mahto and Rajendra Mahto also assaulted with Chota Rangeela on the head of Bhola Rajwar, who received injury. In the meanwhile the informant who was nearby field came there whereupon the accused persons fled away.
3. On the basis of these allegations Chas(M) P.S. Case No. 68 of 1988 dated 28.09.1988 was instituted under Sections 323, 324, 307/34 IPC. The police after investigation submitted charge sheet and thereafter charges were framed under Section 307/34 of the I.P.C on 14.03.2000 thereafter, trial proceeded and during course of trial, the prosecution has examined six witnesses namely, P.W.1 Keshav Chandra Rajwar, who is not an eye witness after occurrence he reached at the place of occurrence. P.W.2 Hemant Lal Rajwar, son of the injured Bhola Rajwar, who is also not an eye witness . P.W.3 Naushad Ansari who is not eye witness and after occurrence he reached at the place of occurrence. P.W.4, Bhola Rajwar, who was injured witness. P.W.5, Haradhan Rajwar, who was declared hostile and P.W.6, Ali Ahmed Ansari who was advocate clerk, has proved the injury report issued by Dr. M. Prasad, Deputy Superintendent, Referal Hospital, Chas, which is 3 marked as Ext.3 (with objection). Ext.1 is the written report, Ext.2 is the signature of Naushad Ansari on affidavit dated 10.10.1988, Ext.2/A is the signature of Paltu Ram Mahto on affidavit dated 10.10.1988, Ext.3 is the medical report of Hemant Lal Rajwar, Ext.3/A is the medical report of Bhola Rajwar, Ext. 3/B is the medical report of Hublal Rajwar (with mark an objection by defence) and Ext.4 is the formal F.I.R.
4. Learned counsel for the appellants while assailing the impugned judgment submitted that neither the Investigating Officer has been examined nor the fardbeyan has been proved by the competent witness. Further the injury report has been proved by P.W.6, Ali Ahmed Ansari, who is an advocate clerk, Ext.3/B which is marked with objection. It is submitted that in absence of nonexamination of Investigating Officer, the injury report cannot said to be proved by prosecution. Hence the prosecution has failed to prove its case beyond reasonable doubt, therefore the appellant cannot be held guilty under Section 307 of the I.P.C and judgment and order deserves to be set aside.
5. Learned counsel for the State on the other hand submitted that P.W.4 Bhola Rajwar, who is an injured witness, named these appellants in para 1 and stated that the appellants have assaulted him and he received injury. These facts have been supported by P.W.2, Hemant Lal Rajwar who soon after reached the place of occurrence. It is further submitted that this vital aspect has been taken into consideration by the Trial Court. 4
6. The evidence of Investigating Officer could not be produced and the injury report has been proved by the P.W.6 formal witness which is marked with objection.
7. The question to decide in instant appeal, in absence of nonexamination of Investigating Officer not proving the injury report the conviction under Section 307 I.P.C can be sustained.
8. During course of arguments, learned counsel for the appellants has submitted that nonexamination of Investigating Officer has caused serious prejudice as the doctor who issued injury report has not been examined. It was duty of the prosecution to prove the case beyond reasonable doubt for making out the case under Section 307 of the Indian Penal Code and prosecution has failed to prove injury report for the offence under Section 307 of the Indian Penal Code. Further Investigating Officer has not been examined and the manner of occurrence and the place of occurrence cannot be fixed. Only interested witnesses have been examined who have admitted that there is land dispute between the parties.
9. Learned counsel for the appellants has submitted that the learned Trial Court has wrongly relied on the judgment of the Hon'ble Supreme Court in the case of "Punjab Singh Vs State of Haryana" reported in A.I.R. 1984 SC 1233, wherein the Hon'ble Supreme Court considered the provisions under Section 45 and 60 of the Evidence Act. The Hon'ble Supreme Court has held as under: 5 "Evidence Act, 1872Sections 45 and 60 Direct evidence visavis expert evidenceDirect evidence if satisfactory and reliable should be preferred to expert evidence, more so, where the expert evidence only shows two alternative possibilities but not any inconsistency."
10. In instant appeal as in absence of nonexamination of Investigating Officer serious prejudice has been caused as the manner of occurrence and the place of occurrence cannot be fixed.
11. Learned counsel for the appellants relying on the judgment of Hon'ble Supreme Court in the case of "Lahu Kamlakar Patil and Another Versus State of Maharashtra"
reported in 2013 (6) SCC 417: E. "Criminal TrialExaminationNonexamination/Failure to examine witnessNonexamination of investigating officer (IO)If fatalWhen such examination of IO essential Determination ofReiterated, nonexamination of IO is not fatal to prosecution case, especially, when no prejudice is likely to be suffered by accusedHowever, reiterated, there are certain circumstances where examination of IO becomes vitalIn instant case of murder, informant admitted his signature on FIR but also stated that it was taken on a blank paper while he was drunkSame could have been clarified by IO, but for some reason IO was not examined by prosecutionNeither trial court nor High Court delved into issue of nonexamination of IOOn a perusal of entire material brought on record, it is clear that no explanation was offered for above statement of informantFurther, panch witness had turned hostile and some of the evidence adduced in court did not find place in statement recorded under S. 161 Cr.P.CHence, held, present case is one where examination of IO was vital and his nonexamination creates a material lacuna in case of prosecutionConviction reversed, on this and other groundsCriminal Procedure Code, 1973Ss. 154 and 161 Penal Code, 1860, Ss. 302, 147, 148, 149 and 452"
submitted that the learned trial Court has not considered the fact.
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12. In view of the aforesaid law laid down by the Hon'ble Supreme Court, the order of conviction passed by the learned Trial Court cannot be sustained. Further it was submitted that in this case injury report which was essential for the prosecution to prove injury report of the injured person that has not been done by the competent witness, rather it has been proved by the P.W.6 Ali Ahmed Ansari who was advocate clerk which is marked as Ext. 3 and 3/A with objection. The admissibility of the injury report, a question which has not been considered by the learned Trial Court while passing the impugned judgment.
13. Heard the counsel for the appellants and counsel for the StateA.P.P.
14. Learned A.P.P frankly conceded this position.
15. Admittedly in this case Mr. R.B. Mahto, Investigating Officer of this case has not been examined. In the light of law laid down by the Hon'ble Supreme Court serious prejudice caused to the case of the prosecution. Further prosecution has not taken any step for getting injury report of the injured exhibited by the competent witness and only P.W.6 who is an advocate clerk (formal witness) proved the injury report which has been marked as exhibit 3 & 3/A. It is not admissible in the eye of law that in absence of injury report only evidence for making out a case is of the prosecution witness which has not corroborated the substance. Even though learned Trial Court has relied on the judgment in the case of "Punjab Singh Vs. State of 7 Haryana" (supra) holding that medical evidence cannot brush out direct evidence when it is found satisfactory and reliable, is not applicable in this fact of the case. No step has been taken for presence of Dr. M. Prasad, Medical Officer, Referal Hospital, Chas who is chargesheeted witness, rather injury report has been proved by formal witnessAli Ahmed Ansari, that exhibit is marked with objection. Taking all these facts, I am of the considered opinion that prosecution has failed to prove this case beyond all reasonable doubt under Section 307 of the I.P.C.
16. Accordingly, judgment and order dated 09.11.2002 is hereby set aside and the instant appeal stands allowed. The appellants are discharged of their bail bond. Let a copy of the judgment is sent to the trial Court.
(Anant Bijay Singh, J) High Court of Jharkhand, Ranchi Dated 29/04/2016 Satayarthi/Satayendra/NAFR