Jwala Prasad Mandal & Ors. vs The State Of Bihar

Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State.

This appeal has been preferred against the judgment and order dated 07.05.2018 passed by the learned Additional District and Sessions Judge (F.T.C.-II), Katihar in Sessions Trial No. 78 of 2003 arising out of Falka P.S. Case No. 106 of 2001, whereby and whereunder these appellants have been convicted for the offence punishable under Section 323 of the Indian Penal Code and have been released on probation under Sections 3 and 4 of the Probation of Offenders Act for a period of one year on furnishing a probation bond of Rs.5,000/-with two sureties of like amount each, with a direction to maintain peace and good behaviour during the said period. The appellants were further directed to appear and undergo substantive sentence in case of violation of the terms and conditions of the bond.

The prosecution case, in brief, is that the informant, namely Ramakant Singh, alleged that on 26.09.2001, at about 7:00 P.M., when he returned home, he found that accused Pradip Mandal (Appellant No. 3) had removed pegs from the measured land and placed fuel wood thereon. On objection being raised, Pradip Mandal (Appellant No. 3) and co-accused Chaturanand Mandal abused and pushed him, whereafter all these accused persons assaulted him with lathis and bhala. It is further alleged that the informant's wife, namely Yashodhara Devi, was also assaulted and her gold chain was snatched. The injured persons were thereafter taken for medical treatment.

In order to establish the charges, the prosecution examined ten witnesses. P.W.-1, namely Gopal Krishna; P.W.-2, namely Binod Mandal; P.W.-3, namely Chandan Kumar; P.W.-4, namely Mirtunjay Kumar Mishra; P.W.-5, namely Anil Mandal and P.W.-7, namely Kailash Jha, were declared hostile. P.W.-6, namely Yashodhara Devi, wife of the informant and an injured witness, supported the prosecution case and attributed assault to the accused persons. P.W.-8, namely Vijay Sah, claimed to be an eyewitness and supported the occurrence. P.W.-9, namely Ramakant Singh, is the informant as well as an injured witness and attributed assault to the accused persons. P.W.-10, namely Sukhai Mandal, also claimed to be an eyewitness, though his testimony contains discrepancies regarding the identity and description of the assailants. Neither the Investigating Officer nor the doctor was examined by the prosecution.

On the other hand, the defence has not examined any oral or documentary evidence. The statements of the accused persons under Section 313 Cr.P.C. were recorded, wherein they denied the allegations.

After hearing the parties and upon consideration of the evidence available on record, the learned Trial Court convicted the appellants and extended to them the benefit of probation under the Probation of Offenders Act in the manner indicated hereinabove.

Learned counsel for the appellants has assailed the judgment of conviction on several grounds. It is submitted that several prosecution witnesses have not supported the prosecution case and have been declared hostile. It is further submitted that the Investigating Officer has not been examined, thereby causing prejudice to the defence as the appellants were deprived of an opportunity to confront him with the material omissions, contradictions and other aspects arising out of the investigation. It is also submitted that the doctor has not been examined and the injury report has neither been exhibited nor brought on record. Thus, the allegation of assault remains unsupported by duly proved medical evidence. Learned counsel further submits that the evidence of the prosecution witnesses suffers from material discrepancies regarding the identity and participation of the assailants and, therefore, the appellants are entitled to the benefit of doubt.

Per contra, learned Additional Public Prosecutor has supported the judgment of conviction and submitted that the evidence of the injured witnesses and the eyewitnesses sufficiently establishes the occurrence and the participation of the appellants and, thus, no interference is warranted.

Having heard the parties and upon consideration of the material on record, this Court finds that the prosecution evidence requires careful scrutiny. A number of prosecution witnesses have not supported the occurrence and were declared hostile. The principal evidence is that of P.W.-6 Yashodhara Devi, P.W.-8 Vijay Sah and P.W.-9 Ramakant Singh. However, P.W.-10 Sukhai Mandal, who also claims to be an eyewitness, has given evidence containing discrepancies regarding the names and description of the assailants. More importantly, neither the Investigating Officer nor the doctor has been examined. The non-examination of the Investigating Officer has deprived the defence of an opportunity to confront him with the material omissions, contradictions and other aspects of the investigation. Further, in the absence of examination of the doctor and exhibition of the injury report, there is no duly proved medical evidence on record to corroborate the allegations of assault.

The testimony of an injured witness is entitled to due weight; however, it is required to be assessed along with the other evidence available on record. In the present case, the evidence of several witnesses does not support the prosecution case, while the evidence of the eyewitnesses contains discrepancies regarding the identity and participation of the assailants. The absence of the Investigating Officer and the doctor further deprives the Court of material corroborative evidence.

The cumulative effect of these circumstances creates a reasonable doubt regarding the prosecution case and, in particular, regarding the participation of the appellants in the alleged assault. Thus, in view of the facts and circumstances of the case, as discussed above, it is evident that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt and, therefore, the appellants are entitled to the benefit of doubt.

Accordingly, the judgment and order dated 07.05.2018 passed by the learned Additional District and Sessions Judge (F.T.C.-II), Katihar in Sessions Trial No. 78 of 2003 arising out of Falka P.S. Case No. 106 of 2001 is hereby set aside with respect to these appellants only.

The appellants, above named, are acquitted of the charge under Section 323 of the Indian Penal Code by extending to them the benefit of doubt. The probation bonds furnished by the appellants stand discharged.

Accordingly, this appeal stands allowed.

Interlocutory application(s), if any, also stand disposed of.