Ananda Sen, J
1. Â This Criminal Appeal is directed against the judgment of conviction dated 28.04.2017 and order of sentence dated 03.05.2017 passed by learned
Additional Sessions Judge-V, Garhwa, in Sessions Trial No.12 of 2004, whereby, the appellants have been convicted under Sections 323, 324, 325,
326, 307 and 504 of the Indian Penal Code and sentenced for one year rigorous imprisonment with fine of Rs.500/- under Section 323 of the Indian
Penal Code. They were further sentenced for one year rigorous imprisonment and fine of Rs.500/- under Section 324 of the Indian Penal Code,
rigorous imprisonment for three years and fine of Rs.1,000/- under Section 325 of the Indian Penal Code, rigorous imprisonment for five years and fine
of Rs.2,000/-under Section 326 of the Indian Penal Code, rigorous imprisonment for ten years and fine of Rs.3,000/- under Section 307 of the Indian
Penal Code and rigorous imprisonment for one year and fine of Rs.500/- under Section 504 of the Indian Penal Code.
2. Learned counsel appearing on behalf of the appellants submitted that admittedly there was dispute between the parties and there is high probability
that these appellants have falsely been implicated in this case. He further submitted that P.W. 1 (Ajay Kumar Kushwaha) in his cross-examination,
has stated that these appellants had registered a case on his father, which is still pending. He also argued that the statement of P.W.1 clearly suggests
that since a case is pending against the father of P.W.1, at the instance of these appellants, these appellant have falsely been implicated in this case.
He also argued that so far as injuries are concerned, P.W. 3 (Sarsawati Devi) had stated that his son met with motorcycle accident eight days back.
This statement also suggest that injury on the son of P.W.3, if any, was due to the said accident, which has got nothing to do with this incident of
assault by the appellants. He further argued that P.Ws. 1, 3 and 7 (the informant) are highly interested witnesses as they are from the family of the
informant, thus, their evidence should be scrutinised very carefully. He submitted that non-examination of the Doctor has caused a great prejudice to
these appellants. Based on the said arguments, the appellants pray for acquittal.
3. Counsel appearing on behalf of the State submitted that P.W. 1 (Ajay Kumar Kushwaha), P.W. 3( Sarsawati Devi) and P.W. 7 (Saneyal Mahato)
have categorically stated that these appellants have assaulted P.Ws. 1 and 7. P.Ws. 1 and 7 being the injured witnesses have also stated the manner
in which the appellant have assaulted them. She further submitted that the weapon of assault was axe, which is a deadly weapon, and the injury on the
head, clearly suggests that the intention of these appellants was to commit murder of P.Ws. 1 and 7. It is submitted that only on the basis that the
witnesses are related, their testimony cannot be discarded. Further P.W. 2 (Arma Kushwaha), who is an eye witness, has deposed that he had seen
Kapildeo Mahto giving axe blow on the head of P.W.7 and Upendra Mahto assaulted P.W. 1 on his shoulder and Sashikala also assaulted P.Ws. 1
and 7 with lathi. She submitted that the judgment needs no interference.
4. Prosecution case as per the written report of Sanial Mahato is that his two brothers Kapildeo Mahato and Upendra Kumar Mahato and sister,
Sashikala Kumari were irrigating their onion field when water went into the informant’s wheat field which he saw at 05.00 A.M. on 01.04.2003
and made query with the accused persons where upon they started abusing him and assaulted him and his son, Ajay Kumar with lathi and axe due to
which they sustained injury. People came and intervened. On the basis of his fardbeyan Meral P.S. Case No.33 of 2013 was registered under Section
323, 325, 307/34 of IPC.
5. The police after investigation submitted chargesheet upon which the Court took cognizance and the case was committed to the Court of Sessions.
The Court framed charge under Section 323, 325, 326, 307 and 504/34 of IPC.
6. Prosecution in support of their case has produced seven witnesses i.e. P.W.1-Ajay Kumar Kushwaha, P.W.2- Arma Kushwaha, P.W.3- Sarsawati
Devi, P.W.4- Ayodhya Bind, P.W.5-Kamleshwar Mahato, P.W.6- Abdul Sakoor and P.W.7- Saneyal Mahato.
P.W.-1 Ajay Kumar Kushwaha, deposed that the occurrence is of 01.04.2003 at about 05.30 A.M when he was in his home. On hearing hue and cry
he came out and saw Upendra armed with axe, Kapildev armed with axe and Sashikala Kumari armed with lathi. Upendra assaulted him with axe on
his neck and arm. Kapildev assaulted with an axe on his head. Sashikala Kumar assaulted him on his hand and neck with lathi due to which a finger of
his left hand was cut. On raising alarm his father Sanial Mahato tried to intervene but Kapildeo Mahto also assaulted him with axe on his head.
Thereafter, his mother, brother and uncle reached there and on seeing them the appellants fled. His younger brother had taken him to police station
where his statement was recorded. In cross-examination he stated that in the year 1996, the appellants registered a case on his father which is still
pending. He stated before the police that while fleeing Kapildev fell down and fractured his hand.
P.W.-2 Arma Kushwaha deposed that at the time of occurrence, he was in his home and on hearing hue and cry he reached the place of occurrence
and saw Kapildev Mahato giving axe blow on Sanial Mahato due to which he fell unconscious. Upendra Mahato also assaulted by axe on Ajay on his
shoulder, neck and head and Sashikala assaulted Ajay and Sanial with the lathi. He stated that the dispute caused is due to irrigation. In cross-
examination, he stated that when he reached the place of occurrence Sanial Mahato was in conscious condition and he reached there alone, however,
the assault was going on.
P.W.-3, Sarsawati Devi, deposed that at 07.00 A.M. when she was at her field she saw water of Kapildeo Mahato’s field draining towards her
kahaliyan, when they objected, dispute arose due to which she left the place. In the khaliyan Kapildeo, Upendra and Sashikala armed with weapon
reached and Kapildeo started assaulting her husband Sanial Mahato on his head and Ajay Mahato was assaulted with axe by Upendra due to which
they sustained injury. In her cross-examination she stated that her son, eight days ago was injured in a motorcycle accident and his hand was
plastered.
P.W.-4, Ayodhya Bind and P.W.-5, Kamleshwar Mahato have been declared hostile and nothing important could be extracted from their depositions.
P.W.-6, Abdul Sakoor is the Investigating Officer, he stated that upon taking the charge of investigation he has recorded the re-statement of the
informant and the statement of other witnesses. He inspected the place of occurrence, which is near the field of Sanial Mahato. The requisition of
injury of Sanial Mahato and Ajay Kumar was marked as Exhibits-1 and 1/1. He identified the copy of Sanha No.11/03 and formal FIR which was
marked as Exhibits- 2 and 3 respectively. Finding the case true he submitted the chargesheet.
P.W.-7, Saniyal Mahato is the informant of this case. He deposed that the occurrence is of ten years ago at 07.00 A.M. He was in his house when
Kapildeo & Upendra reached there and assaulted him and his son, Ajay with axe on their head and neck. He also identified the statement which was
marked as Exhibit-4. In cross-examination, he stated that bone of contention of this dispute is the argument between the ladies. He further stated that
his statement was not recorded by the police.
7. Several documents were also produced and exhibited by the prosecution to prove its case.
8. After closure of evidence, the statement of the appellants were recorded u/s 313 Cr.P.C and after hearing the parties the trial court convicted the
appellants under Sections 323, 324, 325, 326, 307 and 504 of IPC and sentenced them as aforesaid.
9. After hearing the learned counsel for the parties and after going through the evidences of this case, we find that the appellants have been convicted
under Sections 323, 324, 325, 326, 307 and 504 of IPC. The witnesses i.e. P.W. 1 (Ajay Kumar Kushwaha), P.W. 2 (Arma Kushwaha), P.W. 3
(Sarsawati Devi) and P.W. 7 (Saneyal Mahato) have categorically stated that they were assaulted by these appellants with axe and lathi. They have
also stated that they were assaulted on head, shoulder and hand. These witnesses have stated that the reason for the assault is irrigation of the field as
the water went in the filed of the informant, as a result of which, altercation had taken place, resulting in the assault. Be it noted that the parties are
related to each other. P.W. 2 also deposed that he had seen the occurrence. Thus the oral evidence supports the factum of assault.
10. Now the question arises as to whether this oral evidences is supported by any medical evidence or not. When there is an allegation of assault and
injury by sharp cutting weapon i.e. by axe or lathi the same has to be corroborated by medical evidence. In this case, we find that no doctor who has
treated the injured has been examined. Exhibits- 1/ 2 and 1/3 are the injury report of the informant (P.W.7) and Ajay Kumar Kushwaha (P.W.1), but
from the documents, we find that these injury reports were exhibited by the Investigating Officer. The Doctor, who had prepared the injury reports or
who had treated the injured, has not been examined.
11. After going through both the injury reports, we further find that the same were exhibited “with objectionâ€. This means that the appellants have
not admitted the said injury reports. It is surprising as to why the doctor who issued the report, has not been examined. The reasons of non-
examination of the Doctor has also not been put forth by the prosecution. The appellants have raised a question about the genuinety of the documents.
Further the injury report of Ajay Kumar Kushwaha (P.W.1) suggests that there are four injuries, out of them, three are simple and Injury No. 4, which
is the fracture on the left hand is grievous. But the question arises as to whether the aforesaid injury was due to the said assault by the appellants or
due to the accident, which he had met with few days back. Be it noted that P.W. 3 (Sarsawati Devi), who is the mother of P.W. 1 had stated in her
cross-examination that his son had sustained injury in a motorcycle accident and injured his hand, which was a fracture. Thus there was serious doubt
as to whether injury of Ajay Kr. Kushwaha (P.W.1) on his hand was actually caused by the said assault or by the accident. If the doctor would have
been examined, the matter could have been clarified. Thus, a great prejudice has been caused to the appellants in non-production of the doctor as a
witness.
12. In absence of examination of the doctor, the fact also could not be gather as to whether the said assault and the injury could have cause death or
not. This was necessary as because the appellant have been convicted under Section 307 of the Indian Penal Code. Thus in absence of doctor as a
witness and also in view of the fact that the injury report has been doubted and has been exhibited with objection, it is not possible for the Court to
heavily rely upon the said injury reports. In this case, the benefit of doubt must go in favour of the appellants. Further the injury upon P.W.7 has also
not been proved. Though the witnesses stated that P.W. 7 was assaulted by axe on the head and other parts of the body, but there is no proper
medical evidence. Nature of the injury was also not proved nor it was proved whether the injury was sufficient to cause death in normal cause. Thus
we are of the view that Section 307 IPC has got no application in this case, nor Sections 324, 325 or Section 326 IPC are applicable as there is no
admissible corroborative medical evidence to prove that hurt was caused by dangerous weapon or the hurt was grievous. The weapon allegedly used
was also not brought before the Court.
13. Further, we find that there is long standing dispute between the appellants and the informant. It is an admitted case, which is evident from the
deposition of P.W. 1 (Ajay Kumar Kushwaha) that there is a criminal case pending against P.W. 7 i.e. the informant of this case, which has been
lodged at the instance of the accused persons.
14. Thus by giving the benefit of doubt, as discussed above, we are inclined to set aside the judgment of conviction of the Trial Court against the
appellants, so far as conviction under Sections 324, 325, 326 and 307 of the Indian Penal Code is concerned. Further on the facts based on evidence,
the conviction of the Trial Court against this appellant under Sections 323 and 504 IPC is sustained.
15. So far as sentence under Sections 323 and 504 IPC is concerned, their period of sentence is reduced to the period they have already undergone.
Since the appellants are on bail, they are discharged from the liabilities of their bail bonds. The bailors are also discharged of their conditions of the bail
bonds.
16. With the aforesaid observations and directions, this appeal is partly allowed.
17. Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment.
18. Pending interlocutory application, if any, is also disposed of.
