The failure to establish the offence under Section 307/34 of IPC due to lack of examination of the doctor and the investigating officer led to the alteration of the conviction to the offence punishable under Section 323/34 of IPC.

JUDGMENT :

This appeal is directed against the Judgment of Conviction and order of sentence dated 30.07.2003, passed by learned Additional Sessions Judge, FTC-III, Bokaro, in connection with S.T. No.25 of 1995, arising out of Chas P.S. Case No.70 of 1990, corresponding to G.R. No.978B of 1990, whereby and where under the appellants were convicted under Sections 307/34 of IPC and were sentenced to undergo R.I. for 7 years.

2. The prosecution case has been initiated by one namely Kanchan Mahato (informant P.W.5) that on 23/10/1990 at about 9.00 am, while he along with his son and wife were engaged in ploughing their field, in the meantime, the accused duly armed with Tangi & Lathi came there and claimed the land in question. It is alleged that accused Arjun Mahato assaulted by means of Tangi to the informant’s wife, as a result, his wife sustained injuries to her little finger of left hand and head, when the informant tried to stop, another accused Bhuwan Mahato, assaulted him over his head and knee by means of Lathi due to that his knee had been fractured. Further, case of the prosecution is that accused Pandoo Mahato, Pawan Mahato, assaulted Maninder Mahato, the son of the informant and on halla, nearby people reached and rescued them.

3. On the basis of said beyan, F.I.R. was registered under section 324, 325, 354/34 of I.P.C. and investigation of the case commenced, after investigation police submitted charge sheet. After cognizance, case is committed to court of sessions. The learned court below, after commitment of the case, framed charge against the four accused persons for the offence punishable under Sections 307/34 of IPC on 07.06.1999 including all the accused-appellants and after conducting the trial, the impugned judgment of conviction and order of sentence was passed, which is under challenge.

4. Heard learned defence counsel Mr. R.C.P. Sah appearing on behalf of the appellants and learned A.P.P. Ruby Pandey appearing on behalf of the State.

Submission on behalf of the appellants

5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel appearing on behalf of the appellants submitted that not a single independent witness has been examined in this case and the witnesses, who have been examined on behalf of the prosecution, all are interested and related to each other. Further, it is contended that the doctor and the I.O. in this case were not examined, though the injury report was proved by a formal witness and further there are various contradictions found with regard to the weapon used, injury caused to the persons, distance of place of occurrence from the house of the witnesses etc. Further, it has been pointed out that there was only one blow by each of the appellants, hence the conviction under Sections 307/34 of IPC is not tenable and the finding of the learned court below is contrary to the materials available on record and therefore the impugned judgment of conviction is bad in law and fit to be set-aside.

Submission on behalf of the State

6. On the other hand, learned A.P.P. appearing on behalf of the State vehemently opposed the contentions raised on behalf of the appellants and submitted that the learned court below has rightly appreciated the deposition of the witnesses examined on behalf of the prosecution and found the appellants guilty for the offences punishable under Sections 307/34 of IPC and no irregularity or any lacuna has been found in this case and therefore this appeal is fit to be dismissed for want of merit.

7. Having heard learned counsel for parties, perused the entire materials available on record including the lower court record.

Appraisal & Findings

8. PW – 5 Kanchan Mahato is the informant of this case and he has proved his signature on the statement submitted to the police, which has been marked as Ext-1. This witness has admitted that the appellant No. 1 Arjun Mahato was his cousin. He has also admitted in para 6 of his deposition that the accused appellan