Full Judgment
B.N.P. Singh, J.
1. Since there was deposit of mud in front of house of Brahmadeo Mahto P.W. 9 due to rain, and while he was removing mud from the lane and pasting it on the wall, it was alleged that the appellant along with Jagdish Mahto, Bhola Mahto and Jageshwar Mahto came and protested pasting of mud on the wall, pursuant to which, on exhortation made by Rameshwar Mahto, Brahmadeo Mahto on having trespassed in his house, dealt blow by grasa though aim was lost. It was alleged that when second blow was given, Brahmadeo Mahto suffered injury on his left leg and dropped on the ground. The witnesses who flocked to the place of occurrence were suggested to be the ocular witnesses of the incident, and with these accusations the prosecution was launched against the appellant and three others on behest of Brahmadeo Mahto. After the police was set in motion, investigation commenced in course of which the police Officer recorded statement of witnesses under Section 161 of the Code of Criminal Procedure, visited place of occurrence, got the injured clinically examined by the doctor and on conclusion of investigation laid charge-sheet before the Court. In the eventual trial that commenced, the prosecution examined altogether nine witnesses and those examined by the prosecution include injured, his family members, other host of witnesses and also the doctor who examined injury on the person of Brahmadeo Mahto.
2. The defence of the appellant before the trial Court and also this Court had been denial of entire allegations and ascribed false implication. The defence of the appellant was that Brahmadeo Mahto suffered injury in his left leg from the spade and due to negligence of the doctor attending him, his leg was amputated and in no way the appellant was answerable for amputation of leg.
3. Though the appellant along with three others were charged under Section 307/34 and 452 of the Indian Penal Code, the trial Court having found rest of three not guilty of the charges, exonerated them and as for the appellant, though he was found not guilty under Section 307/34 of the Indian Penal Code, suffered conviction under Section 326 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for a term of seven years.
4. A lot of arguments were canvassed at baron behalf of the appellant to assail the propriety of finding recorded by the trial Court and it is urged that regard being had to the dimension of the injury on the person of Brahmadeo Mahto as examined by the doctor, even though the case of the appellant did not fall within the ambit of Section 320 of the Indian Penal Code, the Court below recorded the aforesaid finding about guilt of the appellant under Section 326 of the Indian Penal Code. In quick succession it is urged hat admitting the prosecution case to be true on its face value, which is not the fact, that left leg of Brahmadeo Mahto was amputated the doctor who recorded his finding did not notice even bone cut injury on the left leg. Contentions were raised that except bald assertion made by the prosecution neither any injury report about amputation of left leg was placed on the record nor the doctor who attended Brahmadeo Mahto for Amputation for his left leg was ever examined at trial. While commenting upon testimony of P.W. 2, it is urged that regard being had to the situation where he was standing, possibility of his being an ocular witness was completely ruled out. The independent witnesses not claiming to be ocular witness to the incident was also taken to be ground to assail the bona fide of the prosecution case and as for P.Ws. 1, 2 and 3 it is urged that since they were close relation of Brahmadeo Mahto, their evidences had to be scrutinized with all care and caution and the last argument canvassed on behalf of the appellant was that since the prosecution was launched against the appellant in the year 1980 and the appellant had suffered ordeal of protracted prosecution for about 22 years, a lenient view in the matter may be taken while awarding sentence, if the finding recorded by the Court below about conviction of the appellant is upheld by this Court.
5. Now adverting to the evidences placed on the record, one may find Brahmadeo Mahto P.W. 9 reiterating his early version which he rendered before the police about the appellant dealing blows twice, one of which hit on his left leg. Almost similar narrations were made by P.Ws. 1, 2, 3, 5 and 7 also. P.Ws. 4, 6 and 8 were witnesses on the circumstances, as they claimed to have noticed the appellant making his good escape with garasa stained with blood. Though attention of some witnesses including that of P.Ws. 1, 3 and 7 were drawn by the defence towards their early versions which they allegedly rendered before the police, ostensibly to impeach their credibility, it is admitted that the Investigating Officer was not examined by the trial Court and hence these contradictions could not be brought on the record. Since Police Officer was not examined, I do feel that some questions remained unanswered about objective finding which he might have recorded during investigation. Be that as it may, the ocular testimony of the witnesses and also that of P.Ws. 4, 6, and 8 coupled with the finding recorded by the doctor, amply suggest the appellant to be the assailant of Brahmadeo Mahto who sustained injury on his left leg due to dealing of Garasa blow by the appellant. This fact cannot be lost sight of, that the witnesses were stating about amputation of left leg of the injured, notwithstanding the fact that the doctor who performed surgical operation on the injured was not examined at trial. Though bald suggestions were given to the witnesses that Brahmadeo suffered injury due to spade and there was amputation of leg due to negligence on part of the doctor, no defence witness was examined on this score. Apart from P.Ws. 1, 2 and 3 who were relations of Brahmadeo Mahto there was evidence of P.Ws. 5, 7 and 9 also to lend assurance to the prosecution allegation about appellant to be the assailant of the injured.
6. The prosecution was launched against the appellant in the year 1980 and rightly it is urged at bar that he suffered ordeal of protracted prosecution for about 22 years and while upholding the conviction of the appellant I do feel that ends of justice would be met if the appellant is sentenced to the term already undergone by him and in addition to that, he is sentenced to pay a fine of Rs. 2000 (two thousand) and in default, he would suffer rigorous imprisonment for six months. The fine must be deposted by the appellant within two months of the receipt/production of the order of this Court, which shall be payable to the injured or his successor in case former was not alive and with this modification in sentence, the appeal is dismissed.