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2000 DIGILAW 1152 (PAT)

Poshan Mahato v. State Of Bihar

2000-09-21

M.L.VISA, NARAYAN ROY

body2000
Judgment Narayan Roy, J. 1. Heard learned counsel appearing on behalf of the parties. 2. The sole appellant has been convicted under Sections 376, 302 and 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code, a term of ten years rigorous imprisonment under Section 376 of the Indian Penal Code and a term of five years rigorous imprisonment under Section 201 of the Indian Penal Code. The sentences passed under Sections 376 and 201 of the Indian Penal Code have been directed to run concurrently, whereas the sentence passed under Section 302 of the Indian Penal Code has been directed to run consecutively. 3. The prosecution case, as disclosed in thefardbeyan of the informant Phulendra Mahto (PW 8) recorded on 18.2.1992 at about 7.00 p.m., shortly stated, is that on 15.2.1992 at about 10.00 a.m. his sister Marani Kumari aged about 12-13 years had gone to Jamlahi Bahiyar of village Akashpur to cut grass. Till evening she did not return, consequently thereof, the informant and his parents started searching her, but she could not be traced out. On 16.2.1992 they went to their near relatives to enquire, but no trace was found and, ultimately, on 17.2.1992 the informant learnt from the villagers that on 15.2.1992 when his sister was cutting grass in Jamlahi Bahiyar her cousin brother Poshan Mahato, the appellant, was also in the same Bahiyar. On getting this information, the informant and other villagers started searching Poshan Mahato, but he could not be found in his house and, ultimately, the informant came to know that Poshan Mahato was hiding himself in the Diara area. On getting this information, the informant and other villagers started searching Poshan Mahato, but he could not be found in his house and, ultimately, the informant came to know that Poshan Mahato was hiding himself in the Diara area. He along with the villagers went towards Diara area, where Poshan Mahato was caught The matter was enquired into from Poshan Mahato, who in the beginning refused to divulge anything, but, later, confessed before the informant, Kailash San, Ram Sagar Yadav, Ram Bahadur Mahto, Gyani Mahato and Sadanand Mahato and other villagers that on 15.2.1992 finding Marani Kumari alone in the field he along with Joko Mahto, Ram Bilas Mahato and Rajo was were there from before, caught hold of her and took her to wheat field and there they committed rape on her one after another and after commission of rape she was strangulated to death and to hide the dead-body, they dug a ditch with the help of khurpi and put the dead- body in a gunny bag and burried the same in the wheat field of Munna Singh. Poshan Mahato (the appellant) further disclosed that he can show the place where the dead-body of Marani Kumari was burried. Then the informant along with the villagers went with the accused-appellant, Poshan Mahato, and on pointing out by this appellant, the dead-body of Marani Kumari was taken out of the ditch kept in a gunny bag from the wheat field of Munna Singh. On opening the gunny bag, the informant and the villagers identified the dead-body as of Marani Kumari. They had found blood around the nose and mouth of the deceased and the neck was found swollen and her salwar and frock were found torn. Several persons collected over the place of occurrence and the village mob assaulted the appellant, Poshan Mahato, as a result of which Poshan Mahato, the appellant, sustained injuries on his person. The village chowkidar and dafadar, reached there subsequently and on arrival of SI of Singhaul Police Station, PW 11, the fardbeyan of the informant was recorded. 4. On the basis of thefardbeyan, formal first information report (Ext. 5) was drawn up and a case under Sections 376, 302 and 201/34 of the Indian Penal Code was registered. After due investigation, charge-sheet was submitted and cogni-zance was taken against the appellant and other accused-persons. 4. On the basis of thefardbeyan, formal first information report (Ext. 5) was drawn up and a case under Sections 376, 302 and 201/34 of the Indian Penal Code was registered. After due investigation, charge-sheet was submitted and cogni-zance was taken against the appellant and other accused-persons. Two of the accused- persons, namely, Rajendra alias Rajo Mahto and Ram Bilas Mahto absconded, and, therefore, this appellant and Jako Mahto (since acquitted) were put on trial. 5. The defence of the accused- persons was plea of innocence and false implication on account of land dispute. The appellant, Poshan Mahato, as it appears from his statement under Section 313 of the Code of Criminal Procedure, denied to have made any extra- judicial confession, as alleged by the prosecution. 6. The prosecution in all examined eleven witnesses in support of its case. PW 1 Upendra Mahto was also in the same Bahiyar, where Marani Kumari was seen cutting grass. On this information he along with the villagers started searching Poshan Mahato, who was his agnate, but Poshan Mahato was not available in his house and he came to know that he was hiding himself in the Diara area. On 18.2.1992 he along with the villagers went towards Diara area and there they apprehended Poshan Mahato. On questioning Poshan Mahato confessed before him and the villagers that he along Juko Mahato, Rajendra Mahato and Ram Bilas Mahto committed rape upon Marani Kumari finding her alone in the Bahiyar and strangulated her to death and thereafter the dead-body was put in a gunny bag and after digging a ditch the dead-body was concealed in the ditch and on his pointing the body of Marani Kumari was recovered from the field of Munna Singh. This witness has categorically disclosed the name of the villagers namely, Kailash Sao, Ram Sagar Yadav, Gyani Mahto, Ram Bahadur Mahto, Sadanand Mahto and some other villagers, before whom Poshan Mahato confessed his guilt leading to recovery of the dead-body. 7. This witness has further stated in his evidence that after recovery of the dead-body several villagers collected there was became infuriated, as a result of which, they assaulted Poshan Mahato for committing such crime and consequently Poshan Mahato sustained certained injuries on his person. This witness has been cross-examined at length, but no discrepancy has been found in his cross-examination. 8. This witness has been cross-examined at length, but no discrepancy has been found in his cross-examination. 8. PW 9 Kalo Devi, the mother of the deceased has deposed on the same line, as that of PW 8, Phulendra Mahto. In her evidence, she has stated that her daughter Marani Kumari had gone to cut gross on 15.2.1992 in Jamlahi Bahiyar and when she did not come back till the evening hours, the family members started searching her. Even they went to their relatives, but no trace of Marani Kumari was found and, ultimately, her son Phulendra Mahto came to know on 17.2.1992 that Poshan Mahato, the appellant, was seen in the same "Bahiyar at the relevant time, where the deceased was cutting grass, and, accordingly, the family members started searching Poshan Mahato, whose house was just by the side of her house, but he could not be found in his house and on 18.2.1992 on search he was found hiding himself in the Diara area and when he was caught by the informant and the villagers, he confessed his guilt saying that he along with Joko Mahato, Rajendra Mahto and Ram Bilas Mahto committed rape upon the deceased and thereafter strangulated her to death and burried her dead- body in the field of Munna Singh. She has further stated in her evidence that only after the appellant confessed his guilt he was assaulted by the village mob. She has been cross-examined at length, but testimony has not been shaken. 9. Likewise PW 1 Upendra Mahto, PW 5 Kailash Sao, PW 6 Chhotelal Mahto and PW 7 Kapildeo Mahto have also deposed on the same line as that of PWs 8 and 9. From their evidence it appears that they had gone with the informant to search the appellant and the appellant was found hiding himself in the Diara area and he had confessed his guilt m the manner disclosed by PWs 8 and 9 leading to recovery of the dead-body of Marani Kumari from the field of Munna Singh. These witnesses have categorically stated in their evidence that Poshan Mahato (the appellant) on asking confessed his guilt in the manner, as discussed above, and on his pointing the dead-body was recovered from the field of Munna Singh and after recovery of the dead body the furious mob, which had collected over the place of occurrence assaulted Poshan Mahato. 10. These witnesses have categorically stated in their evidence that Poshan Mahato (the appellant) on asking confessed his guilt in the manner, as discussed above, and on his pointing the dead-body was recovered from the field of Munna Singh and after recovery of the dead body the furious mob, which had collected over the place of occurrence assaulted Poshan Mahato. 10. From the evidence- of the prosecution witnesses, as discussed above, it is manifest that the appellant was caught hiding himself in Diara area and had confessed his guilt making inculpatory statement. It is also manifest from their evidence that the appellant made inculpatory statement voluntarily disclosing the factum and manner of occurrence, as disclosed above, and the dead-body was recovered on his pointing from the field of Munna Singh. In evidence these witnesses have given a vivid picture of the prosecution case and they are consistent in their evidence and as such, they have spelled out the truth. From the evidence, therefore, it is mani- fest that the confession made by the appellant was voluntary and no coercive measure was taken for the alleged confession. 11. From the evidence of PWs 2, 3 and 4, who have been declared hostile by the prosecution, it appears that though they have been declared hostile, they have admitted in the examination-in-chief and cross-examination that Poshan Mahato, the appellant, after he was caught by the villagers in their presence he confessed his guilt and of his pointing the dead-body was recovered. PW 2 in paragraph 5 of his cross-examination has categorically stated that after the dead-body was recovered the villagers assaulted him out of acrimony, as a result of which he sustained injuries on his person including his eye. Likewise, PW 3 in his evidence stated that when Poshan Mahato, the appellant, was caught, he went up to the field of Munna Singh and pointed out that the dead-body has been burried there in the field and only after recovery of the dead-body he was assaulted by the villagers. From the evidence of PW 4 it appears that search was made for Marani Kumari for about two days and Poshan Mahato, when he was searched out, informed that the dead-body had been burried in the field of Munna Singh. It is further manifest from his evidence that Poshan Mahato had also confessed his guilt that he had killed her. From the evidence of PW 4 it appears that search was made for Marani Kumari for about two days and Poshan Mahato, when he was searched out, informed that the dead-body had been burried in the field of Munna Singh. It is further manifest from his evidence that Poshan Mahato had also confessed his guilt that he had killed her. The" relevant part of the evidence of the hostile witnesses, as referred to above, is admissible and, thus, their evidence lends support to the prosecution case. 12. PW 10, Dr. Sarangadhar Jha, held autopsy over the dead- body. In his evidence he has stated that on 19.2.1992 he had hold autopsy over the dead-body of Marani Kumari and had found the following ante mortem injuries : (i) Compressed spot at the neck with two abrasions of 1" x 1/2" sizes at the side of neck. (ii) One abrasion of 1" x 1/2" at the left side of cheek and (iii) One 1 /2" x 1 /2" abrasion at the left breast. On dissection the sub-cutaneous tissues and muscles of neck was congested and on further dissection the 3rd, 4th and 5th cartileges of treachia was broken and the treachia was collapsed at the broken side and the oesophagus and pharynx and mouth portion was full of food matter rice, pulse, etc. (iv) On examination of vaginatalia the hymen was torn and the vaginal wall was lacerated, thick {sic) like substance was present at the upper side of vagina and in the uterus. 13. In the opinion of the doctor (PW 10), the death was caused by compression of neck, as stated in injury No. 1, causing fatal suffocation produced by the substance causing compression of neck. From the evidence of the doctor, it is manifest that sign of rape was also found on the deceased. 14. The evidence of PW 10 fully corroborates the prosecution version of the case as also the manner of the death of the deceased. The evidence of the doctor is also suggestive of the fact that it was a case of homicidal death. 15. 14. The evidence of PW 10 fully corroborates the prosecution version of the case as also the manner of the death of the deceased. The evidence of the doctor is also suggestive of the fact that it was a case of homicidal death. 15. From the evidence of the Investigating Officer (PW 11), it would appear that when he received an information that a dead-body had, been recovered and one person has been caught he proceeded to village Rachiahi and there he recorded the fardbeyan of the informant and he held inquest of the body of the deceased and prepared an inquest report. It will further appear from his evidence that he visited the place of occurrence and particularly, in the field of Munna Singh he found standing wheat crops and trampling mark was found over an area of 5-6 ft. and there he also found a ditch measuring into 3 x 2 x 2 & 1/2. It is also manifest from his evidence that he took Poshan Mahato in custody, who was assaulted by the villagers. On perusal of his evidence as a whole, no contradiction has been found and his evidence is very consistent supporting the prosecution version of the case. According to his evidence, the place of occurrence is the wheat field of Munna Singh where he had found trampling marks over an area of 5-6 ft. and a recently dug ditch was also found, wherefrom the dead-body was recovered. From his evidence it is further evident that the informant (PW 8), his mother (PW 9) and other villagers, namely, PWs 5, 6 and 7 and others had stated before him about the confession of Poshan Mahato leading to recovery of the dead-body. 16. The evidence of the prosecution witnesses, as disclosed above, is very consistent on the point of inculpatory statement made by the appellant leading to recovery of the deceased. The prosecution witnesses have proved the place of occurrence and also the manner of occurrence and they have brought home the charges against the appellant beyond all reasonable doubts. 17. Learned counsel appearing on behalf of the appellant submitted that from the evidence, it would appear that the appellant was firstly assaulted and out of fear he confessed his guilt and the dead-body was not recovered at his pointing. 17. Learned counsel appearing on behalf of the appellant submitted that from the evidence, it would appear that the appellant was firstly assaulted and out of fear he confessed his guilt and the dead-body was not recovered at his pointing. Learned counsel, therefore, submitted that the alleged confession made by the appellant is not admissible in evidence. 18. From the evidence of DWs 1 and 2, as discussed above, it appears that they have stated that the informant and Poshan Mahato, the appellant, were on inimical terms and on that account, he has been falsely implicated. They have also suggested in their evidence that the appellant, Poshan Mahato, was coerced to confess the guilt and when he was assaulted by the villagers he confessed his guilt. The evidence of DWs 1 and 2 do not inspire confidence at the face of the evidence of the prosecution witnesses. 19. PWs 1 and 9 have consistently stated that when Poshan Mahato, the appellant, was caught from the Diara area, he firstly confessed his guilt and on his pointing the dead-body was recovered and only after the recovery of the dead-body, the furious mob, which had collected over the place of occurrence assaulted him. There is overwhelming evidence on record to show that the confession of the appellant was voluntary and inculpatory one leading to recovery of the dead-body. The evidence of the doctor (PW 10) and that of the Investigating Officer (PW 11) leaves no room to doubt the veracity of the prosecution version of the case in any manner and it must be held that the prosecution has been able to bring home the charges against the appellant. From the evidence of the prosecution witnesses, it is manifest that the appellant-accused had confessed his guilt and had made inculpatory statement before some of the independent witnesses, namely, PWs 1,5,6 and 7 stating that he along with other accused-persons committed rape on the deceased and thereafter strangulated her to death and burried her in the field of Munna Singh and on pointing of the appellant the dead-body was recovered from the field of Munna Singh. The confession of the appellant, as such, is a relevant fact under Section 24 of the Evidence Act admissible under Section 27 of the Evidence Act, as on information furnished by the accused the dead-body was recovered. The confession of the appellant, as such, is a relevant fact under Section 24 of the Evidence Act admissible under Section 27 of the Evidence Act, as on information furnished by the accused the dead-body was recovered. In the case of Maghar Singh V/s. State of Punjab, 1975 SCC (Cri) 479, the Apex Court in paragraph No. 5 held : "The second contention put forward by the learned cbunsel for the appellant was that there was no material corroboration of the statement of the approver and the High Court convicted the appellant on the basis of the extra-judicial confession made by the two accused before some persons but that could not in law be regarded as any corroboration at all, because one tainted evidence cannot corroborate another tainted evidence. The evidence furnished by the extra-judicial confession made by the accused to witnesses cannot be termed to be a tainted evidence and if corroboration is required it is only by way of abundant caution, If the Court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary, then in such a case conviction can be founded on such evidence alone as was done in Rao Shiv Bahadur Singh V/s. State of U.P., AIR 1954 SC 322 , where their Lordships of the Supreme Court rested the conviction of the accused on the extrajudicial confession made by him before two independent witnesses, namely, Gadkari and Perulakar. In the instant case also, after perusing the evidence of PW 3 and FW 12 we are satisfied that they are independent witnesses before whom both the appellant and accused Surjit Kaur made confession of their guilt and this, therefore, forms a very important link in the chain of circumstantial evidence. In our opinion the argument proceeds on fundamentally wrong premises that the extra-judicial confession is tainted evidence." 20. In view of the ratio laid down by the Apex Court in Maghar Singh (supra) I will have no hesitation to hold that the confession of the appellant admitting his guilt forms a very important link in the chain of circumstantial evidence, as the confession was made before the independent witnesses, namely, PWs 1, 5, 6 and 7 besides other witnesses and. thus, it cannot be said to be tainted evidence. thus, it cannot be said to be tainted evidence. The extrajudicial confession leading to recovery of the dead-body, thus, is admissible under Section 27 of the Evidence Act. 21. For the reasons and discussion aforesaid, therefore, I find overwhelming evidence to sustain the impugned judgment and order of conviction and sentence passed against the appellant. 22. In the result, this appeal is dismissed. However, the sentence passed against the appellant shall run concurrently. M.L.Visa, J. 23 I agree.