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2007 DIGILAW 552 (JHR)

Lachhan Mahto v. State Of Jharkhand

2007-07-11

DHANANJAY PRASAD SINGH, DILIP KUMAR SINHA

body2007
JUDGMENT D.P. Singh, J. 1. The Sole appellant Lachhan Mahto @ Laxman Mahto has preferred this appeal against the judgment and order dated 22.5.2001 and 25.5.2001 respectively passed by 4 th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 64 of 1990 whereby and whereunder the appellant has been convicted under Section 302/307/436/34 of the Indian Penal Code and sentenced to undergo R.I. for life, for ten years and for ten years respectively and fine of Rs. 1000/- on each count and in default of payment of fine R.I. for three months each, all the sentences to run concurrently. 2. Brief facts leading to this appeal are that in the after noon of 29.4.1989 P.W. 1 Dr. Ahmad Ali visited village Tarwa P.S. Keredari, district Hazaribagh in course of attending his patient Bandhan Ganjhu where after the treatment some dispute arose between the doctor and Bandhan Ganjhu on payment of fees. As further stated the appellant took up the cause and threatened him for asking exorbitant fees. However after this the doctor came to the house of the informant where he informed them regarding the incident and stayed for sometime. According to the informant Khairu Nisa P.W. 4 after sometime the appellant along with Rajendra Mahto and Ratan Mahto arrived searching Dr. Ahmad and returned back on being informed that they have already left. However immediately two of them returned with arms and bundles of straw to put the house on fire. She further asserted that when she protested they pushed P.W. 2 and 4 inside the house along with deceased Basiruddein and fastened the chain from out side after which the house was set on fire with the help of straws. 3. The informant along with her mother P.W. 2, however managed to come out of the house from back door. They were further assaulted by the appellant and Ratan but managed to flee to the house of Arjun Ravidas of Agratand where they confined themselves for the whole night. According to her, in the morning she could learn that the entire house was burnt to ashes and her husband Bssiruddin has died. P.W. 2 and 4 thereafter went for their treatment with the help of P.W. 10 in the Bachra Health Center. The police was informed regarding the incident. According to her, in the morning she could learn that the entire house was burnt to ashes and her husband Bssiruddin has died. P.W. 2 and 4 thereafter went for their treatment with the help of P.W. 10 in the Bachra Health Center. The police was informed regarding the incident. Bachra T.O.P. police recorded the statement of P.W. 4 on the basis of which Keredari P.S. Case No. 55 of 1989 was registered for the offences under Section 302,307,436/34 of the Indian Penal Code against the appellants. 4. The police after investigation submitted charge sheet against three persons and they were charged for offences under Section 302,307,436/34 of the Indian Penal Code jointly on 27.5.1991 to which they claimed innocence. During the trial accused Rajendra Mahto absconded. The learned trial court after considering the evidence available on the records found and held appellant along with Ratan Mahto guilty for the charges under Section 302,307,436/34 of the Indian Penal Code. However it was found that convict Ratan Mahto was minor at the time of the occurrence and sent his case before the Juvenile Board after holding him guilty. The present appellant has been sentenced as mentioned aforesaid. 5. This appeal preferred by the appellant from Jail in July 2002 was admitted for hearing on merit after appointing Mrs. Lilly Sahay, Advocate as amicus curiae to assist the Court on behalf of the appellant. Later on vakalatnama was filed on behalf of the appellant by advocate Sri Bhaiya Vishwajit Kumar. 6. The main points raised in this appeal are that the whole prosecution story suffers from incredibility and any supporting evidence. According to Sri Kumar, the learned trial court relying upon only two witnesses who are highly interested and related closely, convicted the appellant without going into the contradictions brought on record from the cross examination of prosecution witnesses. Sri Kumar further pointed out that the death of Basiruddin, husband of P.W. 4 might be caused in some other manner because in spite of his death due to burning the cloth on his body was not burnt. It was further pointed out that the informant and her mother themselves have admitted that they could not see who put fire in the house because they have been confined inside the house. It was further pointed out that the informant and her mother themselves have admitted that they could not see who put fire in the house because they have been confined inside the house. Our attention was further drawn towards the facts that in spite of alleged assault upon P.W. 2 with Farsa by the appellant, no injury has been found by P.W. 3 to support the allegation. As such the entire prosecution story suffers from contradictions, improbability and falsehood. Our attention was further drawn towards the facts that the appellant has remained in custody from May 1989. 7. We have gone through the material on record to ascertain the correctness of the submission made on behalf of the appellant. The prosecution story made out in the fard beyan and later on before the trial court is that some dispute arose between the doctor P.W. 1 and Bandhan Ganjhu on payment of fees. It has also come on record that during this dispute the appellant intervened and threatened the doctor. It has further come on record after this doctor left the house of Bandhan Ganjhu and arrived at the house of the informant, where he used to visit whenever he came to village Tarwa. P.W. 1 has further admitted that while he was visiting another patient, appellant along with two others threatened him that he will follow and teach him a lesson. According to P.W. 2 and 4 at about 7 p.m. the appellant along with two others arrived at her house armed with Farss, Bows and arrows inquiring about P.W. 1. Both of them asserted that when, appellant was informed that doctor has already left, they went back and came again carrying straw to put fire to the house. We find that both of them consistently stated that in spite of their protest the appellant and two others spread straw on the house and put the straw afire after pushing them in side the house. According to them the door was closed from out side and fire engulfed the house, P.W. 2 and 4 managed to came out of the house from back door when they were assaulted by the appellant and his friends. This fact has been supported by circumstances. P.W. 5 Dr. Parmanand examined both of them and found injuries on their body next day at about 10 a.m. P.W. 10 Md. This fact has been supported by circumstances. P.W. 5 Dr. Parmanand examined both of them and found injuries on their body next day at about 10 a.m. P.W. 10 Md. Imbrahim Firdosi has supported the prosecution story as hear say witness regarding the incident and injuries found on them in details. He is admittedly not the resident of the village Tarwa but P.W. 2 and 4 have gone to his house in the morning to seek help in getting themselves treated. We do not find any reason to disbelieve these out siders P.W. 5 and 10 to the extent that P.W. 2 and 4 has received some injuries. 8. The prosecution has examined P.W. 6 Jhalwa Devi, P.S. 7 Sanicharia, P.W. 8 Magha Ganjhu and P.W. 9 Panchathi Ganjhu on the point of incident but they turned hostile. P.W. 6 is wife of said Bandhan Ganjhu for whose treatment the doctor had gone on 29.4.1989. P.W. 6, 8 and 9 are neighbours who were brought to testify admittedly by the mother of accused Rajendra Mahto meaning thereby wife of the appellant. In such circumstances without relying upon their statement, prosecution story has to be considered on the material available in the record. P.W. 11 Mansoor Alam is brother of the informant and P.W. 13 Md. Hasim related with the informant have been tendered by the prosecution. P.W. 12 is seizure list witness. P.W. 3 Dr. S.S. Sahay who conducted the post mortem examination on the dead body of Basiruddin has found extensive burn injuries on his body and opined that the death has occurred due to extensive burn injuries. The I.O. has not been examined in this case. 9. Therefore, we find that the prosecution depends upon the statement of P. W. 2 and 4 supported by P. W. 1 and 10. The genesis of the occurrence is supported by evidence of P.W. 1,2 and 4. The injury on the P.W. 2 and 4 have been supported by P.W. 5 and 10. P.W. 10 has further supported the prosecution story as hear say witness. P. W. 2 and 4 are the eyewitnesses of the occurrence and victims. The genesis of the occurrence is supported by evidence of P.W. 1,2 and 4. The injury on the P.W. 2 and 4 have been supported by P.W. 5 and 10. P.W. 10 has further supported the prosecution story as hear say witness. P. W. 2 and 4 are the eyewitnesses of the occurrence and victims. The learned Counsel for the appellant pointed out that it would not be safe to rely upon these two witnesses who are closely related and interested but failed to point out why these two witnesses may be interested in getting the appellant convicted for any offences, he has not committed. It is not disputed fact on record that the house of the informant was burnt to ashes in which her husband died. The prosecution version that the appellant along with two others has set a fire the house on suspicion that Dr. Ahmad was hiding inside has not been disputed. We do not find any reason or evidence on record to disbelieve their version only on the grounds that they were not in position to see from inside who put the house on fire. These two witnesses have specifically mentioned that the appellant along with two others came with bundle of straws and spread them on the house before pushing them inside the house. Therefore, we find that there is clear evidence that straw were put a fire by the appellant and others. These two witnesses have further supported how they managed to come out of the house from back door to receive blows on their body in the process of fleeing away. Even the hostile witnesses admitted that the house was found burnt in the morning from where the dead body of the husband of the informant was seized by the police. We further find that the informant has not been cross examined by the counsel of this appellant. Strange enough the witnesses were cross examined at length by the counsel for co convict Ratan Mahto, they preferred not to cross examine the material witness for this appellant. 10. Learned trial court has considered all these facts and circumstances in the impugned judgment at length. After going into the impugned judgment, we further find that the learned trial court has discussed the evidence individually for different charges under Section 302,307,436/34 of the Indian Penal Code vide para 16,17,18,19 and 20. 10. Learned trial court has considered all these facts and circumstances in the impugned judgment at length. After going into the impugned judgment, we further find that the learned trial court has discussed the evidence individually for different charges under Section 302,307,436/34 of the Indian Penal Code vide para 16,17,18,19 and 20. We do not find any reason to disagree with the view taken by the learned trial court. 11. In the facts and circumstances, mentioned above, we find that the present appeal has got no merit in it and deserves to be dismissed. Accordingly, the order of conviction and sentence passed against the appellant under Section 302,307,436/34 of the Indian Penal Code by the trial court is hereby affirmed. 12. In the result, this appeal stands dismissed. D.K. Sinha, J. 13. I agree.