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2009 DIGILAW 1572 (JHR)

Basudeo Mahto v. State of Jharkhand

2009-12-10

J.C.S.RAWAT, PRASHANT KUMAR

body2009
HON'BLE MR. JUSTICE J.C.S. RAWAT: ORAL This appeal has been preferred by the appellants against the judgment dated 2.12.2003 and the order of sentence dated 3.12.2003 passed by the 6th Additional Sessions Judge, Giridih in S.T. No. 356 of 2002/ 30 of 2003, whereby, the appellants have been convicted under Sections 302/34, 326/34 and 452 /34 of the Indian Penal Code and they have been sentenced to undergo imprisonment for life under Section 302/34 IPC, rigorous imprisonment for three years under Section 326 /34 IPC and simple imprisonment for 6 months under Section 452/34 IPC and it is directed that sentences would run concurrently. The convicts have also been directed to deposit a fine of Rs. 1000/- each out of which, 75% of the said amount was to be given to the legal heirs of the deceased, Dalo Mahto as compensation. 2. From the record, it is revealed that there was a dispute between Dalo Mahto and Gotiya Khoso Mahto andothers with regard to extraction of Mahua from Mahua Tree. According to the deceased, the said tree was in his land and he did not allow anyone to pick up Mahua. On 4.4.2002 at 6 a.m. the accused- appellants along with other two accused persons Gokul Mahto and Babu Mahto came at the house of the deceased armed with weapons in their hands. They entered into the house of the deceased and he was dragged out from his house and they grounded him. Basudeo Mahto caused injury upon the deceased by sword (Talwar) and the other accused also caused injuries by different weapons, which they were holding in their hands. Some of the accused-appellants assisted in assaulting the deceased. The deceased fell down on the spot. A hue and cry was made, thereupon, Etwari Mahto and his son Arjun Mahto reached at the spot to help the deceased but the appellants also assaulted them so as to prevent them from helping the deceased. Thereafter, the villagers reached at the spot but the accused-appellants fled away from the place of occurrence. Dalo Mahto died at the spot due to the injuries caused by the appellants and the other co-accused. The injured witnesses, Etwari Mahto and Arjun Mahto were sent to the Hospital for their treatment and the matter was investigated by the police. Thereafter, the villagers reached at the spot but the accused-appellants fled away from the place of occurrence. Dalo Mahto died at the spot due to the injuries caused by the appellants and the other co-accused. The injured witnesses, Etwari Mahto and Arjun Mahto were sent to the Hospital for their treatment and the matter was investigated by the police. After investigation, the chargesheet was submitted against the accused appellants as well as the other two co-accused, named above. 3. The case was committed to the court of Sessions and the learned trial Court framed the charges against theaccused appellants and the other co-accused persons. The accused appellants denied the charges and claimed for trial. 4. The prosecution in support of its case has examined Etwari Mahto (P.W.-3) & Arjun Mahto(P.W.-4) asinjured eye witnesses, Somari Devi (P.W.- 6), Tarun Kumari (P.W.- 7), Lakhiya Devi (P.W.-8), the wife of P.W.-3, Etwari Mahto, Mahadeo Mahto, P.W.- 10, the informant of this case and Chetni Devi, P.W.- 16 as eye witnesses of the incident. The prosecution has also examined the Doctor, Kamleshwar Prasad, P.W-11, who conducted autopsy on the body of the deceased. P.W.12- Dr. Rajesh Kumar was also examined, who has proved the injuries on the persons of injured Etwari Mahto and Arjun Mahto. P.W.-13- Yadu Mahto is not an eye witness as he reached at the spot and he saw the dead body and found injuries on the person of the deceased and he also saw Etwari Mahto and Arjun Mahto in injured condition. P.W.- 14, Rajendra Ravidas has been declared hostile by the prosecution. P.W.- 15, Somyua Priyadarshi is the Investigating Officer of this case. 5. After conclusion of the prosecution evidence, the accused appellants were examined under Section 313 ofthe Cr.P.C. and they have denied all the averments made in the prosecution evidences against them and they said that they have falsely been implicated in this case. The defence has also adduced certain documentary evidence in support of their defence. 6. After conclusion of the trial, the learned trial court convicted and sentenced the appellants as indicatedabove. The co-accused, Gokul Mahto and Babu Mahto were acquitted from the charges by the trial court. 7. It needs to be mentioned that it is not in dispute that the deceased died at the time and place indicated in theprosecution story. The autopsy of the deceased was conducted by Dr. The co-accused, Gokul Mahto and Babu Mahto were acquitted from the charges by the trial court. 7. It needs to be mentioned that it is not in dispute that the deceased died at the time and place indicated in theprosecution story. The autopsy of the deceased was conducted by Dr. Kamleshwar Prasad, P.W.- 11 on 4.4.02 at 4 P.M., who found the following ante mortem injuries on the person of the deceased:- 1. Incised wound 2" x 4" x skin deep, left side on chest. 2. Incised wound 3" x 4" x muscle deep, over left calf muscle. 3. Lacerated wound 2" x 4" x skin deep, over right leg. 4. Incised wound infront side of neck 3" x 4" x up to cervical bone cutting. It is opined that the injury no. 3was caused by the blunt object and rest of injuries were caused by sharp edged cutting weapons and the duration of death was stated to be about 24 hours before the time of autopsy. Dr. Rajesh Kumar, P.W.- 12 has examined Arjun Mahto, P.W.- 4, on 4.4.02 at about 8:50 AM in the Hospital and found the following injuries. 1. incised wound 3" x1/4" x up to bone on lt. Side of skull with bleeding. 2. Incised wound 2"x 1/4"x m.s. deep on Rt. forearm with bleeding. 3. Incised wound 5"x1/4"x bone deep on Rt. Foot with bleeding. 4. Abrasion on Lt. Leg size 1" x 1/2". According to the opinion of the doctor, all the injuries, except injury no. 4, were caused by sharp edged cutting weapon whereas injury No. 4 was caused by the blunt object. X-ray of the injuries was advised. The duration of the injuries was found within six hours at the time of medical examination. On the same day, Etwari Mahto, P.W.-3 was also examined at 8:35 AM by Dr. Rajesh Kumar, P.W.-12 and found the following injuries on his person. 1. Compound fracture of Lt. Leg below knee with incised wound 2,1/2" x 1/1" x bone deep bleeding(+). 2. Incised wound Rt. Foot 7"x1/4"x m.s. Bleeding (+). 3. incised wound on Rt. Leg below knee 2"x1/4"x upto bone, bleeding (+). The doctor has opined that all theinjuries were caused by sharp edged weapon. Injury No. 1 was grievous and the duration of the injuries was within six hours at the time of medical examination. 2. Incised wound Rt. Foot 7"x1/4"x m.s. Bleeding (+). 3. incised wound on Rt. Leg below knee 2"x1/4"x upto bone, bleeding (+). The doctor has opined that all theinjuries were caused by sharp edged weapon. Injury No. 1 was grievous and the duration of the injuries was within six hours at the time of medical examination. The patients were referred to Dhanbad Hospital for further management. The prosecution has led the oral evidence of the witnesses that the incident occurred at 6:30 A.M. in the morning of 4.4.02 and the deceased as well as the injured sustained the injuries at the spot. Thus it is fully established by the evidence that the deceased as well as the injured sustained the injuries at the time and place as indicated by the prosecution. 8. Now it is to be decided as to whether these injuries were caused by the accused appellants on the person of the deceased and on the persons of the injured. The prosecution has adduced the evidences of injured, P.W.-3 Etwari Mahto and P.W-4 Arjun Mahto, who were injured during the course of the incident at the place of occurrence. The prosecution has also produced the evidence of Somri Devi, P.W.- 6, Tarun Kumari, P.W.-7, Lakhiya Devi, P.W-8, Mahadeo Mahto, P.W.- 10, the informant of this case, and Chetni Devi, P.W.-16 who had corroborated the evidence of P.W.- 3, Etwari Mahto and P.W.- 4- Arjun Mahto. These witnesses had seen the occurrence. They have stated the meticulous details and manner of the incident. All these witnesses have stated that the deceased Dalo Mahto was in the courtyard of his house and all the appellants and the co-accused holding arms in their hand reached at the spot. At first, appellant Raju Mahto and Sanu Mahto assaulted the deceased on his leg by sword. Thereafter, Gokul Mahto and Babu Mahto, co-accused caught hold the leg of the deceased and Sanu Mahto and Raju Mahto caught hold the head of the deceased. Badri Mahto, the appellant raised the head of the deceased through hair and the appellant Basudeo Mahto struck on the throat of the deceased by sword. The hue and cry was made, thereafter, P.W.- 3, Etwari Mahto and P.W.-4, Arjun Mahto reached at the spot and they tried to help the deceased but the appellants also assaulted both the witnesses and they also sustained injuries. The hue and cry was made, thereafter, P.W.- 3, Etwari Mahto and P.W.-4, Arjun Mahto reached at the spot and they tried to help the deceased but the appellants also assaulted both the witnesses and they also sustained injuries. Thereafter, some other witnesses came at the spot but the appellants fled way from the place of occurrence. This fact has been corroborated by all the eye witnesses. 9. P.W.- 6, Somri Devi has deposed that she went to house of the deceased to upkeep his house in the morningat about 5 AM as there was some engagement ceremony was to be held in the house of the deceased and she was cleaning the courtyard of the house of the deceased and the deceased was doing some work there. Thereupon, the accused-appellants reached there and she saw the entire incident. She narrated the entire prosecution story meticulously. 10. Tarun Kumari, P.W.- 7, daughter of the deceased, was sweeping her house when the accused appellantsreached there and she saw the entire incident and corroborated the evidences of Etwari Mahto, P.W.- 3 and Arjun Mahto, P.W. 4. Lakhiya Devi, P.W.- 8, wife of Etwari Mahto(P.W.-3) was also cleaning of her house at that time the deceased was working in his courtyard. She has also corroborated the entire evidences of the injured witnesses. 11. P.W.- 10, Mahadeo Mahto, informant of this case, has gone to the house of the deceased where his wife Somri Devi, P.W.-6 was also present and doing some work in the house of the deceased. He also corroborated the evidence of the all eye witnesses in material particulars. Chetni Devi, P.W.- 16 is also an eye witness of the incident, who narrated the entire story in meticulous details and supported the evidence of the injured eye witnesses. She was sitting in her door nearby the courtyard of her house. All the eye witnesses have corroborated the entire incident in all material particulars, accordingly. 12. The learned counsel for the appellants contended that the witnesses are related to the deceased or the injured, therefore, their evidences cannot be taken into account. It was also contended that the evidence of P.W. 3, Etwari Mahto and P.W.- 4, Arjun Mahto cannot be taken into account as they are also related to the deceased. 12. The learned counsel for the appellants contended that the witnesses are related to the deceased or the injured, therefore, their evidences cannot be taken into account. It was also contended that the evidence of P.W. 3, Etwari Mahto and P.W.- 4, Arjun Mahto cannot be taken into account as they are also related to the deceased. The prosecution has established that P.W.- 3 and P.W.- 4 had sustained injuries at the time of the incident at the spot. The prosecution has adduced the evidence of injured eye witnesses, P.Ws. 3 and 4. They have narrated the entire incident as indicated above. The injured eye witnesses have been cross examined at length but nothing could be elicited from their evidence to discredit their testimony. The deposition of the injured eye witnesses establishes the factum of incident and the participation of the accused appellants in the incident. The evidence of the injured eye witnesses cannot be doubted as they had sustained injuries at the time of the incident. The prosecution has proved the injuries on the persons of the injured eye witnesses as indicated above. The injured witness stands at higher pedestral than that of the ordinary eye witness. It is also well settled proposition of law that the testimony of the injured eye witness is sufficient to base the conviction and no further corroboration is required. The injured eye witness cannot be discarded lightly. The injured eye witnesses have been cross-examined at length and they remained consistent with regard to details of the incident. Their testimony is credible and cogent. The testimony of an injured witness has its own relevance and efficacy. The fact that the witnesses had sustained injuries at the time and place of occurrence, support to the testimony that the witnesses were present during the course of occurrence. [See in the cases of Narendra Nath Khaware Vs. Paras Nath Khaware and other (reported in 2003 SCC (Cr.) 1144) and State of U.P.-Vs.-Kishan Chand and others (reported in 2004 SCC (Cr.) page 2013.] 13. So far as the contention of the learned counsel for the defence with regard to the witnesses that they are related with the deceased and the injured or with each other and their testimony cannot be relied upon is of no avail to the appellants. It is admitted by the parties that the witnesses are related to each other. So far as the contention of the learned counsel for the defence with regard to the witnesses that they are related with the deceased and the injured or with each other and their testimony cannot be relied upon is of no avail to the appellants. It is admitted by the parties that the witnesses are related to each other. There is no rule or law or prudence which requires the evidence of the close relation must be discarded for the simple reasons that they are related to each other. It would be endevoured of the related witnesses to see that the real culprits would be punished but normally they would not implicate wrong person in the crime so as to allow the real culprits to escape unpunished. 14. The Hon'ble Apex Court in the case of State of Punjab Vs. Karnail Singh reported in 2004 (I) SCC(Crl.)135 has observed in paras- 8 and 9 as follows: Para-8: "We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh V. State of Punjab ( AIR 1953 SC 364 : 1953 Cri LJ 1465) in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p-366, para 25) 25: We are unable to agree with the learned judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavored to dispel in ' Rameshwar V. State of Rajasthan ( AIR 1952 SC 54 : 1952 Cri LJ 547) (AIR at page 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel." Para-9: "Again in Masalti Vs. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel." Para-9: "Again in Masalti Vs. State of U.P. [ AIR 1965 SC 202 :(1965) 1 Cri LJ 226] this court observed : (AIR pp. 209-10, para 14)- But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ...The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 15. In the case of Kulwant Singh @ Kulbansh Singh Vs. State of Bihar, reported in 2007 (4) AIR SCW 4124in para 9, it has been observed as follows; "...............There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicated the accused. No evidence has been lead in this regard." Now it is settled proposition of law that the evidences of the partisan witnesses or the related witnesses are to be scrutinized carefully and it should not be brushed aside only because they are related to each other or partisan witness. 16. We have gone through the entire evidence of the injured eye witnesses and other eye witnesses with the assistance of the learned counsel for the parties and the evidence of the witnesses with regard to the incident as they have corroborated each other on the material points. We do not find any fault in the approach of the trial court to appreciate the evidence of the eye witnesses and we are also completely in agreement with the findings recorded by the trial court. The evidences of the eye witnesses are consistent and it is totally believable. 17. We do not find any fault in the approach of the trial court to appreciate the evidence of the eye witnesses and we are also completely in agreement with the findings recorded by the trial court. The evidences of the eye witnesses are consistent and it is totally believable. 17. The learned counsel appearing for the appellants contended that according to the FIR the dispute occurreddue to plucking of Mahua from the Mahua Tree and the prosecution has not proved the said motive at any stage of the prosecution evidence. The learned counsel for the State refuted the said contention of the appellant. From perusal of the FIR, it is revealed that there was a dispute regarding plucking of Mahua from Mahua Trees but it is not in the FIR that at the time of plucking of the Mahua, the incident occurred. It is clearly indicated in the FIR that on 4.4.02 at the time and place of incident, the accused appellants entered into the house of the deceased and committed the offence. Thus the arguments of the learned counsel for the appellants that the dispute occurred during the course of plucking of Mahua from Mahua Trees is misconceived and misplaced. Assuming for the sake of arguments that the prosecution has failed to prove the sufficient motive against the appellants, the law is settled that when the prosecution case is consistently supported by the eye witnesses, the question of motive lost its importance to bring home the guilt of the appellant accused. It is not necessary for the prosecution to prove the motive. The expression of motive is only one of the circumstance to be kept in mind while appreciating the evidence adduced by the prosecution. If the evidence of the witnesses appears to be truthfully convincing failure to prove the motive is not fatal to the case of the prosecution. It is also well established that the motive is not sine quo non for proving the prosecution case [See Yunis Vs. State of M.P. (reported in SCC page 2003 Volume (1), page 425) and B.C. Hosamani Vs. State of Karnatka (reported in 2007 Volume (1) SCC (Crl.) page 456]. In view of the above discussions, we do not find any force in the contention advanced by the learned counsel appearing on behalf of the appellants. 18. State of M.P. (reported in SCC page 2003 Volume (1), page 425) and B.C. Hosamani Vs. State of Karnatka (reported in 2007 Volume (1) SCC (Crl.) page 456]. In view of the above discussions, we do not find any force in the contention advanced by the learned counsel appearing on behalf of the appellants. 18. The learned counsel for the appellants further contended that there are contradictions and inconsistencies in the testimony of the prosecution witnesses. The learned counsel for the appellants pointed out certain contradictions in the testimony of the witnesses. Learned counsel for the State has also refuted this contention and contended that minor contradictions always creep in the testimony of the truthful witnesses. The learned trial court has held that the contradiction pointed out in the evidence of the prosecution are not material to discard the testimony of the witnesses. We do not find any fault with the findings recorded by the trial court. The genesis of the incident has been clearly established. The witnesses have given the details of the incident in their deposition according to their own understanding. The discrepancies as pointed out by the defence is of no consequence and we have gone through the entire evidence and contractions pointed out by the learned counsel for the appellants. It is pertinent to mention herein that when a witness appears before the Court sometimes he may not stand in the cross-examination, which may be sometime, because he is a bucolic person and is not able to understand the questions put to him by the skillful cross-examiner and at times under the stress of cross- examination, certain answers are snatched from him. When the rustic and illiterate witness faces astute lawyers there is bound to be imbalances and therefore, minor discrepancies have to be ignored [See Kirshna Mochi Vs. State of Bihar 2002(6) SCC page 81). The incident occurred on 4.4.02 whereas the deposition of the witnesses started from 23.6.03 to September 2003 i.e. after a long time and due to lose of time, certain discrepancies and inconsistencies are bound to occur. 19. In this case, the Fardbeyan was lodged on 4.4.02 at about 8:15 hours in the morning. The incident occurred at about 6 A.M. The distance between the place of occurrence and the police Station is about 14 KM. 19. In this case, the Fardbeyan was lodged on 4.4.02 at about 8:15 hours in the morning. The incident occurred at about 6 A.M. The distance between the place of occurrence and the police Station is about 14 KM. Thus the complainant has lodged the FIR immediately after the incident and therefore, there is no delay in lodging the FIR and thus the prompt FIR inspires the confidence that it was not the out-come of any consultation or deliberation. The FIR in Criminal cases, particularly in a murder case is a vital and valuable piece of evidence for the purposes of appreciating the evidence led at the trial. The object of insisting upon the lodging of the prompt FIR is obtained the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and as also the names of eye witnesses, if any. The delay in lodging the FIR of the incident resulting embellishment, which is a creature of an afterthought. On account of delay in lodging the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in the introduction of a colour version or exaggerated story. The fact that the appellants killed the deceased further stand corroborated by the prompt FIR in which the name of the appellants have been shown. 20. The learned counsel for the appellants further contended that the FIR or the fadbeyan only indicates that the appellants come at the place of occurrence holding the weapons on their hands and they started hurling abuses. Thereafter, all the accused appellants caused injuries upon the deceased and he fell down on the ground and he sustained injuries on his person. He further pointed out that the prosecution witnesses have given meticulous details in the evidence and the role played by the each accused appellants during the incident. This it is an afterthought story of the prosecution. The learned counsel for the State refuted the contention. From perusal of the record, it is revealed that in the FIR the names of the appellants have been indicated and it is indicated in the FIR that they assaulted the deceased and the deceased sustained the injuries and succumbed to the injuries. Thus in precise, the informant has given the entire version of the incident. From perusal of the record, it is revealed that in the FIR the names of the appellants have been indicated and it is indicated in the FIR that they assaulted the deceased and the deceased sustained the injuries and succumbed to the injuries. Thus in precise, the informant has given the entire version of the incident. The evidence produced by the prosecution specially indicates the individual role of each of the appellants and meticulous details of the role played by them. It is well settled position of law that the FIR is not the encyclopedia in which all the details should be mentioned. If the genesis of the incident has been mentioned in the FIR, it is sufficient. The FIR is lodged only to give the motion to the investigation. It is not reasonably expected that the scared eye witnesses specially related to the deceased would be able to give meticulous and the precise account of details of the incident. The informant has only narrated the summery of the incident and all the witnesses have given consistent version during the course of the evidence. Thus we do not find any forces in the contention of the learned counsel of the appellants. 21. The learned counsel further contended that the prosecution has only adduced the evidence of the related witnesses and it is in the evidence that there were other residents of the village, who were present at the spot, the prosecution should have produced the evidence of those independent witnesses who had seen the incident. The learned counsel appearing for the State refuted the contention. It is true that the injured witnesses are related to deceased and the other witnesses are also somehow or the other related to the prosecution witnesses or the deceased. However, their evidences cannot be discarded solely on the ground that they are related to each other as pointed out above. It is also settled position of law that it is not always necessary to multiply the evidence on the same point and it has to be seen what is quality of the witness. Thus the quality of the evidence is to be seen and not the quantity, which is required. If the evidence available on record is satisfactory in nature and can be said to be trustworthy that increase in the number of the witnesses cannot be the requirement of the case. Thus the quality of the evidence is to be seen and not the quantity, which is required. If the evidence available on record is satisfactory in nature and can be said to be trustworthy that increase in the number of the witnesses cannot be the requirement of the case. Moreover, it has become a fashion that the public is reluctant to appear and depose before the court specially in the criminal cases because of the criminal cases are kept dragging for years to come and the witnesses are being threatened and intimidated and they are unnecessary subjected to lengthy cross- examination so that witnesses avoid to come to the Court. In the instant case, all the witnesses have given consistent version of the evidence. We do not find any forces in the contention of the appellants. 22. on the entire appraisal of evidences, the trial court has found the evidence of the prosecution to betrustworthy, credible and cogent. We have also perused the entire evidences and the documents produced by the prosecution and the defence, we do not find any fault with the findings recorded by the trial court. We are completely in agreement with the findings recorded by the trial court and we do not find infirmity in the evidence of the prosecution witnesses. The prosecution witnesses are totally consistent during the cross examination and they had corroborated the evidence of each other on all the material points. The defence could not elicit anything from the evidence of the prosecution witnesses to discredit their testimony. 23. In view of the above, we do not find any reason to differ the findings recorded by the trial court. The trial court has rightly convicted and sentenced the appellants. We, therefore, affirm the conviction and sentence of the trial court and the appeal is liable to be dismissed. According, this appeal is dismissed.