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2009 DIGILAW 225 (JHR)

Tiwary Mahto v. State of Bihar (Now Jharkhand)

2009-02-12

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT This appeal is directed against the judgment and order dated 3.7.1998 passed by 5th Additional Judicial Commissioner, Ranchi in S.T. No. 487 of 1994 whereby and whereunder, the appellant has been convicted under section 302 of the IPC and sentenced to undergo imprisonment for life. 2. The case of the prosecution in short, as per the written report of P.W. 1 Sahdeo Mahto, is that on the date of occurrence i.e. 16.3.1994 at 6 p.m, while he and his wife were irrigating onion crop in their Bari, the appellant (Tiwary Mahto) came there and took the deceased, a small child aged about three months, from informant’s wife and thrown him into the well. The informant had tried to rescue the child but he could not survive. 3. Information was given to the police and on that basis Angara P.S. Case No. 14 of 1994 dated 17.3.1994 was registered under section 302 of the IPC. 4. The police took up investigation of the case and on completing the investigation, police submitted charge sheet against the appellant under section 302 of the IPC. 5. Cognizance was taken of the offence under Section 302 I.P.C. against the appellant and the case being exclusively triable by the court of sessions, was committed to the court of Sessions. After commitment of the case, the charge was framed against the appellant under section 302 of the IPC and the same was explained to him to which he pleaded not guilty and claimed to be tried. 6. The prosecution examined altogether nine witnesses in support of its case. The prosecution also brought on record some documents i.e. signature of informant on fardbeyan-Ext-1, signature of witnesses on the inquest report-Ext-2, P.M. report-Ext-3, formal FIR-Ext-4 and endorsement on written report-Ext-5. 7. The appellant was examined under section 313 of the Cr.P.C. His defence was total denial of charge. According to the appellant he has been falsely implicated in this case. Further defence appears from the suggestion given to prosecution witnesses as also from the answer of the appellant given in his examination under section 313 Cr.P.C., was that the deceased had accidentally fallen into the well and the appellant also tried to rescue the deceased. 8. According to the appellant he has been falsely implicated in this case. Further defence appears from the suggestion given to prosecution witnesses as also from the answer of the appellant given in his examination under section 313 Cr.P.C., was that the deceased had accidentally fallen into the well and the appellant also tried to rescue the deceased. 8. Learned trial court after considering the evidence available on record came to the conclusion that the prosecution has been able to prove the charge against the appellant under section 302 IPC beyond the shadow of all reasonable doubt. He, accordingly, convicted and sentenced the appellant as stated above. 9. Assailing the judgment of the court below, Mr. G.C. Sahu, learned counsel for the appellant submitted that there are vital contradictions in the evidence of P.W. 1 and 2 with regard to manner of occurrence. It is further submitted that non-examination of any independent witness, though available, cast a serious doubt in the case of prosecution. He submitted that learned court below has committed serious irregularity by not considering the statement of appellant given under section 313 Cr.P.C. It is submitted that the appellant had never any intention to commit the murder of the deceased who was just a child and this case does not come within the mischief of section 300 of the IPC. At best a case under section 304 of the IPC is made out and keeping in view that the appellant is in custody since 17.3.1994 the order of sentence may be modified to the extent of period undergone. 10. On the other hand, learned APP submitted that there is clear and cogent evidence on record to show that the appellant had taken away the child from P.W. 2 and thrown him into the well. The act of the appellant in throwing a three months old child into a well, was so imminently dangerous that it must, in all probability, would cause death. This will certainly come under the definition of murder under section 300 of the IPC. Learned court below had rightly convicted and sentenced the appellant for the offence under section 302 of the IPC and the impugned judgment requires no interference by this Court. 11. Having heard the submission of learned counsel for the appellant and learned A.P.P., we have also carefully scrutinized the evidence available on record. Learned court below had rightly convicted and sentenced the appellant for the offence under section 302 of the IPC and the impugned judgment requires no interference by this Court. 11. Having heard the submission of learned counsel for the appellant and learned A.P.P., we have also carefully scrutinized the evidence available on record. As noticed above, the prosecution had examined altogether nine witnesses in support of its case. P.W. 1 Sahdeo Mahto and P.W. 2 Jhupri Devi are the father and mother respectively of the deceased. They are the eye witnesses of the occurrence. P.W. 3 Ram Sagar Mahto is a co-villager and is a hearsay witness, P.W. 4 Jageshwar Mahto is a witness to inquest, He has proved Ext-2. P.W. 5 Sakhi Ram Mahto is also a co-villager who went to the place of occurrence on hearing hulla of P.W. 1 and P.W. 2 and had also jumped into the well to rescue the deceased. P.W. 6 and P.W. 7, namely, Lakhan Mahto and Nanku Mahto also are hearsay witness. P.W. 8 Dr. Arun Kumar Singh is the doctor who held post mortem examination on the dead body of deceased. P.W. 9 Sashi Nath Chaturvedi is the Investigating Officer. 12. On perusal of evidence of P.W. 8 the doctor, we find that he held autopsy on the dead body of deceased on 17.3.1994. He deposed that on examination he found no evidence of any mechanical injury either external or internal nor he found any evidence of pressure over nose, mouth, neck and chest. He found both the lungs voluminous and frothy fluids coming out. He gave opinion that death has been caused due to drowning. In the cross examination he had also stated that the child (deceased) was about three months old. Thus from the perusal of evidence of P.W. 8, it is clear that the deceased died due to drowning. This fact was not challenged by the appellant during the cross examination of doctor. 13. Now, the question arises as to whether this appellant has any hand in commission of the said crime? In order to seek the answer, the evidences available on record have to be scrutinized on that point. This fact was not challenged by the appellant during the cross examination of doctor. 13. Now, the question arises as to whether this appellant has any hand in commission of the said crime? In order to seek the answer, the evidences available on record have to be scrutinized on that point. P.W. 1 and 2 who are father and mother of the deceased respectively have categorically stated in their deposition that while they were irrigating the onion field, the appellant came over there, took the child from P.W. 2 and thrown him into the well. They have also stated that at the time of incident deceased was a three months old child. They have also deposed that P.W. 1 had jumped into the well and on raising alarm some villagers including P.W. 5 had come and taken out the deceased from the well. They found the deceased dead. 14. From the cross examination of P.W.-1 and P.W.-2, we find that they have admitted that there was no enmity with the appellant. They have also admitted that the appellant had also jumped into the well on their alarm. These witnesses have not suppressed anything from the court. This shows that they are truthful witnesses. 15. On further perusal of the cross examination of P.W. 1 and 2, we find that defence could not elicit anything from these witnesses on which their credibility can be impeached. We find that they stood to the test of cross examination. In our view, their evidence is wholly reliable and acceptable. 16. The evidence of P.W. 1 and 2 also found full support from P.W. 5 Sakhi Ram Mahto. He stated that at the time of occurrence he was ploughing by the side of place of occurrence and at that time he heard hulla of Sahdeo Mahto and his wife that Tiwary Mahto had thrown their child into the well. After hearing hulla, he immediately came to the place of occurrence and jumped into the well and took out the boy from the well. However, the boy was dead. From the perusal of evidence of P.W. 5, we find that he has corroborated the statement of P.W. 1 and 2 to the effect that immediately after incident, i.e. throwing of child into the well, they raised alarm and on hearing the said alarm, witnesses arrived at the place of occurrence. However, the boy was dead. From the perusal of evidence of P.W. 5, we find that he has corroborated the statement of P.W. 1 and 2 to the effect that immediately after incident, i.e. throwing of child into the well, they raised alarm and on hearing the said alarm, witnesses arrived at the place of occurrence. In his cross examination, we find nothing on which his testimony can be discredited. The evidence of P.W. 1 and 2 further found support from the medical evidence and objective finding of I.O. who prepared the inquest report (Ext.-6). The evidence of doctor ( P.W. 8) and the physical finding of the I.O. ( P.W. 9) shows that the deceased died due to drowning. 17. It is submitted by the learned counsel for the appellant that it has come in the evidence of P.W. 2 that one old lady, namely, Dharmi was present at the place of occurrence but she has not been examined and no explanation was given for her non-examination and therefore the same cast a serious doubt on the case of the prosecution. 18. It is true that if any independent witness is available then prosecution is required to examine such witnesses. But it is equally well settled that when there is clinching and reliable evidence on record, the same cannot be thrown to the dust, only because the independent witness has not been examined. As discussed above, we find that the evidence of P.W. 1 and 2 is wholly credible and reliable and as such non-examination of independent witness, namely, Dharmi is of no consequence. 19. Now coming to the submission of learned counsel for the appellant that the learned court below has not considered the statement of appellant made under section 313 Cr.P.C. to the effect that he also tried to rescue the deceased by jumping into the well. On considering the said statement, we are of the view that the appellant had admitted that he was present at the site and that the child died due to drowning. It further appears that the appellant had not given any explanation as to how the deceased fell into the well though by putting an specific question in his examination, the learned court below had given him opportunity to explain. It further appears that the appellant had not given any explanation as to how the deceased fell into the well though by putting an specific question in his examination, the learned court below had given him opportunity to explain. There is no enmity between the parents of the deceased and the appellant and there is no reason why they will implicate the appellant. 20. It is further submitted by the learned counsel for the appellant that it is admitted by P.W. 1, 2 and 5 that the appellant Tiwary Mahto had also jumped into the well for rescuing the deceased. The aforesaid fact was also admitted by the appellant in his statement under section 313 Cr.P.C. It is submitted that the aforesaid circumstance goes to suggest that the appellant had no intention to cause death of the deceased and in that view of the matter no case under section 302 of the IPC is made out and at best this case falls under section 304 Part II of the IPC. 21. We have considered the aforesaid submission of learned counsel for the appellant but we are unable to accept the same because, in our view, the case in hand is fully covered by the fourth Clause of section 300 of the IPC, which reads thus: “300……Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid….” It is common knowledge that act of throwing a child aged about three months into a well would be so dangerous that the same would in all probability cause death of the child. In the instant case, the conduct of appellant in throwing the deceased (a three months old child) into a well was so dangerous which, imminently caused death of the said child. 22. Thus, in our view, even if the appellant pleads that he had no intention to cause death of the deceased, his act comes within the mischief of the fourth Clause of section 300 of the IPC. We, therefore, hold that the offence under section 302 of the IPC is made out against the appellant. 23. 22. Thus, in our view, even if the appellant pleads that he had no intention to cause death of the deceased, his act comes within the mischief of the fourth Clause of section 300 of the IPC. We, therefore, hold that the offence under section 302 of the IPC is made out against the appellant. 23. Considering the facts and circumstances, as discussed above, we do not find any illegality and/or infirmity in the impugned judgment of conviction and order of sentence warranting any interference by this Court. 24. In the result, this appeal fails and is accordingly, dismissed.