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2009 DIGILAW 561 (JHR)

Gaur Mohan Mahto v. State of Jharkhand

2009-04-16

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT By Court.- This appeal was initially preferred by Gaur Mohan Mahto, Niranjan Mahto, Jyotilal Mahto, Jagarnath Mahto and Motilal Mahto against the judgment of conviction and order of sentence passed by 2nd Additional ,Judicial Commissioner, Khunti, Ranchi dated 31.7.2001 whereby and whereby the appellants have been convicted under Section 302/34 of the IPC and sentenced them to undergo imprisonment for life. They have also been awarded fine of Rs. 1,000/- each payable to the State of Jharkhand. 2. It is submitted by learned counsel for the appellants that appellant no. 1 Gaur Mohan Mahto and appellant no. 2 Niranjan Mahto had died during the pendency of this appeal and therefore the appeal filed on their behalf is abated and now they are pressing the appeal on behalf of appellant nos. 3, 4 and 5. 3. The prosecution was launched on the basis of the fardbeyan of Jilpi Devi (wife of deceased Karam Singh Munda) dated 21.1.1996. 4. The prosecution, in brief is that Abhiram Mahto came alongwith three she goat and kept them in her house. On the same day, in the evening at 7 p.m. Abhiram Maho, Mochi Mahto, Jagarnath Mahto, Gaur Mohan Mahto, Shim Mahto, Niran Mahto and his two sons came with lathi in search of her husband. When she told that he was not present, Niran Mahto called him from the village and thereafter they went in the back of her house and started enjoying camp-fire. It is further alleged that in course of that all the accused persons started assaulting informant's husband. After hearing hulla, she went there and found that her husband was writhing on the ground in a pool of blood. Informant's son, namely, Ghashi Ram Singh Munda had tried to raise alarm but the accused persons also slapped him. During that period, Radha Govind Patar came and tried to pacify the matter, but he had also been "assaulted with lathi. After receiving injury, Radha Govind Patar fled away and raised alarm then all the accused persons fled away. Husband of deceased was seriously injured, therefore, he was brought to the house and in the night itself at about 10-11 p.m. he died. It is further stated that on 21.1.1996 while the informant was going alongwith village chaukidar, in the way, she met with the police officer accordingly information about the occurrence was given. 5. Husband of deceased was seriously injured, therefore, he was brought to the house and in the night itself at about 10-11 p.m. he died. It is further stated that on 21.1.1996 while the informant was going alongwith village chaukidar, in the way, she met with the police officer accordingly information about the occurrence was given. 5. On the said fardbeyan, Sonahatu P.S. Case No. 0007 of 1996 dated 21.1.1996 under Section 302/34 of the IPC was instituted and police took up investigation. After conclusion of investigation, police submitted charge-sheet against the appellants, under Section 302/34 of the IPC. 6. Charges were framed under Section 302/34 of the IPC against the accused person. They denied the charges and claimed to be tried. They were put on trial. 7. The prosecution in order to establish the charge against the appellant altogether examined 8 witnesses. After the close of the case of prosecution, the statement of accused persons were recorded under Section 313 Cr.P.C. in which their defence is of total denial. The court below after considering the evidence available on record convicted the appellants under Section 302/34 of the IPC and sentenced them to undergo imprisonment for life, but by the same judgment co-accused Abhiram Mahto, Muchi Ram Mahto and Shim Mahto were acquitted. 8. Learned counsel for the appellant has assailed the impugned judgment of the court below and submitted that the instant case rests upon the sale evidence of P.W. 4 Radha Govind Patar whose evidence is not reliable. In the instant case, even the I.O. has not been examined and therefore the place of occurrence has not been established. The non-examination of I.O. in this case is fatal for the case of prosecution. Learned counsel submitted that the judgment of conviction and order of sentence passed by the court below suffers from serious legal infirmities and are not sustainable. 9. Learned Additional P.P., on the other hand, submitted that the evidence of P.W. 4 is wholly reliable. Court below had rightly convicted the appellants on the basis of his evidence. He further submitted that due to non-examination of I.O., no prejudice has been caused to the appellants and therefore the same have no fatal consequences on the case of prosecution. 10. Having heard learned counsel for the appellants and learned A.P.P, we have scrutinized the materials on records. In the instant case, altogether 8 witnesses have been examined. He further submitted that due to non-examination of I.O., no prejudice has been caused to the appellants and therefore the same have no fatal consequences on the case of prosecution. 10. Having heard learned counsel for the appellants and learned A.P.P, we have scrutinized the materials on records. In the instant case, altogether 8 witnesses have been examined. P.W.1 Dharam Singh Munda is the brother of deceased who appears to be hearsay witness on the point of occurrence. P.W. 2 Birbal Singh Munda is the nephew of deceased who is also hearsay on the point of occurrence. P.W. 3 Gangadhar Singh Munda is a witness of inquest and P.W. 4 Radha Govind Patar has claimed himself to be the eye witness of the occurrence. P.W. 5 Jilpi Devi is the informant but she has not supported the case of prosecution, likewise P.W. 6 Ghashi Singh Munda, who is the son of deceased, had also been declared hostile as he has not supported the case of prosecution. P.W. 7 is Dr. R.S. Sahay held autopsy on the dead body and proved post mortem report which is marked as Ext.-2. P.W. 8 Shaligram Chaudhary is an Advocate Clerk, who proved FIR, Fardbeyan, Inquest Report, Seizure List and Case Diary which were marked as Exts.-3, 4, 5, 6 and 7 respectively. 11. P.W. 7, the doctor who held autopsy had found ante mortem injury on the dead body of deceased. According to him, the said injuries were caused by hard and blunt substance and according to him the death was due to shock and hemorrhage. It appears that appellants had not challenged the homicidal death of deceased. Thus, we find that prosecution had been able to prove that the deceased had died due to the ante mortem injury sustained by him. 12. Now the question arose as to whether the appellants have any hand in commission of murder of deceased. Accordingly, we are proceeding to consider the evidence available on records. As noticed above, P.Ws. 1 and 2 are hearsay on the point of occurrence and they have stated that they heard about the occurrence from Jilpi Devi the informant (PW. 5). Since Jilpi Devi had not supported the case of prosecution nor she had stated anywhere in her deposition that she disclosed about the occurrence to P.Ws.1 and 2, in our view, the evidence of P.Ws. 5). Since Jilpi Devi had not supported the case of prosecution nor she had stated anywhere in her deposition that she disclosed about the occurrence to P.Ws.1 and 2, in our view, the evidence of P.Ws. 1 and 2 is not admissible in evidence. In that circumstance, their evidence is excluded from the arena of consideration. 13. P.W. 3 is a witness of inquest and he had not stated anything about the involvement of these appellants in the commission of present crime. Thus, his evidence is also of no help to the case of prosecution. P.Ws. 5 and 6 who are informant and son of deceased had been declared hostile and they had not supported the case of prosecution, thus, their evidence is also of no help to the case of prosecution. Now, the only evidence remains to be considered in this case is the evidence of Radha Govind Patar (P.W. 4). 14. P.W. 4 Radha Govind Patar had deposed that on the date of occurrence he was returning from the shop after bringing K. Oil and when he reached near the house of Karam Singh Munda (deceased), he heard the sound of quarrel, whereupon he went to his house and saw that Jagarnath Mahto, Motilal Mahto, Jyoti Lal Mahto, Niru Mahto and Gaur Mohan Mahto were assaulting Karam Singh Munda with lathi in front of his house. He then deposed that when he tried to rescue him, he was also assaulted with lathi and thereafter he fled away. He further states that the accused persons had also assaulted the wife of Karam Singh with lathi. During the cross-examination, he deposed that he has not stated before the police that from which shop he was bringing K,Oil. At paragraph no. 5 he deposed that after receiving injury, he went to his house. At paragraph no. 9, he further deposed that no case was pending against him and Karam Singh Munda in the Court of SDJM, Khullti. At paragraph no.11 he deposed that he had not informed anybody in the village regarding the occurrence. 15, It is well settled that the evidence of solitary witness can become the basis for conviction but while doing so the court must be satisfied that his testimony is of such a sterling quality that the court finds it safe to base conviction solely on that. 15, It is well settled that the evidence of solitary witness can become the basis for conviction but while doing so the court must be satisfied that his testimony is of such a sterling quality that the court finds it safe to base conviction solely on that. Credibility of the witness is to be tested with reference to the quality of his evidence, which must be free from any blemish or suspicion, must impress the court as wholly truthful, must appear to be natural and so convincing that• the court has no hesitation in recording the conviction solely on that basis. Keeping in view the aforesaid settled principles of law, we are proceeding to consider as to whether the evidence of P.W. 4 is of such quality to become basis for convicting the appellants. 16. As noticed above, P.W. 4 has stated that when he went to the house of deceased Karam Singh Munda, he found that in front of the house, the appellants were assaulting the deceased, however, in the FIR the informant had categorically stated that the deceased and appellants were enjoying camp fire in the back of her house and during that period itself, the occurrence took place. Thus, the evidence of P.W. 4 to that extent, i.e. the occurrence took place in front of the house of deceased, appears to be suspicious. This witness at paragraph 9 had stated that he was not charge-sheeted alongwith Karam Singh Munda, Gobra Nat and Sukhram Nat in a case of highway robbery and against them no case is pending in the Court of SDJM, Khunti. But from perusal of Ext.-A which is a charge-sheet of G.R. Case No. 96 of 1995 pending in the Court of SDJM, Khunti, it appears that P.W. 4 is an accused in that case alongwith Karam Singh Munda (deceased), Gobra Nat and Sukhram Nat. This shows that P.W. 4 is not a truthful witness. The conduct of P.W. 4 in not disclosing the occurrence to anybody in the night is a serious infirmity, which destroys the credibility of the evidence of said sole eye witness. This shows that P.W. 4 is not a truthful witness. The conduct of P.W. 4 in not disclosing the occurrence to anybody in the night is a serious infirmity, which destroys the credibility of the evidence of said sole eye witness. Reference in this connection may be made to State of Orrisa vs. Brahmanand Nanda reported in (1976)4 SCC 288 , where it has been held ,that ,if the sole eye witness has not disclosed the occurrence to anybody, the same is a serious infirmity which affects the credibility of sole eye witness. Thus, aforesaid circumstances, discussed hereinabove shows that the evidence of P.W. 4 is not free from any blemish or suspicion and he also does not appear to be wholly truthful witness. Under the said circumstance, in our view, his evidence cannot become the sole basis for conviction. 17. In the instant case, I.O. had also not been examined. In the FIR it has been mentioned that the occurrence took place in the back of the house of informant and at that time appellants and deceased were enjoying camp fire, but P.W. 4 had stated that the said occurrence took place in front of the house of deceased. In the FIR, it is also mentioned that the deceased had fallen on the ground and was writhing in a pool of blood. Under the said circumstance, it is not clear as to where the occurrence took place. As noticed above, 1.0. has not been examined in this case and because of that the physical findings of 1.0. with regard to place of occurrence has not been brought on record. Thus, the defence has not been able to ask question from the 1.0. as to whether any ash, blood etc. were found by him at the place of occurrence or not and also as to whether the occurrence took place in front of the house of deceased or in the back of his house. Thus, in our view, a great prejudice has been caused to the defence due to the non-examination of I.O. It is well settled that if any prejudice is caused to the defence due to the non-examination of I.O., the same have fatal consequences on the case of prosecution. 18. Thus, in our view, a great prejudice has been caused to the defence due to the non-examination of I.O. It is well settled that if any prejudice is caused to the defence due to the non-examination of I.O., the same have fatal consequences on the case of prosecution. 18. Since the evidence of P.W. 4 cannot be accepted because the same is not truthful and free from any blemish and suspicion and also because the defence had been prejudiced due to non-examination of I.O., we are of the view that the prosecution had not been able to bring home the charges against the appellants beyond the shadow of all reasonable doubts. Hence the impugned judgment of conviction and order of sentence cannot sustain in this appeal. 19. In the result, this appeal is allowed. The impugned judgment of conviction and order of sentence dated 31st July, 2001 passed against the appellants by Sri Pradeep Kumar Singh, Additional Judicial Commissioner, Khunti (Ranchi) in Sessions Trial No. 523 of 1996 is hereby set aside. The appellants are acquitted of the charges. The surviving Appellant Nos. 3, 4 and 5. above named, who are in custody, shall be set at liberty forthwith, if not wanted in any other case.