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Jharkhand High Court · body

2009 DIGILAW 605 (JHR)

Jagdish Mahto v. State of Jharkhand

2009-04-22

N.N.TIWARI, PRASHANT KUMAR

body2009
JEGEMENT The appellants were charged under Sections 302/34 of the Indian Penal Code for committing murder of Pradeep Kumar Verma. Learned trial court, on conclusion of trial, found the charges proved against the appellants and by the impugned judgment convicted them under Sections 302/34 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for life. 2. The prosecution case was based on the fardbeyan of Gobind Mahto-P.W. 6 dated 28.2.1992. 3. The prosecution case, in brief, is that Pradeep Kumar Verma was a student of Madhupur College. On 26.2.1992 at about 8-9 A.M. he left his house 'for filling up form of I.Com. examination in his college at Madhupur. He had Rs. 550/- in his pocket. He was to come back home on the same day, but he did not return. The next day also he did not return. The informant alongwith his brother Basudev Mahto and Naresh Mahto, then, started searching him. In course thereof they reached Madhupur, but they did not find him. In the meantime at night the youngest brother of the informant namely Hari Mahto came from village and reported that even on that day he did not return home. The informant again started searching him throughout the town. While they were going towards east through the railway track of Madhupur at about 5:30 A.M. they spotted that five persons had pressed someone on the railway track. On seeing the informant the said persons fled away. When the informant went there with his brothers Basudev and Janardan, they saw Pradeep lying dead. Fresh blood was oozing from his mouth and nose. It was stated that there was land dispute and litigation between the informant's family and the accused persons, out of enmity, the appellants killed Pradeep Kumar Verma. 4. On the said fardbeyan of the informant, Police registered a case under Sections 302/34 I.P.C. and on conclusion of investigation the Police submitted charge-sheet against the accused-appellants. 5. Charges under Sections 302/34 of the Indian Penal Code were framed against the appellants. The appellants pleaded not guilty and claimed to be tried. They were put on trial. In his examination under Section 313 Cr.P.C. their defence was total denial of their involvement. It was stated that they have been falsely implicated by the informant due to previous enmity. 6. The appellants pleaded not guilty and claimed to be tried. They were put on trial. In his examination under Section 313 Cr.P.C. their defence was total denial of their involvement. It was stated that they have been falsely implicated by the informant due to previous enmity. 6. The prosecution, in order to establish the charges against the appellants, altogether examined nine witnesses. P.W. 1 Hari Mahto is the youngest brother of the informant; P.W. 2 Kanchan Mahto is a co-villager; P.W. 3 Soni Besra is said to be charged witness; P.W.4 Basudev Mahto is another brother of the informant, who was accompanying him; P.W.5 Janardan Verma is also brother of the informant, who claimed to have seen the accused persons pressing a boy on the railway track; P.W.6 Gobind Mahto is the informant; P.W.7 is the doctor, who conducted autopsy on the dead body of the deceased. The doctor had found several injuries and opined that death must have taken place about 48 hours ago from the time of conducting post mortem. P.W.8 Anant Prasad Jha is the Sub-Inspector, who had made investigation in the case. The investigating officer was examined as P.W.9. 7. The defence also examined two witnesses. D.W. 1 Surendra Prasad Ray is the witness, whose statement was taken in course of investigation and recorded in paragraph-20 of the case diary. D.W.2 Kedar Nath Ray is another witness examined by the defence. His statement was also taken in course of investigation and the same was recorded in paragraph-21 of the case diary. The prosecution also brought on record the inquest report-Exhibit-1 and post-mortem report-Exhibit-2. 8. Learned trial court, on conclusion of the trial, found that the prosecution witnesses proved the presence of the accused persons with the deceased Pradeep, who on seeing the informant and other witnesses fled away. The informant and other witnesses, thereafter, found Pradeep dead and blood oozing out from his mouth and nostrils. The doctor found head injury as the cause of the death of Pradeep. Learned court below, on the said finding, held the appellants guilty of committing murder of Pradeep and convicted and sentenced, as aforesaid. 9. Mr. B.M. Tripathy, Senior Counsel appearing on behalf of the appellants assailed the impugned judgment and the appellants' conviction and sentence. There is no direct evidence of causing any injury or giving any blow by the accused-appellants. Learned court below, on the said finding, held the appellants guilty of committing murder of Pradeep and convicted and sentenced, as aforesaid. 9. Mr. B.M. Tripathy, Senior Counsel appearing on behalf of the appellants assailed the impugned judgment and the appellants' conviction and sentence. There is no direct evidence of causing any injury or giving any blow by the accused-appellants. Even if the entire evidences of inimical and interested witnesses are accepted, the only fact which has been proved by them is that the accused persons were found on the railway track, where the dead body of Pradeep was found. Learned counsel submitted that there is no iota of evidence on record on the basis of which charges under Sections 302/34 I.P.C. can be said to be established by the prosecution. The testimony of the ocular evidences is contradicted and falsified by the medical evidences. Only on suspicion the accused-appellants have been charged of committing murder of Pradeep Kumar Verma on 28.2.1992 at about 5:30 A.M. But the doctor-P.W. 7 who conducted the post mortem, on examination of the dead body on 29.2.1992 at 11.15 A.rv1. has given opinion that the death had taken 48 hours ago and definitely not within 24 hours. Mr. Tripathy further submitted that from the overall assessment of the facts on record it is evident that it is a case of false implication of the appellants due to admitted previous enmity, land dispute and litigation between the parties. The said fact strengthens from the other circumstances on record. The fardbeyan was recorded on 28.2.1992 at 10:30 A.M. but the F.I.R. was received in the Court of learned Chief Judicial Magistrate after about four days on 3.3.1992; There is no explanation of such inordinate delay of this transition period and there is every chance of deliberation and false implication of the accused-appellants by the informant on coming to know about the accidental death of deceased Pradeep Kumar. Learned counsel submitted that this is not a case of abduction and killing the person. Pradeep Kumar had gone to Madhupur on 26.2.1992 for filling up form of I .Com. examination in his college and he was missing. On his person several injuries were found by the doctor. There was every possibility of his death in some accident and the false implication of the appellants. Pradeep Kumar had gone to Madhupur on 26.2.1992 for filling up form of I .Com. examination in his college and he was missing. On his person several injuries were found by the doctor. There was every possibility of his death in some accident and the false implication of the appellants. The prosecution story has also not been proved by any direct or positive evidence on record. P.W. 1 Hari Mahto, own brother of the informant, has not supported the prosecution version and declared hostile. In paragraph-2 of his deposition he has stated that he did not accompany the informant at any time nor he had seen the accused persons with the dead body at the railway track. P.W. 2 is not eye witness of the occurrence. He was just asked by Hari Mahto to inform about the death of Pradeep. P.W, 3 Soni Besra is said to have seen five persons pressing one person at railway track at about 5:30 A.M. However, she had not stated that those persons were assaulting anybody. She has also not identified the accused persons. P.W. 4 Basudev Mahto is another brother of the informant and is an interested witness. He has stated that he was accompanying Gobind alongwith Janardan Verma and one Naresh Mahto. In his cross-examination he admitted that there was land dispute and litigation between them and the accused persons. P.W. 5 Janardan Verma is brother of the informant. He has simply stated that he saw five persons pressing a boy on the railway track and running away. He has also not stated about any assault by any accused-appellants. P.W. 6 Gobind Mahto is the informant. He has stated that Naresh Mahto, co-villager, had also accompanied him at that time. However, said Naresh Mahto should have been an independent witness, has not been examined by the prosecution. P.W. 7 Dr. M.A. Sattar on medical examination of the dead body has found number of injuries. According to his opinion, death of the deceased took place more than 48 hours ago due to haemorrhage and shock as a result of fracture of frontal bone of skull and other injuries. P.W. 8 Investigating Officer, in course of investigation at the beginning had taken statement of Surendra Prasad Ray at paragraph-20 of the case diary and Kedar Nath Ray at paragraph-21 of the case diary. P.W. 8 Investigating Officer, in course of investigation at the beginning had taken statement of Surendra Prasad Ray at paragraph-20 of the case diary and Kedar Nath Ray at paragraph-21 of the case diary. The prosecution did not produce the said witnesses, who were subsequently examined by the defence. P.W. 9, another Investigating Officer, who had subsequently taken investigation, has also not proved anything on record regarding assault by any appellant or inflicting injuries to the deceased by them. Learned counsel submitted that D.W, 1 Surendra Prasad Ray and D.W. 2 Kedar Nath Ray whose statements were taken in the case diary, had been examined by the defence in support of the stand that they are Innocent and that it was a case of false implication by the informant. D.W. 1 Surendra Prasad Ray in his deposition has stated that on 28.2.1992 Gobind Mahto (informant) was with him at 8:00 A.M. at Village-Amdiha about 8 k.m. away from the place of occurrence and on getting information about the recovery of the dead body of Pradeep he was sent by them by motorcycle. D.W. 2 Kedar Nath Ray, another witness is the Sarpanch of Balnadih Panchayat. He has stated that on 26.2.1992 at about 8:00 A.M. information of recovery of dead body of Pradeep was received through Chaukidar Dhanraj Mahto. On getting the said information one Sachidanand Roy took him to Madhupur on his motorcycle. Learned counsel submitted that the said statement is not an afterthought, rather it was there in the case diary. The statement of Chaukidar Dhanraj Mahto was also recorded at paragraph-26 of the case diary, but said independent witness has not been examined in this case which leads to adverse inference against the prosecution and in favour of the accused-appellants. Learned counsel submitted that from the appraisal of the evidence there is no direct circumstantial evidence to prove even the complicity of the appellants in the murder of Pradeep Kumar. In absence of any material to constitute an offence under Section 302 I.P.C. the appellants have been illegally convicted and sentenced by the impugned judgment and the same is not at all sustainable. 10. Earned A. P. P. on the other hand, submitted that the death of Pradeep Kumar is not disputed. There was admitted enmity between the informant and the accused persons. 10. Earned A. P. P. on the other hand, submitted that the death of Pradeep Kumar is not disputed. There was admitted enmity between the informant and the accused persons. It has come from the evidence of P.Ws.4, 5 and 6 that appellants were present at the railway track where the dead body of Pradeep Kumar was found. The said evidences on record are, thus, sufficient to prove the charges against the accused appellants. It has been submitted that though there was no explanation for the delay in sending the F.I.R. and receiving the same in the court, the appellants have not been prejudiced by the said delay. Learned A.P.P., however, has not commented on the doctor's opinion regarding the time elapsed since the death of Pradeep Kumar. 11. Having heard learned counsel for the appellants and the A.P.P. and considered the facts, materials and evidences on record, we find that in this case there is no allegation of giving any assault by any of the accused appellants on the deceased. Even if the entire prosecution case and the evidences are accepted as it is, the only case made out is that these appellants were found present at the railway track, catching hold and pressing Pradeep Kumar and they fled away on seeing informant and the other witnesses. Thereafter, the informant alongwith other witnesses found the dead body with the injuries and the blood oozing out from the mouth and nostrils of the deceased. None of the evidences can, thus, be said to make out or establish a case of murder of Pradeep Kumar Verma by these 3ppellants, The Doctor-P.W.7, who conducted post mortem on 29.2.1992 at 11:15 A.M. has given definite opinion that the time elapsed since death was more than 48 hours. The doctor has also found severe injuries on the head and other parts of the body, but it was not the case of the prosecution that the accused persons who are said to be present at the spot or having any arm with them. The said definite finding of the doctor falsifies the ocular testimony of the said P.Ws. 4, 5 and 6. This evidence also falsifies the claim of their presence at that time and seeing fresh blood coming out from nostrils and mouth of the deceased by them. The said definite finding of the doctor falsifies the ocular testimony of the said P.Ws. 4, 5 and 6. This evidence also falsifies the claim of their presence at that time and seeing fresh blood coming out from nostrils and mouth of the deceased by them. Non examination of Chaukidar Dhanraj Mahto and an independent villager Naresh Mahto who all along said to be accompanied with Govind Mahto-informant and the charge-sheeted witness Shim Mahto also lead adverse inference as to why they were withheld by the prosecution. We find no explanation for the delay of four days placing the F.I.R. before the court. The said unexplained delay certainly creates doubts and there is chance of deliberation 11. Having heard learned counsel for the appellants and the A.P.P. and considered the facts, materials and evidences on record, we find that in this case there is no allegation of giving any assault by any of the accused appellants on the deceased. Even if the entire prosecution case and the evidences are accepted as it is, the only case made out is that these appellants were found present at the railway track, catching hold and pressing Pradeep Kumar and they fled away on seeing informant and the other witnesses. Thereafter, the informant alongwith other witnesses found the dead body with the injuries and the blood oozing out from the mouth and nostrils of the deceased. None of the evidences can, thus, be said to make out or establish a case of murder of Pradeep Kumar Verma by these 3ppe!lants, The Doctor-P.W.7, who conducted post mortem on 29.2.1992 at 11 :15 A.M. has given definite opinion that the time elapsed since death was more than 48 hours. The doctor has also found severe injuries on the head and other parts of the body, but it was not the case of the prosecution that the accused persons who are said to be. present at the spot or having any arm with them. The said definite finding of the doctor falsifies the ocular testimony of the said P.Ws. 4, 5 and 6. This evidence also falsifies the claim of their presence at that time and seeing fresh blood coming out from nostrils and mouth of the deceased by them. present at the spot or having any arm with them. The said definite finding of the doctor falsifies the ocular testimony of the said P.Ws. 4, 5 and 6. This evidence also falsifies the claim of their presence at that time and seeing fresh blood coming out from nostrils and mouth of the deceased by them. Non-examination of Chaukidar Dhanraj Mahto and an independent villager Naresh Mahto who ail along said to be accompanied with Govind Mahto-informant and the charge-sheeted witness Shim Mahto also lead adverse inference as to why they were withheld by the prosecution. We find no explanation for the delay of four days placing the F.I.R. before the court. The said unexplained delay certainly creates doubts and there is chance of deliberation and false implication due to admitted enmity between the prosecution party and the accused appellants. Though in a given case, as submitted by learned A.P.P., the delay may not be of much importance, yet in a case where there is admitted enmity between the parties, it assumes much importance and there is chance of deliberation and false implication. Absence of any explanation .of the delay, thus, creates a doubt which must give the benefit to the appellants. 12. In view of the above discussion and overall assessments of the facts, evidences and materials on record we find no valid ground to support and uphold the impugned judgment of conviction and order of sentence of the appellants. 13. In the result, we allow this criminal appeal. The appellants are acquitted of the charges levelled against them. The impugned judgment of conviction dated 11.6.2002 and the order of sentence dated 12.6.2002 passed against the appellants by Shri Lakshmi Kant Sharma, learned Additional Sessions Judge, F.T.C.-I, Deoghar in Sessions Case No. 250/1994/ 5/2002 are set aside. Since the appellant Nos. 3, 4 and 5 are in custody, they are ordered to be set at liberty forthwith, if not wanted in any other case. The appellant Nos. 1 and 2, who are said to be on bail, are discharged from the liability of their respective bail bonds.