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2010 DIGILAW 376 (JHR)

Hemlal Mahto v. State of Bihar, now Jharkhand

2010-03-26

J.C.S.RAWAT, JAYA ROY

body2010
JUDGMENT Jaya Roy, J.- The appellants have preferred this appeal against the judgment dated 1.5.1992 passed by 3rd Additional Sessions Judge, Hazaribagh in S.T. No. 28 of 1985 whereby the appellants have been convicted under Section 302/34 I.P.C. and Section 323 of the I.P.C. and sentenced to undergo R.I. for life for the offence under Section 302/34 of the Indian Penal Code and no separate sentence has been passed under Section 323 of the Indian Penal Code. 2. The prosecution case, in brief, is that the informant Pati Sao (P.W. 5) alongwith his brother Khirodhar Sao (deceased) and brother-in-law Kaila Sao (PW. 4) at about 7.00 A.M. on 15.6.1982, went to plough the field popularly known as Katash Tam belonging to Kaila Sao. When they ploughed a small portion of the field then all the aforesaid accused persons alongwith the wife of Jitan Mahto and two wives of accused Jugeshwar Mahto and the wife and the daughter of accused Hemlal Mahto, all having lathi and danda in their hands arrived there at the field in question and they protested against the ploughing of the land. There was exchange of hot words followed by assault and infliction of injuries on Khirodhar Sao (deceased) Pati Sao (P.W. 5), Kaila Sao (P.W. 4) Jamni Devi (P.W. 2) who is wife of P.W. 5, Somri Devi, (P.W. 1) wife of Khirodhar Sao and Tetari Devi (P.W. 3) wife of P.W. 4 by the accused persons. The accused Hemlal Mahto instigated and assaulted P.W. 5 on his hands and left leg. The accused Jugeshwar Mahto inflicted lathi blow on the head and left hand of Khirodhar Sao and after he fell down, the accused Horil Mahto and Jugeshwar Mahto jumped over his chest and stomach and pressed the same with their feet. The accused Mahadeo Mahto showered lathi blows on P.W. 4. The accused persons also assaulted P.Ws. 1, 2 and 3 who had arrived at the place of occurrence on hearing hue and cry. The injured persons were taken to Barhi State Dispensary where they were examined by the Doctor M.P. Sinha (P.W. 7). In view of the gravity and seriousness of injuries on Khirodhar Sao, he was referred to Hazaribagh Sadar Hospital but unfortunately he succumbed to his injuries on the way. The incident was said to have taken place in sequel to land dispute. 3. In view of the gravity and seriousness of injuries on Khirodhar Sao, he was referred to Hazaribagh Sadar Hospital but unfortunately he succumbed to his injuries on the way. The incident was said to have taken place in sequel to land dispute. 3. The prosecution has examined eight witnesses to prove its case. P.Ws. 1, 2, 3, 4 and 5 are relative of the deceased who are alleged to be eye witnesses of the occurrence, besides the Doctor M.P. Sinha (P.W. 7) who has examined the injured persons and Doctor N.K. Verma (P.W. 6) who held autopsy on the dead body of the deceased and P.W. 8 Nasiruddin Khan a formal witness who has proved the F.I.R. (Ext.-3). 4. The defence was of total denial and false implication. The specific defence as gathered from the trends of cross-examination of the prosecution witnesses was that the land in question was not in possession of the prosecution party rather it was in possession of the accused persons and the prosecution party wanted to take forcible possession of the same. The accused entered into defence and. examined the defence witness named Yadunandan Prasad (D.W.1) who proved a sale deed (Ext.-B). Beside Exhibit-B, certain other documents were also brought on record by the accused persons i.e. Ext.-C, the F.I.R. of the counter case filed by the accused persons. In their statement under Section 313 of Cr.P.C. the accused simply denied the occurrence. 5. Now it has to be seen whether the charges leveled against the accused-appellants have been proved by the prosecution beyond all shadows of reasonable doubts. 6. Mr. Chhabra the learned counsel appearing for the appellants submited that the prosecution examined five witnesses P.Ws. 1 to 5 who are alleged to be the eye witness to the occurrence. He has pointed out that P.W. 5, the informant ha§ very specifically stated in para-28 of his evidence that after the assault on hulla, the ladies of his house namely Somri Devi P.W. 1, Jhamni Devi P.W. 2 and Tetri Devi P.W. 3 reached to the place of occurrence. The said statement has been supported by the evidence of P.W. 4 Kaila Sao who has stated in para-6 of his evidence that ladies of their house reached at the place of occurrence after the assault and thereafter lady members of the accused parties assaulted the lady members of their family. The said statement has been supported by the evidence of P.W. 4 Kaila Sao who has stated in para-6 of his evidence that ladies of their house reached at the place of occurrence after the assault and thereafter lady members of the accused parties assaulted the lady members of their family. Thus, it is very clear that the said three witnesses i.e. P.Ws. 1, 2 and 3 have not seen the actual occurrence. Mr. Chhabra has further submitted that P.W. 1 Somri Devi has also stated in her evidence that on hearing hulla she went to the place of occurrence. She further stated that the place of occurrence is at the distance of one mile from her house. Thus, it is very obvious that all these three witnesses have not seen the actual occurrence. Therefore, P.Ws. 4 and 5 are the only witness of the alleged occurrence. 7. It is well settled that relationship of the witnesses cannot be the sole basis to disbelieve the evidence if it is otherwise found to be believable and trustworthy. Therefore, the court should be very careful in weighing the evidence of such witnesses. In law, what is expected is to analyze and scrutinize the evidence with due care and caution before accepting or acting upon the same. In the present case according to the prosecution P.Ws. 4 and 5 are most interested witness and they are also related to the deceased as P.W. 4 is brother-in-law and P.W. 5 is brother of the deceased. 8. On scrutinizing the evidence of these two witnesses., I find that P.W. 5 who is the informant, has stated in the F.I.R. that on the date of occurrence he alongwith Khirodhar Sao and Kali Sao went to plough their lands i.e. lands in question and when they started ploughing, the accused persons reached there and objected them. He has further stated that Hemlal Mahto (appellant, no. 1) assaulted him on his leg and left hand. Jugeshwar Mahto assaulted his brother Khirodhar Sao on his head and left hand by lathi as a result of which he fell down. Thereafter, Jugeshwar Mahto and Horil Mahto jumped over his chest and pressed the same by their feet. But P.W. 5 in his evidence has stated that Horil Mahto and Jugeshwar Mahto assaulted Khirodhar on his head and left hand due to which his hand was fractured. Mr. Thereafter, Jugeshwar Mahto and Horil Mahto jumped over his chest and pressed the same by their feet. But P.W. 5 in his evidence has stated that Horil Mahto and Jugeshwar Mahto assaulted Khirodhar on his head and left hand due to which his hand was fractured. Mr. Chhabra has further pointed out that the other eye witnesses of the occurrence .i.e. P.W. 4 has stated in his evidence that Jugeshwar and Mahadeo assaulted Khirodhar on his hand and leg by lathi, as a result of which he fell down and thereafter Jugeshwar Mahto and Mahadeo Mahto jumped over his chest and pressed the same by their feet. Thus, both the eye witnesses have contradicted each of them regarding the manner of the occurrence. Though the name of Jugeshwar Mahto is mentioned by both the witnesses but regarding Horil Mahto and Mahadeo Mahto it is difficult to say as to who, amongst them, has assaulted Khirodhar, the deceased. 9. Thus, the two eye witnesses i.e. P.W. 4 and P.W. 5 have contradicted each other not only regarding the manner of the occurrence but also in the name of the persons, who assaulted the victim Khirodhar as a result of which he died. Moreover, the evidence of P.W. 4 further shows that when Khirodhar fell down, Jugeshwar and Mahadeo jumped over his chest and stomach and pressed the same by their feet. The medical evidence does not support these statements of the PW. 4. Therefore, it is difficult to say that the P.Ws. 4 and 5 are at all trustworthy or reliable to convict the appellants. 10. Counsel for the appellants submitted that though the accused persons have simply denied the occurrence in their statements under Section 313 Cr.P.C. but it has come from the evidence of the prosecution witnesses that the land in question was in possession of the accused persons and for that the informant party have filed a case under Section 144 Cr.P.C. and the order passed in the said case was in favour of the accused persons. Furthermore, P.W. 4 Kaila Sao has stated in his evidence that they have sold the land only for the reason that the accused, persons did not allow them to take possession over the land in question. Therefore, it is also very clear that the land in question is in possession of the accused appellants. Furthermore, P.W. 4 Kaila Sao has stated in his evidence that they have sold the land only for the reason that the accused, persons did not allow them to take possession over the land in question. Therefore, it is also very clear that the land in question is in possession of the accused appellants. Now the question comes whether the aforesaid Marpit has taken place only when the informant party came to plough the said lands of the accused appellants. It is the admitted fact that the informant party went to plough the aforesaid land and as soon as they started ploughing, the accused appellants reached there and objected them. Mr. Chhabra has further contended that the accused appellants have also filed a counter case and the F.I.R. of the said counter case is Ext.-B. From the content of the said F.I.R., it transpires that the accused appellants have also received injuries caused by sharp cutting weapon and also by hard and blunt substance. He has further drawn our attention to the evidence of the Doctor P.W. 7 who has examined on the same day Gunjary Devi wife of Hemlal Mahto (appellant no. 1) Jugeshwar Mahto (appellant no. 2) and Horil Mahto (appellant no. 3). The evidence of P.W. 7 the Doctor clearly shows that Jugeshwar Mahto and Horil Mahto both have received cut injury on their head caused by sharp instrument but fortunately the injuries were simple in nature. But it is surprising that P.Ws. 4 and 5 who are the eye witnesses have totally denied about the said injuries sustained by the accused appellants and the prosecution has also failed to explain the said injuries on the accused persons which goes to prove that the prosecution party has not come before the court with clean hands and they have suppressed the actual manner of the occurrence. 11. Lastly Mr. Chhabra has contended that the defence has filed a sale deed dated 28.11.1968 i.e. Ext.-B which has also been proved by the defence. D.W. 1, which shows that the accused appellants have purchased the land in question from the original owner namely Mathura Sao and possession of the said land was handed over to the accused persons. 12. Lastly Mr. Chhabra has contended that the defence has filed a sale deed dated 28.11.1968 i.e. Ext.-B which has also been proved by the defence. D.W. 1, which shows that the accused appellants have purchased the land in question from the original owner namely Mathura Sao and possession of the said land was handed over to the accused persons. 12. The learned counsel appearing for the State has contended that the trial court on proper appreciation of the materials on record has convicted the appellants and it does not call for any interference and grievance now sought to be made out is not well merited and appeal has no substance whatsoever. 13. On considering the entire evidence of the witnesses and materials on record it can be said that there was long standing dispute between the accused party and the informant party over a part of the land and the alleged murder was sought to be proved by the eye witnesses who are found to be totally unreliable. 14. In view of the above discussions, we are of the view that the prosecution has failed to prove its case beyond all reasonable doubts. The trial court has erred in holding the appellants guilty under Sections 302/34 and 323 of the I.P.C. We, therefore, allow the appeal and set aside the judgment of conviction and order of sentence recorded by the trial court. As the appellants are on bail, the appellants are discharged from their liabilities of the bail bonds. They need not surrender.