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2014 DIGILAW 268 (JHR)

Debu Mahto v. State of Jharkhand

2014-02-19

AMITAV K.GUPTA, PRASHANT KUMAR

body2014
JUDGMENT Amitav K. Gupta, J. This appeal is directed against the judgment of conviction dated 28.02.2003 and order of sentence dated 6.3.2003 passed by the learned Addl. Sessions Judge, Fast Track Court-I, Bermo at Tenughat in Sessions Trial Case No. 149 of 1987, whereby the appellants have been convicted for the charges under Section 302 read with 34 of the Indian Penal Code(I.P.C. For short) and sentenced to undergo rigorous imprisonment for life under the aforesaid sections. 2. The case of the prosecution in brief as per the fardbeyan of Rupchandra Mahto (P.W.-3) recorded at Referral hospital, Jaina More on 24.4.1985 is that P.W.-3 along with his uncle Gopi Mahto (since deceased) had gone to take bath in the village pond. After taking bath P.W.-3 was standing on the bank of the pond and Gopi Mahto was washing his slippers when all of sudden appellant no.1 i.e. Debu Mahto came armed with tangi and without any provocation assaulted Gopi Mahto on the head with a tangi due to which Gopi Mahto fell in the water; that the informant wanted to bring out Gopi Mahto from the water upon which appellant no.1 gave life threat and in the meantime appellant no.2 i.e. Swapan Mahto came armed with lathi and brought out Gopi Mahto from the pond with intent to assault Gopi Mahto; that when the informant asked them not to assault then the appellants chased him with intent to assault; that the informant fled and informed Sulochan Mahto, brother of Gopi Mahto regarding the incident. Whereafter Gopi Mahto's brother Sulochan Mahto, his mother and his wife reached the pond where they found Gopi Mahto lying in unconscious state; that appellants fled away with tangi and lathi and sulochan Mahto, Vinod Mahto, Phuleshwar Mahto, Gopal Mahto, Mithan Mahto, Dara Mahto brought the injured Gopi Mahto to the hospital for treatment. 3. On the basis of the fardbeyan Jaridih P.S. Case No.26/85, dated 24.4.1985 was registered under Sections 324/307/34 of the I.P.C. subsequently the injured died in course of treatment whereupon Section 302 of the IPC was added. Cognizance was taken and the case committed to Court of Sessions for trial. 3. On the basis of the fardbeyan Jaridih P.S. Case No.26/85, dated 24.4.1985 was registered under Sections 324/307/34 of the I.P.C. subsequently the injured died in course of treatment whereupon Section 302 of the IPC was added. Cognizance was taken and the case committed to Court of Sessions for trial. The appellants/accused pleaded not guilty and claimed to be tried; that 11 witnesses were examined by prosecution whereafter statement under Sections 313 of Cr.P.C. of the appellants were recorded and on the basis of the evidence of record, the learned Additional Sessions Judge, FTC-I convicted and sentenced the appellants by the impugned judgment. 4. Sri B.M. Tripathi learned senior counsel for the appellants while impugning the judgment has submitted that the Trial Court failed to appreciate the fact that P.W.-3 i.e. the informant has stated that appellant No.1 had assaulted Gopi Mahto (deceased) on the head with the Tangi which is a heavy sharp cutting weapon but the doctor i.e. P.W.-9 who examined Gopi Mahto on the day of occurrence has stated that the injury was caused by hard and blunt substance and gave the age of injuries to be within 48 hours, which shows that the injury of the deceased was not fresh and this falsifies the fact that the alleged occurrence took place on 24.4.1985 and the testimony of P.W.-3 can not be relied upon as he is not an eye witness; that other witnesses examined are hearsay, admittedly there is no eye witness and the learned trial Court has committed error by stating that the testimony of P.W.-3 has been corroborated by the medical evidence and other witnesses adduced by the prosecution. It is argued that there is previous enmity between P.W.3 and the appellants and the trial Court should have considered the testimony of other witnesses for corroboration but the same has not been looked into by the trial Court; that the finding of the trial Court only on the basis of the testimony of the P.W.-3 is not sustainable as it has occasioned failure of justice. That the trial Court has not taken into consideration the fact that the place of occurrence is the village pond which is visited by other co-villagers and without considering this fact the trial Court has given finding on the evidence of P.W.-3 in a mechanical fashion, without any corroboration by independent witnesses and has also not considered the fact that the Investigating Officer has not been examined in the case. It is argued that the occurrence took place on 24.4.1985 and the deceased Gopi Mahto died in course of medical treatment on 29.4.1985. Thus considering the time gap between the actual occurrence and the death of the deceased the trial Court should have held that the no offence under Section 302 of the I.P.C. is made out rather the offence comes within the purview of Section 304 (II) of the I.P.C. i.e. culpable homicide not amounting to murder as there was no intervening circumstances; that the trial Court committed error in law by holding that both the appellants were guilty for the offence under Sections 302 read with 34 of the I.P.C. There is no evidence on record that both the appellants had reached the place of occurrence together neither there is any evidence on record to show that appellant no.2 had given any blow with the lathi on the deceased as such his conviction under Section 302 read with 34 of the I.P.C. is against the weight of evidence of record. It has been urged by the learned senior counsel for the defence that appellant no.1 had no intention to kill the deceased and the only evidence is that he had given a single blow which if presumed to be true for argument sake then the only intention that appellant no.1 had was to cause injury on the deceased and not to kill him. Accordingly, the judgment and conviction under Section 302 of the I.P.C. is not in consonance with the material on record and there is no material evidence to fasten the guilt under Section 302 read with 34 of the I.P.C. against the appellant no.2. hence, the said impugned judgment and conviction is fit to be set aside. 5. Accordingly, the judgment and conviction under Section 302 of the I.P.C. is not in consonance with the material on record and there is no material evidence to fasten the guilt under Section 302 read with 34 of the I.P.C. against the appellant no.2. hence, the said impugned judgment and conviction is fit to be set aside. 5. Learned counsel for the State has argued that P.W.-3 i.e. Rupchandra Mahto testimony has remained intact and he has supported the fardbeyan as recorded by the Police in the Court which has also been corroborated by P.W.-4, P.W.-5 and P.W.-7. It is also stated that P.W.-9 i.e. Doctor who had examined the injuries of the deceased on 24.4.1985 had found the injuries and the injury report i.e. Ext.-2 corroborates the testimony of P.W.-3; that P.W.10 i.e. Dr. D.K.Dhiraj has proved the post-mortem report (Ext. -3) the post-mortem corroborates the injury sustained as per testimony of P.W. -3. 6. Having heard the submission advanced by the learned counsels, it is necessary to examine the testimony and evidence of record to analyse whether the impugned judgment sustainable on the anvil of evidence on record or not. 7. As per the FIR, P.W.-3 happens to be the only eye witness in the present case and he has supported his ferdbeyan as recorded by the Police. In his testimony he has stated that on the day of occurrence he along with Gopi Mahto (deceased) had gone to take bath in the pond and after taking bath while he was standing on the bank of the pond appellant no.1 Debu Mahto came armed with the Kulhari (Axe) and delivered a blow of Kulhari on the head of Gopi Mahto, who was washing his slippers; that due to the assault of Kulhari Gopi Mahto fell in the water and when P.W.-3 wanted to take out Gopi Mhato, appellant no.1 give life threats; that appellant no.2 Swapan Mahto came there and brought out Gopi Mahto from the water thereafter appellant no.1 again threatened P.W. -3 whereupon he fled away and came to the house of Gopi Mahto and informed his brother Sulochan Mahto, P.W.-5 and P.W.-1 Meera Kumari sister of the deceased and P.W.2 Jaleshar Devi, mother of the deceased. P.W.-1 and P.W.2 have been tendered by the prosecution. P.W.-1 and P.W.2 have been tendered by the prosecution. However, P.W.5 has stated that P.W.-3 had come and told him that the appellant no.1 and 2 had assaulted his brother (deceased Gopi Mahto) with kulhari and as a result his brother Gopi Mahto had fallen in the water; that he along with P.W.-1 and P.W.-2 had gone and seen Gopi Mahto in unconscious state with injuries on his arms, hands and leg. They had brought him home and taken him on the cot first to Jaridih police station and from where they were sent to the Jaridih hospital; that from Jaridih hospital they have gone to the Bokaro hospital where Gopi Mahto died in course of treatment. P.W.-8 has also stated that the inquest report was prepared in Bokaro hospital. P.W.-4 has stated that he had seen the deceased in injured condition at the place of occurrence which is the pond whereafter the Gopi Mahto was taken to the hospital. In cross examination he has stated that the injured was at first taken to Jaridih police station and from there to the hospital. 8. The contention of the learned senior counsel that P.W.-5 is hearsay witness and his evidence cannot be relied upon is rather misplaced because the said witness has stated that P.W.-3 had come and informed him about the occurrence whereupon he along with P.Ws.-1 and 2 had gone there and seen his brother with injuries lying at the pond. The provision of section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible provided that statement sought to be admitted must be contemporaneous with the acts and there should not be an interval which would allow fabrication the essence of doctrine of res-gestae is that a fact which though not in issue, is so connected with the fact in issue as to form part of the same transaction that it becomes relevant itself as held by the Apex Court in Sukhar Vs. State of U.P. (1999)9, SCC 507. From the evidence on record it is apparent that P.W.-5 has stated that P.W.-3 had come and informed him about the assault on Gopi Mahto by the appellants whereupon he had immediately gone there and seen Gopi Mahto with injuries. Thus he is a res-gestae witness and he has corroborated the testimony of P.W.-3. 9. From the evidence on record it is apparent that P.W.-5 has stated that P.W.-3 had come and informed him about the assault on Gopi Mahto by the appellants whereupon he had immediately gone there and seen Gopi Mahto with injuries. Thus he is a res-gestae witness and he has corroborated the testimony of P.W.-3. 9. Doctor M.L.Dokania P.W.-9, who examined the deceased on same day found fracture of right collese, fracture of left humerus, fracture of left collese, fracture of both tibia and fibula left side. He has also found lacerated injuries on scalp 2”x1/2” x skull deep. 10. The argument of the learned senior counsel that in case of assault by tangi there should be incised wound but P.W.-9 did not find sharp cut injury rather he found lacerated injuries thus this lends credence to the fact that P.W.-3 has not witnessed the occurrence is not acceptable because the evidence of P.W.-3 on the point of assault has remained intact during cross-examination and no vital contradiction has been brought forth to disbelieve the testimony of P.W.-3. Though statement under Section 313 Cr.P.C. is not a substantiative evidence, however, when the opportunity is given to the accused to explain the circumstances he has a right to remain silent/or give his version and in the present case appellant no.1 denied assault but he has not denied his presence at the place of occurrence. The absence of incised wound does not discredit the testimony of P.W.-3 who had specifically stated that appellant no.1 had delivered a Kulhari blow on the head of Gopi Mahto and the injury on the head has been found as discussed above by P.W.-9 i.e. doctor who found lacerated injuries which was skull deep which corroborates the assault and in the absence of any explanation to the contrary the inference can be drawn and presumed that the appellant no.1 armed with Kulhari must have assaulted the deceased causing multiple injuries on the deceased in the time gap before the arrival of witnesses on information of P.W.-3. 11. 11. The contention of the learned senior counsel that the non-examination of Investigating Officer has prejudiced the defence is without any basis as no material contradiction has been elicited in cross-examination of P.Ws 3 & 5 prosecution witnesses wherefrom it could be said that I.O.'s production was essentially required to give an opportunity to the defence to cross-examine him with reference to statements recorded by him under Section 161 Cr.P.C. or any steps taken by him during investigation whereby defence was prejudiced due to non examination of the Investigating Officer. In fact if the Investigating Officer was examined then the case of the prosecution, would have been further fortified and it is settled law that every case has to be appreciated on its own fact and in the light of evidence led by the parties and the Court has to examine the cumulative effect of the evidence to determine whether the prosecution has been able to prove its case beyond all reasonable doubts and in the present case it is evident from the testimony of the witnesses that the testimony of P.W.-3 regarding assault on the deceased by the appellant No.1 has remained unshaken. It has been held by the Apex Court in State of Karnataka Vs. Bhaskar Kushali Kotharka & others, (2004)7 SCC, 487 that non-examination of I.O. would be of no consequence when accused were not prejudiced. Learned senior counsel for the appellant has also argued that the deceased died after five days of the occurrence which shows that the appellant no.1 did not have the intention to kill the deceased rather the intention was to cause injury and the deceased died after such a time gap is a factor which shows that the offence comes within the proviso of Section 304 (II). In this connection it is necessary to state that no material has been brought forth to show that the act of the appellant falls within the 5 exceptions as enumerated under Section 300 of the IPC to show that the case falls within the purview of culpable homicide not amounting to murder. P.W.-10 the Doctor, who conducted post-mortem on the dead body of deceased Gopi Mahto found abrasion, fracture of both bones of the leg, fracture of left arm bone and of the forearm bone above the wrist there was fracture of both forearm bones above the wrist of the right forearm . P.W.-10 the Doctor, who conducted post-mortem on the dead body of deceased Gopi Mahto found abrasion, fracture of both bones of the leg, fracture of left arm bone and of the forearm bone above the wrist there was fracture of both forearm bones above the wrist of the right forearm . Brain was in a stage of decomposition. P.W.-9, the Doctor who initially examined injured Gopi Mahto(since deceased) had also found fracture as noted in the post-mortem report and also lacerated injuries on scalp 2”x1/2”x Skull deep. P.W.-10 opined that death resulted from shock due to the injuries sustained by the deceased. It is evident that the bodily injury inflicted by the assault was found to be sufficient to cause death thus the mens-rea required for liability u/s 302 as per clause IIIrdly of Section 300 IPC is satisfied. Consequently the contention of the learned counsel does not hold good. Accordingly, it is held that the appellant no.1 had assaulted the deceased with the intention to cause the injury resulting in his death. 12. So far as appellant no.2 is concerned though the learned Court in the judgment has stated that “it is apparent that Swapan Mahto had reached there armed with lathi but he was stopped by informant P.W.-3, otherwise he would have inflicted injuries on the deceased” is not in consonance with the testimony of P.W.-3. It is evident from the testimony of P.W.-3 (as discussed above) who stated that appellant no.1 had assaulted Gopi Mahto (deceased) with Kulhari and when P.W.-3 tried to lift Gopi Mahto then appellant no.1 threatened him; that Swapan Mahto came there and brought out Gopi Mahto from water whereafter appellant no.1 again threatened P.W.-3 who ran away. Thus it is apparent from testimony of P.W.-3 that appellant no.2 had accompanied appellant no.1 or was armed with any weapon rather he had merely taken out the deceased from the water. There is no evidence that appellant no.2 had threatened the informant nor uttered any word or indulged in any overt act. Thus it is apparent from testimony of P.W.-3 that appellant no.2 had accompanied appellant no.1 or was armed with any weapon rather he had merely taken out the deceased from the water. There is no evidence that appellant no.2 had threatened the informant nor uttered any word or indulged in any overt act. It is settled principle that for invoking liability u/s 34 IPC of an accused the prosecution has to establish that the criminal act was committed in concert pursuant to a pre arranged plan meaning thereby Section 34 embodies a rule of evidence encompassing distinctive feature consisting of element of participation with common intention animating accused to do a criminal act in furtherance of common intention. It is true that direct evidence on formation of common intention may not be forthcoming but the circumstances must spell meeting of minds. In the instant case it is apparent from testimony of P.W.-3 that appellant no.2 had not accompanied appellant no.1 to the scene of crime rather he came afterwards. As per P.W.-3 appellant no.2 was not armed with any weapon, neither did he threaten P.W.-3 with dire consequences or indulged in any overt act. He merely lifted Gopi Mahto from the water. It is settled principle that mere presence of the offender at the scene of crime without any participation to facilitate the offence is not enough to hold him liable under Section 34 of the IPC. In such a case the evidence is required to be weighed with caution and only when inference of common intention is definite then a finding can be given. However as per the testimony on record there is no positive evidence to show that appellant no.2 had a common intention of assaulting the deceased along with appellant no.1. Thus in the circumstances he is entitled to the benefit of reasonable doubt which accrues to appellant no.2 13. In view of the discussion made above and evidence on record this Court finds that the prosecution has not been able to establish the charge under Section 302 read with 34 of the I.P.C. against appellant no.2 i.e. Swapan Mahto for causing the death of deceased Gopi Mahto by sharing the common intention with appellant no.1. Accordingly, the order of conviction and sentence, against appellant no.2, awarded by the Court below is set aside and he is acquitted from the charges. Accordingly, the order of conviction and sentence, against appellant no.2, awarded by the Court below is set aside and he is acquitted from the charges. The appellant no.2 is on bail accordingly he is discharged of the liabilities of the bail bonds. 14. In view of the discussion made above and the evidence on record this Court does not find any cogent reason to interfere with the judgment of conviction and order of sentence passed against appellant no.1, Debu Mahto, of the learned Addl. Sessions Judge, Fast Track Court-I, Bermo at Tenughat and the same is hereby affirmed . The appeal stands partly allowed with respect to appellant no.2, Swapan Mahto and dismissed with respect to appellant no.1, i.e. Debu Mahto.