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2015 DIGILAW 1302 (JHR)

Kolha Mahto v. State of Jharkhand

2015-10-15

RONGON MUKHOPADHYAY, VIRENDER SINGH

body2015
JUDGMENT : Per Virender Singh, C.J. (Oral): Appellant, Kolha Mahto (hereinafter to be referred to as 'accused'), filed the instant appeal through jail, that too, with a huge delay of 2822 days, which was condoned by the Court on 12th August, 2010. One Ms. Samta Singh, Advocate, was appointed as Amicus Curiae to assist the Court on behalf of the accused. When the instant matter was taken up for its final consideration in September, 2015, the Court was informed that Ms. Samta Singh has already stopped coming to the Court; it is how Mr. Yogesh Modi, Advocate, has now been appointed as Amicus Curiae on behalf of the accused. He is stated to be in custody for the last more than sixteen years. Exact period a per Jail Certificate is 16 years and 7 months. 2. The occurrence is of 30th January, 1988. The deceased, in this case, is father of the accused. The first informant is wife of his real brother namely PW-Dukhni Devi. The motive, as projected is the dispute with regard to partition of land owned by the father (deceased) as he had given three shares of his land to his other three sons and kept the fourth share with himself. This was disturbing the accused, who allegedly killed his father with a sharp edged weapon commonly known in village as 'Tangi' He also assaulted PW Dukhni Devi with the same weapon ('Tangi') for which he was charged for the offence punishable under Section 307 IPC also alongwith the main charge of Section 302 I.P.C. and now stands convicted, for both the charges. The sentence slapped upon him is life imprisonment for Section 302 IPC and RI of ten years for Section 307 IPC. 3. At the very outset, Mr. Modi, learned counsel for the appellant, submitted that so far as the main charge of Section 302 I.P.C. is concerned, the prosecution has not been able to prove the said charge as the Doctor, who had conducted autopsy on the dead body of the deceased, did not step into the witness box to prove the Post Mortem Report. He submitted that the case of the prosecution was closed by the order of the Court when the prosecution could not examine all the witnesses despite availing several opportunities. He submitted that the case of the prosecution was closed by the order of the Court when the prosecution could not examine all the witnesses despite availing several opportunities. Learned counsel submitted that death of the deceased being homicidal, according to the learned Trial Court, is proved from the statement of PW Dukhni Devi, the first informant as she has stated on oath that in her presence the accused had killed his father, but, this view is not legally sustainable in the absence of doctor being produced for proving the Post Mortem Report, as such charge of Section 302 I.P.C. fails. 4. Learned counsel further submitted that may be learned Trial Court had closed the evidence by its own order, still in the interest of justice, the doctor, who had conducted the autopsy on the dead body of the deceased could be examined as a Court Witness or even the Public Prosecutor could move an application under Section 311 Cr.P.C. for calling the doctor at least or in the alternative closing the evidence by the Court itself could be assailed in appeal/revision. According to learned counsel, on all these counts, there had been a casual approach, but, the effect now is that the charge of Section 302 I.P.C. fails. 5. Mr. Modi, fairly contended that the aforesaid flaw crept in the prosecution case, no doubt can be said to be a ground for remanding the case back to the learned Trial Court for proving the Post Mortem Report in accordance with law by producing the concerned doctor, but, whether in the present set of circumstances, when the accused has already suffered long incarceration of 16 years would be in the interest of justice, as it is going to further prolong the trial. He submitted that otherwise also, it would amount to filling up the lacuna at this fag end, which could not be permitted. Learned counsel, thus, prayed for acquittal of the accused for the charge of Section 302 I.P.C. 6. In support of his contentions, Mr. Modi has relied upon a case titled Mohd. Hussain Alias Julfikar Ali Versus State (Government of NCT of Delhi), reported in, (2012) 9 SCC 408 , wherein Hon'ble Supreme Court, in paragraph No.41, has held, as under : “41. In support of his contentions, Mr. Modi has relied upon a case titled Mohd. Hussain Alias Julfikar Ali Versus State (Government of NCT of Delhi), reported in, (2012) 9 SCC 408 , wherein Hon'ble Supreme Court, in paragraph No.41, has held, as under : “41. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked.” 7. So far as charge of Section 307 I.P.C. is concerned, Mr. Modi submitted that the said charge is also not proved to the hilt as the doctor, who examined PW Dukhni Devi, has not categorically opined that the injury landed on the person of PW Dukhni Devi was sufficient to cause death in the ordinary course of nature, had the medical aid not provided. He submitted that the injuries on the person of PW Dukhni Devi have been opined to be simple in nature by the doctor. He submitted that the injuries on the person of PW Dukhni Devi have been opined to be simple in nature by the doctor. Thus, out of two injuries, one may be by a sharp edged weapon and possibly by Tangi (simple in nature) and other being lacerated wound on the head (simple in nature) would not prove the charge of Section 307 I.P.C., as such, the said charge also deserves to be diluted to Section 324 I.P.C. 8. We find force in the submissions advanced by Mr. Modi vis-a-vis both the charges. 9. Admittedly, doctor, who conducted autopsy on the dead body of the deceased has not stepped into the witness box, as such charge of Section 302 I.P.C. is not proved. The observation made by learned Trial Court that the death of the deceased was homicidal on account of the statement of P.W.1 - the first informant, who saw the accused causing Tangi blow on the person of the deceased, perhaps, is not the correct approach, and we reject the same. Learned Trial Court should have been cautious enough while closing the prosecution evidence by its own order as by that time, the doctor of autopsy had not stepped into witness box. Learned Public Prosecutor should not have been casual in his approach in not examining the doctor of autopsy at least knowing very well that he was the most important witness. This is the reason that normally in a criminal trial where the death has occurred or the injuries received from the complainant side, usually the practice adopted is that doctor is examined in the start of the trial and thereafter only the other witnesses are examined. In the case on hand, the Public Prosecution, if was unable to trace the original doctor, who had conducted the Post Mortem, the Post Mortem Report prepared by him could have been proved by producing some other doctor who could identify his signatures because the opinion for the cause of death is mostly given while preparing the Post Mortem Report except in few cases where the opinion is dependent upon the further opinion of FSL expert like in the case of poisoning. Any how, the Post Mortem Report, once being not proved in the case on hand, learned Trial Court, in our view, should have decided the case in accordance with law and not by adopting a very casual approach observing that the death being homicidal is proved from the statement of the first informant. 10. Viewed thus, the charge under Section 302 I.P.C., the main charge for which the accused faced the trial is not proved. 11. Having said so, the next question now crops up is, whether the entire case should be remanded to the Trial Court at this stage for affording an opportunity to the prosecution to produce the doctor, when the accused has already suffered protracted trial of long 16 years, the appeal being continuation of trial, or he deserves acquittal for the said charge straightaway when his case has otherwise become matured for releasing him from the jail as he has earned certain remissions as well and that the State is considering such like cases for release. 12. We, after considering all the aspects including the aspect of speedy trial and fair trial of person accused of crime being integral part of Article 21 and the aspect that the people, who seek protection of law do not lose hope in the system and the interest of the society at large is not overlooked, are of the view that at this fag end when the accused has covered his entire sentence for the charge of Section 302 I.P.C., the present case cannot be said to be one, which calls for remand to the Trial Court for retrial of the prosecution case from a particular stage even if by granting concession of release of the accused from jail by suspending his sentence. He, thus, deserves to be acquitted of the charge of Section 302 I.P.C. Ordered accordingly. 13. So far as charge of Section 307 I.P.C. is concerned, we agree with the submissions advanced by Mr. Modi and are also of the view that the prosecution has not been able to prove the said charge in the absence of categorical medical evidence in this regard. Out of the two injuries on the person of PW Dukhni Devi, the only injury which is incised wound is on the back of neck, but ultimately opined to be simple in nature as one finds from the evidence of Dr. Tej Narayan Jha. Out of the two injuries on the person of PW Dukhni Devi, the only injury which is incised wound is on the back of neck, but ultimately opined to be simple in nature as one finds from the evidence of Dr. Tej Narayan Jha. The other injury which is lacerated in nature is by hard and blunt substance. The doctor opined that it can be by brick bat also. 14. Keeping the medical evidence in consideration, the charge of Section 307 IPC deserves to be diluted to Section 324 I.P.C. Ordered accordingly. 15. The accused has been sentenced to 10 years for the charge of Section 307 I.P.C, which we now reduce to 5 years under Section 324 I.P.C. This is just for academic discussion, otherwise, the accused has already suffered 16 years incarceration. 16. The net result is the appeal on hand is partly allowed. The accused is acquitted of the charge of Section 302 I.P.C. and by diluting the charge of Section 307 I.P.C. to Section 324 I.P.C., he is sentenced, as indicated hereinabove, which part he has already undergone by now. 17. Accused Kolha Mahto shall be released from jail, if not required in any other case. Concerned Jail Authority shall be intimated of the judgment without any delay. Copy of the judgment along with the original Trial Court record shall be sent to the Court concerned by the Registry forthwith. 18. We appreciate the assistance rendered by Mr. Yogesh Modi as Amicus Curiae. A sum of Rs.3,500/- (Rupees Three Thousand Five Hundred) shall be disbursed to him by the State.