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2015 DIGILAW 409 (JHR)

Kalachand Mahto v. State of Jharkhand

2015-03-25

APARESH KUMAR SINGH, VIRENDER SINGH

body2015
Judgment : Per Virender Singh, C.J. 1. Vide our short order of even date the instant appeal partly stands allowed acquitting appellant-accused Kalachand Mahto of all the charges and converting the conviction of appellant-accused Bhagtu Mahto from Section 302 IPC to Section 304 Part-I IPC. We shall now enter into a detailed judgment. 2. Both the appellant (hereinafter to be referred to as accused only) along with their co-accused Jagdish Mahto were charged for the offence under Section 302/34 IPC and Section 307/34 IPC. Jagdish Mahto, however, died during the trial and the present two accused stand convicted for the aforesaid charge. They have been sentenced to undergo imprisonment for life under Section 302/34 IPC and rigorous imprisonment for five years under Section 307/34 IPC. Both the sentences are ordered to run concurrently. Aggrieved of the said conviction/sentence recorded by the learned trial court, they have preferred the instant appeal. 3. Accused Kalachand Mahto is stated to be on bail as his substantive sentence was suspended by the Court. Accused Bhagtu Mahto is however in custody since the date of his arrest which turns out to be 12 years. 4. The date of occurrence is 3rd of June, 1991 at about 6.30 A.M. and the first informant is PW Niranjan Mahato who alleges that accused Kalachand Mahto was ploughing their land (complainant) upon which his father Ritam Mahato and uncle Shyamlal Mahato (hereinafter to be referred to as 'deceased') tried to stop accused Kalachand Mahto from ploughing the land. In the meantime, accused Bhagtu Mahto and Jagdish Mahto came there and told the complainant side that accused Kalachand Mahto would plough the field as the field belonged to them which resulted into an altercation upon which accused Bhagtu said that they (complainant side) would not understand like this. It is then alleged that both of them (Bhagtu Mahtom and Jagdish Mahto) went to their house and came at the spot with Tangi and lathi and then Bhagtu Mahto said that both should be killed upon which accused Bhagtu Mahto gave a Tangi blow to deceased which hit upon his neck resulting into causing injury to his shoulder and he fell on the ground. It is then alleged that accused Jagdish Mahto caused injury to Ritam Mahato with Tangi, consequently blood started oozing from the injury and he also fell down. It is then alleged that accused Jagdish Mahto caused injury to Ritam Mahato with Tangi, consequently blood started oozing from the injury and he also fell down. It is then alleged that thereafter, PW Niranjan Mahato ran away from the place of occurrence out of fear and told about the occurrence to his mother and Aunty (PWs) and then all went to the place of occurrence with the villagers. It is thereafter the deceased and Ritam Mahto were brought to the police station. 5. The motive of the occurrence as alleged is that land of accused Jagdish was adjacent to the land of the complainant and he used to say that the same belonged to him upon which it was measured and separated also. Still Jagdish Mahto wanted to grab the aforesaid land forcibly. 6. After the investigation of the present case, all the three accused were put to trial and ultimately the present two accused stand convicted and sentenced, Jagdish Mahto having died during the trial. 7. Prosecution, in support of its case, has examined 16 witnesses PW-1 Sushila Devi, PW-2 Shankar Mahato, PW-3 Lalit Mahato, PW-4 Santo Mahato, PW-5 Joti Lal Mahato, PW-6 Khiru Mahato, PW-7 Bhagirath Mahato (eye witness to the occurrence), PW-8 Ritam Mahato (injured witness), PW-9 Ugia Devi, PW-10 Bhola Nath Mahato, PW-11 Dhananjay Mahato (eye witness to the occurrence), PW-12 Niranjan Mahato (eye witness to the occurrence and the first informant), PW-13 Dr. Rai Sudhir Prasad (who conducted autopsy on the dead body of the deceased Shyamlal Mahato and found the injury on the top of right scapula (shoulder blade) which has proved to be fatal), PW-14 Adri Devi (she is also an eye witness to the occurrence and wife of PW Ritam Mahato), PW-15 Jagtoo Mahato and PW-16 Jethu Rajak. 8. The accused have denied the occurrence and produced the following three witnesses in defence : 1. Sukhdev Singh (DW-1) 2. Wangi Napit (DW-2) 3. Lal Mohan Mahato (DW-3) 9. Heard Mr. Mahesh Tewari, learned counsel for both the accused and Mr. Pankaj Kumar, Additional Public Prosecutor representing the State. We have also gone through the evidence. 10. Mr. 8. The accused have denied the occurrence and produced the following three witnesses in defence : 1. Sukhdev Singh (DW-1) 2. Wangi Napit (DW-2) 3. Lal Mohan Mahato (DW-3) 9. Heard Mr. Mahesh Tewari, learned counsel for both the accused and Mr. Pankaj Kumar, Additional Public Prosecutor representing the State. We have also gone through the evidence. 10. Mr. Tewari submitted that if one peruses the evidence available on record minutely, it appears that PW Niranjan Mahto, the first informant, is not the eye witness to the occurrence and nothing happened in his presence and in fact PW Sushila Devi, wife of the deceased was there at the time of occurrence who, when stepped into the witness box, did not whisper a word about the presence of PW Niranjan Mahato. Mr Tewari submitted that she, in her cross examination, has categorically stated that the incident had flared up upon verbal duel. 11. Learned counsel submitted that it has also come in the evidence that the main chunk of land is with the accused side and it is very small portion of land which was in the possession of the complainant side and what appears is that some altercation might have flared up may be on account of ploughing of the land resulting into present occurrence. 12. Learned counsel submitted that even otherwise, the charge of Section 307 IPC is not proved against the accused for want of medical evidence as one does not find any medicolegal report available on record proved by the Doctor who examined PW Ritam Mahato. According to learned counsel, the injury on the person of Ritam Mahto is attributed to accused Jagdish Mahto who died during trial and the part attributed to accused Kalachand Mahto is of ploughing the field and then kept standing when his two co-accused Bhagtu Mahto and Jagdish Mahto were assaulting the deceased and PW Ritam Mahato. 13. Learned counsel submitted that considering the prosecution case in its entirety, it cannot be said by any stretch of imagination that both the accused had shared common intention viz. 13. Learned counsel submitted that considering the prosecution case in its entirety, it cannot be said by any stretch of imagination that both the accused had shared common intention viz. to commit murder of deceased Shyamlal Mahato and it would at the most attract Section 304 Part-I IPC that too qua accused Bhagtu Mahto only who has allegedly caused one injury on the person of the deceased and that there appears to be no evidence against accused Kalachand Mahto to convict him for the substantive offence with the aid of Section 34 IPC. 14. On the strength of aforesaid submissions, learned counsel submitted that conviction of accused Kalachand Mahto for all the charges viz. Section 302/34 IPC and Section 307/34 IPC deserves to be disturbed and he may be acquitted of the same and conviction of accused Bhagtu Mahto may be altered to Section 304 Part-I IPC at the most. 15. Learned counsel then submitted that accused Bhagtu Mahto, by now, has undergone about 12 years of his substantive sentence as he is languishing in jail from the initial date of his arrest and also being an elderly person of the age of 72 years, deserves a lenient view vis-a-vis quantum of his sentence which may be reduced to the period already undergone by him. 16. Per contra, learned State counsel vehemently submitted that it is a case in which accused Bhagtu Mahto along with Jagdish Mahto had gone to their house and assaulted the complainant side. Leaned counsel submitted that in this factual backdrop, common intention of all the accused is writ large. He thus prays for confirmation of the conviction/sentence of both the accused for the charge of Section 302/34 IPC. So far as conviction under Section 307/34 IPC is concerned, learned State counsel fairly admits that there is no evidence worth the name to prove the said charge, therefore, the State is on slippery footing so far as the said charge is concerned. 17. What appears from the initial case set up by the complainant PW Niranjan Mahto is that he projects himself as an eye witness to the occurrence. But what we find from the evidence of PW Sushila Devi (wife of deceased) is that the initial altercation had taken place in her presence only. 17. What appears from the initial case set up by the complainant PW Niranjan Mahto is that he projects himself as an eye witness to the occurrence. But what we find from the evidence of PW Sushila Devi (wife of deceased) is that the initial altercation had taken place in her presence only. She is categoric in stating that her husband who was taking bath came back and stopped Kalachand from ploughing the land and then accused Bhagtu Mahto and Jagdish Mahto reached there whereupon accused Kalachand Mahto stated that Shyamlal Mahto should be killed. According to PW Sushila Devi, it is accused Kalachand Mahto who has been projected as order giver but he did not take part in the actual assault on the deceased. She is categoric in stating in her cross examination that there was a verbal duel and then fight took place. From where PW Niranjan Mahto appears on the scene when the initial altercation took place which attracted accused Bhagtu Mahto and Jagdish Mahto is not known. Who out of two is giving the true picture as to how the occurrence had originated is not clear, rather it becomes doubtful from its inception. 18. We have the evidence of PW Adri Devi also, she is wife of PW Ritam Mahto. When she stepped into the witness box, she was categoric in stating that at about 6.30 A.M. she was plucking grass and saw that accused jagdish Mahto, Bhagtu Mahto and Kalachand Mahto fighting with deceased Shyamlal Mahto and then Jagdish Mahto and Bhagtu Mahto brought Tangi and assaulted the deceased. She rather stated that accused Kalachand gave a lathi blow to the deceased. She is silent about the presence of PW Niranjan Mahto. From this all, what appears to the Court is that a true picture is not being brought forward and PW Niranjan Mahto when gave his initial statement for the purpose of lodging of the report by the concerned police, developed a story of the liking of the complainant. We are conscious of the fact that the police is informed about the occurrence without any waste of time but that does not always give the guarantee of narrating true facts before the police. 19. We are conscious of the fact that the police is informed about the occurrence without any waste of time but that does not always give the guarantee of narrating true facts before the police. 19. After having appreciated the prosecution case from all aspects, it appears to the Court that when both the sides were present in their fields in the early hours of the day, some altercation might have ensued between them, may be on account of ploughing of the field as major chunk of the land was with the accused side and few portion of it with the complainant side, which is hardly one decimal, consequent thereupon, accused Bhagtu Mahto, who was armed with Tangi, caused one blow on the shoulder of the deceased near the neck. Admittedly he has not repeated the assault for the second time. So far as accused Kalachand Mahto is concerned, but for the fact that he was seen ploughing the field, no overt act has been attributed to him. Viewing the present case in this factual backdrop, it would certainly be difficult to hold accused Bhagtu Mahto for the charge of Section 302 IPC substantively, that too with the aid of Section 34 IPC. His conviction for the said charge thus deserves to be disturbed, instead, in our considered view, he deserves to be held guilty for the offence punishable under Section 304 Part-I IPC. Ordered accordingly. 20. So far as accused Kalachand Mahto is concerned, he deserves acquittal for both the charges viz. Section 302/34 IPC as well as Section 307/34 IPC. Ordered accordingly. 21. The appeal on hand stands allowed partly in the aforesaid terms. 22. Admittedly, accused Bhagtu Mahto is languishing in the jail for the last 12 years. He is also of the age of 72 years as stated by learned counsel for the accused and not controverted by learned State counsel. In our considered view, ends of justice would be adequately met if the sentence for the altered charge of Section 304 Part-I IPC is reduced to the period already undergone by him till date. Ordered accordingly. He shall be released from jail forthwith in this case, if not required in any other case. 23. Since accused Kalachand Mahto is already on bail, his substantive sentence having been suspended during the pendency of the appeal, he shall stand discharged of his bail bonds. 24. Ordered accordingly. He shall be released from jail forthwith in this case, if not required in any other case. 23. Since accused Kalachand Mahto is already on bail, his substantive sentence having been suspended during the pendency of the appeal, he shall stand discharged of his bail bonds. 24. The concerned jail authorities shall be informed accordingly. 25. Learned Trial Court shall also be informed of the outcome of the instant appeal. Lower Court Records, in original, shall be remitted to the court concerned.