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2016 DIGILAW 721 (CAL)

Haradhan Mahato v. State of West Bengal

2016-09-15

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2016
JUDGMENT : Debasish Kar Gupta, J. : 1. These appeals are directed against the judgment, order of conviction of the appellants dated January 30, 2004 and sentence dated January 31, 2004 passed by the learned Additional Sessions Judge, 1st Court, Purulia in Sessions Trial No.44 of 1996 arising out of Session Case No.50 of 1996. 2. One Nil Kamal Mahato (PW 1) son of late Chamak Mahato of village-Chatumadar, Police Station-Hura, District-Purulia submitted a written complaint dated June 29, 1994 at 08.25 hours in Hura Police Station, District-Purulia, that at about 07.00 hours on the aforesaid day PW 1 with his father Chamak Mahato (since deceased), his mother Jhabe Mahato (since deceased), his elder brother Khudiram Mahato were ploughing the field with buffaloes located at eastern side of Chatumadar at Kadam Bahal, Police Station-Hura, District-Purulia. The appellants and one Dibakar Mahato (since deceased) came there and directed them to vacate the above field. They disagreed. Then the appellants and the aforesaid Dibakar Mahato (since deceased) attacked them with arms, namely, tangi (a kind of axe), tabla (sickle-shaped weapon), gaji kurul (a kind of axe), bhojali (dagger), dowli (a sickle-shaped cutting weapon) etc. The appellants and the aforesaid Dibakar Mahato (since deceased) committed murder of the aforesaid Chamak Mahato and the above Jhabe Mahato. They also assaulted Khudiram Mahato, the elder brother of the PW 1 on his head as also on his back side with the help of axe. His aforesaid elder brother (PW 16) was limping. Then PW 1 was assaulted on his back and thigh. As appellant Haradhan Mahato assaulted PW 1 with the help of a “tangi” he moved away from the field and witnessed the entire aforesaid incident standing on the “Aal” (a ridge of earth set up around a piece of the agricultural land in question). Hearing his hue and cry, Kamal Mahato (PW 15), Narayan Mahato (PW 4) rushed to the place of occurrence. The father of the PW 1, Chamak Mahato and his mother Jhabe Mahato were found dead. 3. PW 1 reported the incident to the Hura Police Station, District-Purulia, filing the above written complaint in presence of PW 3 and PW 6. PW 16 was removed to Chatumore Public Health Center. Thereafter, he was taken to Hura police station in injured condition in an ambassador car and then he was removed to Bankura Sammelani Medical College and Hospital for treatment. PW 16 was removed to Chatumore Public Health Center. Thereafter, he was taken to Hura police station in injured condition in an ambassador car and then he was removed to Bankura Sammelani Medical College and Hospital for treatment. According to the written complaint there was a dispute over the ownership of the aforesaid land in question. It was revealed from the above written complaint that a settlement in between the Chamak Mahato and the appellants was under process which was the reason of commission of murder of the aforesaid two deceased persons by the appellants. 4. A formal FIR bearing Hura P.S. Case No.19/94 was drawn on June 29, 1994 at 08.25 hours. The Officer-in-Charge of the Hura Police Station, District-Purulia (PW 17) took up the case for investigation. He reached the place of occurrence at 09.35 hours on June 29, 1994. He conducted inquest examinations over the dead bodies of Chamak Mahato and Jhabe Mahato at 09.45 hours and 10.15 hours respectively on the above date. Thereafter, he sent the aforesaid dead bodies to Purulia Sadar Hospital Morgue for post mortem examination by challan through constables Hrishikesh Samanta (PW 11) and Satya Narayan Singh (PW 12). He also prepared rough sketch map with index of the place of occurrence. In course of investigation, PW 17 recorded the statements of PW 2, PW 4, PW 6 and Nishakar Paramanik under Section 161 of the Cr.P.C. on the above date. In course of investigation, PW 17 seized a spade with wooden butt (handle), one plough fitted with iron place (faal), yoke, blood stained earth, controlled earth at Kadam Bahal under Hura Police Station, District-Purulia. 5. Post mortem over the dead body of Chamak Mahato was conducted by PW 8. Following injuries were found on the above dead body:- (i) One sharp cut injury on the occipital bone, brain matter was exposed. (ii) Injury on the dorsum of the right palm. Bone was exposed, 2nd meta-corpal bone was cut. 6. According to the opinion of the aforesaid autopsy surgeon the cause of death was due to head injury which was antemortem and homicidal in nature. 7. The post mortem examination over the dead body of Jhabe Mahato was also conducted by PW 8. According to the post mortem examination, the following injuries were detected on her dead body:- 1. A sharp cut injury on occipital bone. Brain was exposed. 2. 7. The post mortem examination over the dead body of Jhabe Mahato was also conducted by PW 8. According to the post mortem examination, the following injuries were detected on her dead body:- 1. A sharp cut injury on occipital bone. Brain was exposed. 2. (a) Sharp cut injury back of right side 2”. (b) Sharp cut injury below the previous injury 2”. (c) Sharp cut injury below the above injuries 4” in dimension. All those injuries of the back injured the lung. 3. Fractured on 6th, 7th and 8th ribs. 4. Small skindeep injury on the left outer angle of the eye. 8. According to the opinion of the above autopsy surgeon (PW 8) the cause of death was due to severe head injury as well as injury to the right lung which was antemortem and homicidal in nature. 9. The appellants were arrested in connection with the above case. PW 17 conducted search in the house of Dibakar Mahato (since deceased) and seized the following weapons (i) a tabla with wooden butt, (ii) a tangi with bamboo butt, (iii) one small axe with wooden butt, (iv) one middle size axe with wooden butt, (v) one big axe with wooden butt and (vi) one ‘dauli’ under seizure list. 10. Charge sheet No.22/95 was filed against the Dibakar Mahato (since deceased) and the appellants on March 30, 1995 for commission of offence punishable under Sections 326/307/302/34 of the I.P.C. 11. Charge was framed against the Dibakar Mahato (since deceased) and the appellant on May 20, 1999 for commission of offence punishable under Sections 148, 302 read with Section 149, 307 read with Section 149 and 323 read with Section 149 of the I.P.C. 12. Seventeen (17) prosecution witnesses were examined. Accused Dibakar Mahato expired during the trial. The statements of the appellants were recorded under Section 313 of the Cr.P.C. 13. After considering the evidence on record, both oral and documentary the impugned judgment, order of conviction and sentence were passed. 14. It is submitted by Mr. Mainak Bakshi, learned Counsel appearing on behalf of the appellants that there was error in the decision making process of the learned trial Court in the impugned judgment. According to him, the appellants went to the field in question for ploughing the filed having their right and title over the same. 14. It is submitted by Mr. Mainak Bakshi, learned Counsel appearing on behalf of the appellants that there was error in the decision making process of the learned trial Court in the impugned judgment. According to him, the appellants went to the field in question for ploughing the filed having their right and title over the same. It is not a case of unlawful assembly at the place of occurrence under Section 149 read with Section 141 of the I.P.C. It is submitted by him that there was a free fighting in between the appellant and the victims. As a consequence they used articles which they were carrying for ploughing the field for the purpose of self defence. Drawing our attention towards the evidence of the natural witness PW 15 as also that of the investigating officer (PW 20), it is submitted by Mr. Bakshi that there was no intention of killing anybody there and as such there was no commission of offence as provided in Section 302 of the I.P.C. It is submitted by him that according to prosecution case the accused were seven in number but six alleged weapons were seized. It is further submitted by him that the statements of the appellant were not recorded adhering to the provisions of Section 313 of the Cr.P.C. giving them necessary caution for recording such statements. 15. Reliance is place by Mr. Bakshi on the decisions of Chikkarange Gowda & Ors. vs. State of Mysore, reported in AIR 1956 SC 731 , Shambhu Nath Singh vs. State of Bihar, reported in AIR 1960 SC 725 , Kanbi Nanji Virji & Ors. vs. The State of Gujarat, reported in AIR 1970 SC 219 , Lalji vs. State of U.P., reported in AIR 1973 SC 2505 , Santosh vs. The State of Madhya Pradesh, reported in AIR 1975 SC 654 , Komma Neelakantha Reddy & Ors. vs. The State of A.P., reported in AIR 1978 SC 1021 , Bhudeo Mandal vs. State of Bihar, reported in AIR 1981 SC 1219 and Kirti Mahato vs. State of Bihar, reported in 1994 SCC (Cri) 1493 in support of his above submissions. 16. It is submitted by Mr. Ranabir Roy Chowdhury, learned State advocate that no material was brought on record by the appellant in support of their claim with regard to their right and title over the land in question. 16. It is submitted by Mr. Ranabir Roy Chowdhury, learned State advocate that no material was brought on record by the appellant in support of their claim with regard to their right and title over the land in question. It appeared from evidence on record that there was a dispute with regard to their right and title over the land in question. It was also not in dispute that the victims had reached the place of occurrence, i.e. the land in question, before the appellants arrived at the place of occurrence. According to him, it was incumbent upon the appellants to bring relevant document, if any, on record on the basis of their special knowledge as prescribed under the provisions of Section 106 of the Indian Evidence Act to claim that they had right and title over the land in question and that there was an incident of free fighting in between the victims and the appellants. 17. Drawing our attention towards the evidence of PW 1, who was one of the eyewitnesses, it is submitted by Mr. Roy Chowdhury that the appellant arrived at the place of occurrence in a group armed with deadly weapons like ‘tangi’, ‘bhojali’, ‘tabla’, ‘axe’, etc. They asked the victims to vacate the land in question. On protest they assaulted Chamak Mahato (since deceased), Jhabe Mahato (since deceased), Khudiram Mahato as also Nil Kamal Mahato with sharp cutting weapons. Our attention is drawn towards the evidence of eyewitnesses PW 1, PW 15, PW 16 in support of his above submissions. 18. It is also submitted by him that taking into consideration the evidence of eyewitness PW 1, the commission of offence by the appellants under Section 302 read with Section 149 of the I.P.C. was proved. According to him, in view of the corroboration of the above evidence by those of PW 16, the injured eyewitness as also PW 15, a natural witness, the commission of above offence by the appellants under Sections 302/307 read with Section 148/149 of the I.P.C. was proved beyond all reasonable doubts. According to Mr. Roy Chowdhury, the incriminating circumstances were put to the appellants while recording their respective statements under Section 313 of the Cr.P.C. 19. According to Mr. Roy Chowdhury, the incriminating circumstances were put to the appellants while recording their respective statements under Section 313 of the Cr.P.C. 19. Reliance is placed on the decisions of State of U.P. vs. Naresh & Ors., reported in 2011 (4) SCC 324 , Sanjeev Kumar Gupta vs. State of U.P., reported in AIR 2015 (SCW) 3151, Ramachandran vs. State of Kerala, reported in 2011 (9) SCC 257 and Nar Singh vs. State of Haryana, reported in 2015 (1) SCC 496 in support of his above submissions. 20. Having heard the learned Counsels appearing for the respective parties and after considering the facts and circumstances of this case we find that the first contention of the appellants is doubt with regard to the unlawful assembly of the appellants in the light of the provision of Section 149 of the I.P.C. Section 149 of the I.P.C. has following two ingredients:- (i) Offence committed by any member of an unlawful assembly consisting of five or more members; and (ii) Such offence must be committed in prosecution of the any object as provided under Section 141 of the I.P.C. of the assembly or members of that assembly knew to be likely to be committed in prosecution of that object. 21. In Masalti vs. State of Uttar Pradesh, reported in 1965 0 AIR(SC) 202, it was observed by the Hon’ble Supreme Court that in a case where the assembly consisted of five or more persons, the crucial question for determination as to whether the said persons entertained one or more of the common objects specified by Section 141 of the I.P.C. was to consider whether the assembly consisted of some persons who were passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of assembly. If the answer is positive, those persons cannot be brought under the scope of common object of their assembly as provided in Section 141 of the I.P.C. 22. In K.M. Ravi & Ors. If the answer is positive, those persons cannot be brought under the scope of common object of their assembly as provided in Section 141 of the I.P.C. 22. In K.M. Ravi & Ors. vs. State of Karnataka, reported in (2009) 16 SCC 337 , it was observed by the Hon’ble Supreme Court that mere presence or association with other members alone was not sufficient to hold every one of them criminally liable for offence committed by the others in absence of sufficient evidence on record to show that each one of them intended to or knew the likelihood of commission of such an offending act. 23. The Hon’ble Supreme Court observed in State of U.P. vs. Krishanpal & Ors., reported in (2008) 16 SCC 73 , that every member of an unlawful assembly is vicariously liable for the acts done by others either in prosecution of common object or members of the assembly provided each of them knew were likely to be committed. 24. In Charan Singh vs. State of U.P., reported in (2004) 4 SCC 205 , the scope of application of Section 149 of the I.P.C. has been discussed as follows:- “13. . . . . The crucial question to determine is whether the assembly consisted of five or more person and whether the said persons entertained one or more of the common objects, as specified in Section 141. . . . The word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all. In other words, the object should be common to the person, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section 149 has to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section 149 has to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter . . . .” (Emphasis supplied) 25. While considering the facts and circumstances of the instant case, we find from the evidence of eyewitness PW 1 that he went to the place of occurrence with Chamak Mahato (his deceased father), Jhabe Mahato (his deceased mother), Khudiram Mahato (his elder brother) for cultivation in their paddy field at about 7 am in the morning on June 29, 1994. The appellants and Dibakar Mahato (since deceased) arrived at the place of occurrence armed with sharp cutting weapons like ‘tangi’, ‘bhojali’, ‘tabla’ (sickle-shaped weapon), ‘gaji kurul’ (a kind of axe), ‘dowli’ (a sickle-shaped cutting weapon). They forbade Chamak Mahato (since deceased) and others to cultivate the aforesaid plot of land. On protest, Chamak Mahato (since deceased) was assaulted by Dibakar Mahato (since deceased) on his head with ‘tangi’. Chamak Mahato breathed his last on the place of occurrence. The above evidence of PW 1 was corroborating with that of his elder brother (PW 16) who was also injured in that incident as also with the evidence of PW 15 who was a natural witness and had been ploughing his field near the place of occurrence. The injuries and the cause of death mentioned in the post mortem report were corroborating with the above evidence. The aforesaid Dibakar Mahato was one of the accused in the trial. He breathed his last on October 17, 2001 during trial. 26. Jhabe Mahato (since deceased) was assaulted by one of the appellants Haradhan Mahato on her head. Thereafter, she (the aforesaid mother of PW 1) was assaulted by two other appellants Bhudu Mahato and Sarala Mahato on her back with the help of axe and ‘bhojali’ respectively. As a result, she breathed her last on the place of occurrence. The above fact was brought on record by virtue of the evidence of PW 1, PW 15 and PW 16. As a result, she breathed her last on the place of occurrence. The above fact was brought on record by virtue of the evidence of PW 1, PW 15 and PW 16. The injuries and the cause of death mentioned in the post mortem report were corroborating the above evidence. 27. Khudiram Mahato (PW 16) was assaulted by two other appellants Naran Mahato and Parachand Mahato on his head and left leg beneath knee. Thereafter, another appellant namely, Arati Mahato assaulted him on his back with ‘dauli’. He was initially removed Chatumadar Hospital. Thereafter, he was brought to the Hura Police Station with the help of PW 15, a natural eyewitness. Ultimately, he was removed to Bankura Sammelani Medical College and Hospital. He was treated there for about one month as an indoor patient. According to the evidence of PW 10, the Medical Officer of the above hospital sustained the following injuries:- (i) One incised wound over right parietal region was found having dimension of 4 c.m. in length X 1 c.m. in breathed. (ii) Injury on left lower thigh which was in dressing condition. The injury report of PW 16 (Ext.-11) contained the preliminary history of assaulting him by the appellants in corroboration of the evidence of PW 1. 29. The above injury report was also in corroboration with his known evidence as also that of natural witness PW 16. According to the evidence of PW 1, he had to proceed with a lamegait. 30. The evidence of PW 1 in this regard was fully corroborating with those of PW 16 (the injured witness), PW 15 (the natural witness) and the injuries mentioned in the post mortem reports of the deceased persons as also the medical report of the PW 16. 31. From the above facts and circumstances it was not in dispute that the appellants and the Dibakar Mahato arrived at the place of occurrence at the material point of time after the arrival of the victims there with aforementioned articles/weapons in their hands in a group. Taking into consideration the aforesaid act as also their further acts in assaulting the victims with the weapons when they (victims) refused to act on their (appellants and Dibakar Mahato) commands, only one conclusion could be reached that they arrived at the place of occurrence in order to attain the common object under reference. Taking into consideration the aforesaid act as also their further acts in assaulting the victims with the weapons when they (victims) refused to act on their (appellants and Dibakar Mahato) commands, only one conclusion could be reached that they arrived at the place of occurrence in order to attain the common object under reference. Therefore, the commission of offence punishable under Section 302/307 read with Section 148 and 149 of the I.P.C. by the appellant with common object was proved beyond any reasonable doubt. 32. We do not find any substance in the submissions made by Mr. Bakshi that the assembly of the appellants were not unlawful or that they merely went there for ploughing their field. No cogent evidence is brought on record by the appellants to show that they had any right or title over the filed where the murders of the aforesaid Chamak Mahato and Jhabe Mahato were committed and assaulting of PW 16 took place. Needless to point out that had their been any right or title of the appellants over the paddy field in question it was within their special knowledge under the provisions of Section 106 of the Indian Evidence Act. They were liable to bring cogent evidence in support of their claim of right or title on record. In absence of any cogent evidence as discussed hereinabove we do not find any substance in the submission of Mr. Bakshi so far as the claim of the appellants of free fighting or self defence was concerned. 33. The Chikkarange Gowda & Ors. (supra) was distinguishable from the instant case. In the above case the Hon’ble Supreme Court took into consideration the individual acts of the appellants separately on the basis of the facts and circumstances of that case. In the matter of Shambhu Nath Singh (supra) the point for consideration was that whether the conviction of the accused Nos.2 to 8 and 14 for the offence under Section 326 read with Section 149 of the I.P.C. could be sustained when no offender was found guilty of the substantive offence under Section 326 of the I.P.C. The Supreme Court arrived at a conclusion that conviction of the aforesaid accused persons for offence under Section 326 read with Section 149 of the I.P.C. had not properly recorded. In Lalji (supra) the distinguishable feature was that there was remonstrance and counter remonstrance which resulted in a fight invoking the facts and circumstances of the instant case. Needless to point out that no evidence was available on record or no material was brought on record to show that any of the appellant sustained injury as a result of remonstrance and counter remonstrance. In the decision of Santosh (supra) the Court expressed its doubt with regard to the guilt of the appellant for his participation in an unlawful assembly. The above fact was distinguishable from the fact of the instant case. In the decision of Komma Neelkantha Reddy & Ors. (supra) the Hon’ble Supreme Court took into consideration the statements of three police witnesses to arrive at a conclusion that nothing in their statements supported the prosecution case to fasten criminal liability to some other accused under Section 149 of the I.P.C. The above fact was distinguishable from the fact of the instant case. In Bhudeo Mandal (supra) the Court arrived at a conclusion that neither any evidence nor any finding that any of the ingredients of Section 149 had been established by the prosecution invoking the facts and circumstances of the instant case. In view of the above none of the above decisions help the appellants. 34. In the matter of Kanbi Nanji Virji (supra) the High Court arrived at a conclusion that the injuries sustained by the persons were in course of a free fighting as a result only those persons who were proved to have caused injuries were held guilty invoking the facts and circumstances of the instant case. So, the above judgment also does no help the appellants in any way. 35. In the matter of Kirti Mahto (supra) the Court took into consideration the nature of injuries from the post mortem certificate that no internal organ was damaged nor was there any fracture in the dead body of the victim. Taking into consideration the nature of injuries the Court arrived at a conclusion that the common object of unlawful assembly was not to commit murder. In the instant case, according to the post mortem reports, Chamak Mahato sustained one sharp cut injury in his occipital bone, brain matter was exposed and Jhabe Mahato sustained a sharp cut injury on occipital bone and brain was exposed. In the instant case, according to the post mortem reports, Chamak Mahato sustained one sharp cut injury in his occipital bone, brain matter was exposed and Jhabe Mahato sustained a sharp cut injury on occipital bone and brain was exposed. Therefore, no relief could be granted to the appellants on the basis of the aforesaid judgment. 36. With regard to the submissions of Mr. Bakshi of non-consideration of the commission of offence under the provisions of Section 304 of the I.P.C., we do not find that the facts and circumstances supported the commission of offence at the instance of the appellants was covered by the exceptions provided in Section 300 of the I.P.C. 37. Regarding the submissions of non-compliance of provisions of Section 313 of the Cr.P.C., we find that the incriminating facts and circumstances were put to the appellants while recording their statements under the above provisions. There is no substance in the submissions that no question was put forward to any one of the appellants with regard to their right or title over the paddy field in question. 38. These appeals are dismissed. 39. Let this judgment together with the Lower Court’s records be sent back to the learned Court below expeditiously. 40. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis. I agree.