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2017 DIGILAW 1234 (JHR)

Teklal Mahto v. State of Jharkhand

2017-07-24

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction and Order of sentence dated 22.07.2006 passed by the learned 6th Additional Sessions Judge, F.T.C., Dhanbad, in S.T No. 310 of 2004/67 of 2005, whereby, the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life and a fine of Rs.500/-, for the said offence. 3. According to the prosecution case, the occurrence had taken place sometimes in the night between 22-23.1.2004. The F.I.R was lodged on the basis of the fardbeyan of Pawan Kumar Mahto, who is the brother of the deceased Haradhan Mahto, who stated that on 22.1.2004, his deceased brother had gone to work in Kankani colliery, but he did not return in the evening. On 23.1.2004 in the morning, the informant was informed by his neighbour, Sunil Kumar Mahato that the dead body of his brother was lying by the side of the pond, whereupon, the informant and the other villagers went there and saw the dead body of the deceased with several injuries. He has stated that few months prior to the occurrence, Haradhan Mahto had caught Teklal Mahto with a girl of his village in objectionable condition whereupon, he had raised alarm where upon, the villagers came and also assaulted him. A Panchayati was also held, in which, a fine of Rs. 2,000/- was imposed upon him. Teklal Mahto and his father, Mani Ram Mahto were aggrieved due to the said fact and they used to threaten to kill Haradhan Mahto. On 22.1.2004, the informant had seen Teklal Mahto near the pond. Alleging that the deceased had been murdered by these accused persons due to the said enmity, the fardbeyan was given, on the basis of which, Gobindpur (Barwada) P.S Case No.22 of 2004, corresponding to G.R No.1212 of 2004, was instituted for the offence under Sections 302/34 of the Indian Penal Code against the accused, Teklal Mahto and his father Mani Ram Mahto and investigation was taken up. After investigation, the police submitted the charge-sheet against accused, Teklal Mahto. 4. After investigation, the police submitted the charge-sheet against accused, Teklal Mahto. 4. After commitment of the case to the Court of Session, charge was framed against the accused, Teklal Mahto for the offence under Section 302 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, ten witnesses were examined on behalf of the prosecution. The Investigating Officer has not been examined in the case. 5. P.W.-10 Pawan Kumar Mahto is the informant and the brother of the deceased. This witness had stated that on 22.1.2004, his brother, Haradhan Mahto had gone to work in Kankani colliery, but he did not return back. On the next day morning Sunil Mahato informed him that the dead body was lying by the side of a pond, whereupon, this witness and other villagers went to the place of occurrence and found the dead body with injuries thereon. He has stated that prior to the occurrence, Haradhan Mahto had caught Teklal Mahto with a girl of his village in objectionable condition and had raised alarm where upon, there was a Panchayati in which, Teklal Mahto was imposed a fine Rs.2,000/-. Teklal Mahto and his father Mani Ram Mahto were aggrieved due to the said fact and they used to threaten to kill Haradhan Mahto. This witness had stated that on 22.1.2004, he had seen Teklal Mahto near the pond. He has stated that his statement was recorded by the police, on which, he had put his signature, which on his identification was marked Exhibit-2/1. Though this witness was put to extensive cross-examination but there is nothing of much importance on his cross-examination. 6. P.W.-1 Sunil Kumar Mahto, P.W.-2 Chola Ram Mahto, P.W.-3 Hari Ram Mahli, P.W.-4 Ujar Mahli, P.W.-7 Bhuwan Mahto, P.W.-8 Surji Devi, the mother of the deceased and P.W.-9 Lilu Mahto, have all deposed in the Court that upon getting information, they had gone to the pond and had seen the dead body of the deceased with injuries on his body. They have also stated that the deceased had seen the accused Teklal Mahto with a girl of the village in objectionable condition whereupon the accused, Teklal Mahto was imposed fine by the villagers and due to that enmity, he used to threaten the deceased. They have also stated that the deceased had seen the accused Teklal Mahto with a girl of the village in objectionable condition whereupon the accused, Teklal Mahto was imposed fine by the villagers and due to that enmity, he used to threaten the deceased. None of these witnesses are the eyewitness to the occurrence of murder. P.W.-1 Sunil Kumar Mahto and P.W.-2 Chola Ram Mahto are also the witnesses to the inquest report of the dead body, and they have identified their signatures on the inquest report, which were marked Exhibits 1 & 1/1. P.W.-2 Chola Ram Mahto was also a witness to the fardbeyan and he has also identified his signature on the fardbeyan, which was marked Exhibit-2. 7. P.W.-6 Durga Rai has claimed to be the eye witness to the occurrence, but this witness has only stated that he had only seen the quarrel (mar-peet) between the deceased and the accused persons, Teklal Mahto and Mani Ram Mahto. He has stated that Teklal Mahto was armed with Tangi and Mani Ram Mahto was armed with Lathi. He was also threatened by the accused persons, whereupon, he fled away. On the next day, he heard that Haradhan Mahato had been murdered and he also saw the dead body of the deceased. This witness has identified the accused in the Court. In his cross-examination, this witness has admitted that he had not given the information to anyone in the village. 8. P.W.-5 Dr. Shailendra Kumar is the Medical Officer, who had conducted the post-mortem examination on the dead body of the deceased and he had found in all, seven incised ante-mortem wounds on the dead body of the deceased and one abrasion, which he has detailed in his evidence. He has also given the other details of the findings in the post-mortem examination and has identified the post-mortem report, to be in his pen and signature, which was marked Exhibit-3. 9. As stated earlier, the Investigating Officer has not been examined in this case. On the basis of the evidence on record, the appellant has been convicted and sentenced for the offence under Section 302 of the Indian Penal Code by the Trial Court below. 10. 9. As stated earlier, the Investigating Officer has not been examined in this case. On the basis of the evidence on record, the appellant has been convicted and sentenced for the offence under Section 302 of the Indian Penal Code by the Trial Court below. 10. Learned counsel for the appellant submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, none of the witnesses, except P.W.-6 Durga Rai is the eyewitness to the occurrence. There is only suspicion against the accused in the evidence of all the other witnesses who have supported the prosecution case. Only P.W.-6 Durga Rai has claimed to be the eyewitness to the occurrence and he has also stated that he had only seen the quarrel between the deceased and the accused persons and thereafter, he had fled away from the place of occurrence. He has not made any specific allegation of assault against any of the accused, though it is alleged that two persons were quarreling with the deceased. This witness has also admitted in his cross-examination that he had not informed any villager in the village about this occurrence. Learned counsel accordingly, submitted that in fact, there is no eyewitness to the occurrence of murder and there is only circumstantial evidence against the appellant, which too, is too weak to secure the conviction of the appellant. Learned counsel accordingly, submitted that it is a fit case, in which, the appellant ought to have been given at least the benefits of doubt. 11. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution has been able to prove the charge against the accused appellant beyond all reasonable doubts. It is submitted that P.Ws-1 to 4 and P.Ws -7 to 10 have all seen the dead body of the deceased and they all had stated about the motive of the occurrence. Though these witnesses are not the eyewitness to the occurrence of murder, but these witnesses have stated that due to the fact that the accused-appellant was caught red-handed with a girl of the village in objectionable condition by the deceased, the accused appellant was threatening the deceased to kill him. P.W.-10 Pawan Kr. Though these witnesses are not the eyewitness to the occurrence of murder, but these witnesses have stated that due to the fact that the accused-appellant was caught red-handed with a girl of the village in objectionable condition by the deceased, the accused appellant was threatening the deceased to kill him. P.W.-10 Pawan Kr. Mahto had also seen the deceased in the village near the pond on the day of occurrence. Subsequently, the dead body of the deceased was found. P.W.-6 Durga Rai is the eyewitness to the occurrence, who has stated that the accused appellant was armed with tangi and quarrel was going on between the accused and the deceased. He was threatened by the accused and he fled away and on the next day, he also saw the dead body of the deceased. It is also submitted that several ante-mortem injuries caused by sharp cutting weapon were found on the dead body of the deceased and as such, the prosecution has been able to prove the charge against the appellant beyond all reasonable doubts. 12. Having heard learned counsels for both sides and upon going through the record, we find that all the witnesses, except P.W.-6 Durga Rai, are not the eyewitness to the occurrence. They had only seen the dead body of the deceased and has raised suspicion against the accused due to the previous occurrence, in which, the accused was allegedly caught with a girl of the village by the deceased, for which, he was also imposed a fine and for that he was having enmity with the deceased. Though P.W.-6 has claimed to be the eyewitness to the occurrence, stating that the deceased was armed with Tangi and he had seen the quarrel going on between the deceased and the accused, but he has not made any specific allegation of assault upon the appellant, as he has alleged that two persons were quarreling with the deceased, and has specifically admitted that he did not inform the villagers about the said occurrence. 13. 13. We are of the considered view that even though P.W.-6 Durga Rai has tried to become the eyewitness to the occurrence, but in absence of any specific statement of assault made by him in his evidence, and in view of his admission that he had not given any information to the villagers, only the evidence of P.W.-6 Durga Rai cannot be made the basis for conviction of the appellant for the offence under Section 302 of the Indian Penal Code. In the facts of this case, we find that the appellant was entitled at least to the benefits of doubt and the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 14. For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 22.07.2006 passed by the learned 6th Additional Sessions Judge, F.T.C., Dhanbad, in S.T No. 310 of 2004/67 of 2005, are hereby, set aside. The appellant Teklal Mahto is given the benefit of doubt and he is acquitted of the charge. The appellant is in custody. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 15. This appeal is accordingly, allowed. Let the Lower Court Records be sent back forthwith, along-with a copy of this Judgment.