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2017 DIGILAW 2129 (JHR)

Kishun Mahto v. State of Jharkhand

2017-12-11

ANIL KUMAR CHOUDHARY, H.C.MISHRA

body2017
JUDGMENT : 1. By Court.-Heard learned counsel for the appellant and learned Addl. P.P. for the State. 2. The appellant is aggrieved by Judgment of conviction dated 7.3.2006 and Order of sentence dated 10.3.2006, passed by the learned 1st Additional Sessions Judge, Bermo at Tenughat, in S.T. No. 145 of 2001, whereby, the sale 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, he has been sentenced to undergo R.1. for life for the said offence. 3. The prosecution case was instituted on the basis of the First Information Report lodged by Ishwar Mahto, the son of the, deceased Murat Mahto, on 31.10.1986 at Nawadih Police Station. Shorn of unnecessary details, it is alleged that the informant had a tank in which there was some excavation work about four to five days prior to the occurrence, due to which some soil fell in the adjacent paddy field of the accused Kishun Mahto, which was objected by Kishun Mahto and as such, the digging of the pond was stopped. It is alleged that on the date of the occurrence also, the accused had threatened the informant and his father for the said reason, and also for the reason that he was made accused in one murder case. It is alleged that on the date of occurrence, the father of the informant had bathed his buffalo in the said pond and thereafter he was grazing the buffalo in the nearby field, where other persons were also grazing their cattle. The informant was also grazing his goat. In the meantime, the accused Kishun Mahto came armed with farsa and started assaulting his father. He made three to four assaults on his father due to which, his father fell down being injured. Upon raising alarm by the persons nearby and the informant, the accused fled away. While the informant was bringing his father to the hospital, his father died in the way, and then he brought the dead body to the Police Station and lodged the F.I.R., on the basis of which, Nawadih P.S. Case No. 63 of 1986 corresponding to G.R. No. 850 of 1986 was instituted for the offence under Section 302 of the Indian Penal Code against the accused Kishun Mahto. The investigation was taken up and after investigation, the police submitted the charge-sheet against the accused. 4. Upon commitment of the case to the Court of Session, charge was framed against the accused 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. 5. In course of trial, the prosecution has examined eight witnesses, including the Doctor, who had conducted the post mortem examination on the dead body of the deceased. The Investigating Officer has not been examined in this case and as such, the formal witness P.W. 8-Gouri Yadav has proved the case diary and the FIR, which were marked as Exhibits-3 and 4, respectively. 6. P.W. 6-Ishwar Mahto is the informant in this case and the son of the deceased. This witness has fully supported the prosecution case stating that the occurrence had taken place about 16 years ago on a Friday. At about 5.00 P.M., his father was grazing the buffalo calf, after bathing it in the pond and Meghlal Mahto, Laxman Mahto and Antu Mahto were also grazing their buffalo calves. Kishun Mahto came with farsa and made three to four assaults on his father, due to which his father fell down and thereafter, the accused fled away. The informant and the other persons were bringing his father to Nawadih Hospital, but his father died in the way to the hospital, and thereafter they brought the dead body to the Police Station, where the statement of the informant was recorded and he put his thumb impression thereon. He has also stated that same day, at about 3.00 P.M., the accused had threatened to remove the soil from his field, otherwise he would kill the informant and his father. This witness has identified the accused in the Court. In his cross-examination he has stated that on the date of occurrence, he had not met Meghlal Mahto, Laxman Mahto and Antu Mahto, but in the very next line, he has stated that he had met them at about 5.00 P.M., when his father was assaulted, thus making it clear that the informant had seen these persons at the time of occurrence. He has also stated that on the date of occurrence, his father was wearing saffron colour shirt. He has also stated that on the date of occurrence, his father was wearing saffron colour shirt. This appears to have been taken from the informant in the cross-examination, in view of the fact, that in the seizure list of bloodstained shirt of the deceased, the colour of the shirt is mentioned as white. There is nothing further of much importance in his cross-examination, except that he has denied the suggestion to have falsely implicated the accused due to previous enmity. 7. P.W. 1-Meghlal Mahto and P.W.-2 Antu Mahto, are the eyewitnesses to the occurrence, who were grazing their cattle at the place of occurrence at the time of occurrence. They have fully supported the prosecution case stating that while the were grazing their animals and the deceased was also grazing his animal, the accused Kishun Mahto, came armed with farsa and assaulted the deceased causing injuries on him, due to which he subsequently died. These two witnesses have also stood the test of cross-examination, and there is nothing in their cross-examinations to discredit their testimony. 8. P.W. 4-Charku Mahto, son of the deceased and P.W. 5-Devi Mahto, are the only seizure list witnesses and they have identified their signatures on both the original and the carbon copies of the seizure lists of seizing the bloodstained soil from the place of occurrence, and also the bloodstained torn shirt of white colour, of the deceased, and the same were marked exhibits. These witnesses have not stated anything about the occurrence. 9. P.W. 7-Dr. Sheo Narain Prasad, had conducted the post mortem examination on the dead body of the deceased on 1.11.1986 and had found following ante mortem injuries on the dead body: i. One incised injury on right side of head and face 9" x 2" x 2" deep, cutting the bone under it. ii. One incised injury on right side of chin 2" x 1/2" x 1/2" deep cutting the bone under it. iii. One incised injury on left side of chest 1" x 1/2" x 1" deep On dissection- i. Skull bone fractured. ii. Left two ribs fractured on front part. iii. Mandible fractured on right side. iv. Chest and abdominal cavity full of dark blood collection. v. Lung-Ruptured. vi. Heart-both side empty. vii. Liver-Ruptured. viii. Spleen-N.A.D. ix. Kidney-N.A.D. x. Stomach-Contained rice and sag about 600 grams. xi. Bladder-Empty. ii. Left two ribs fractured on front part. iii. Mandible fractured on right side. iv. Chest and abdominal cavity full of dark blood collection. v. Lung-Ruptured. vi. Heart-both side empty. vii. Liver-Ruptured. viii. Spleen-N.A.D. ix. Kidney-N.A.D. x. Stomach-Contained rice and sag about 600 grams. xi. Bladder-Empty. This witness has stated that the cause of the death was shock and hemorrhage, as a result of the aforesaid injuries and all the injuries were sufficient, in ordinary course of nature, to cause the death. This witness has identified the post mortem report to be in his pen and signature, which was marked as Exhibit-2. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No evidence was adduced by the defence. On the basis of the evidence on record, the accused was convicted and sentenced for the offence as aforesaid. 11. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence, are absolutely illegal and cannot be sustained in the eyes of law, in as much as, the prosecution has failed to bring home the charges against the appellant beyond all reasonable doubts. It was also submitted that there are discrepancies in the evidence of the witnesses, in as much as, even though P.W. 2-Antu Mahto has stated that the occurrence had taken place at about 4.00 P.M., and P.W. 1-Meghlal Mahto has also given the same time of occurrence in his cross-examination, but P.W. 6-lshwar Mahto, the informant, has stated that the occurrence had taken place at about 5.00 P.M. Learned counsel also submitted that P.W. 7-Dr. Sheo Narain Prasad, had conducted the post mortem examination on the dead body of the deceased, and his evidence shows that the first incised injury on the deceased was measuring 9" x 2" x 2" deep, whereas other injuries were much smaller in size, and as such, it cannot be said that all the injuries were caused by the same weapon. The Investigating Officer of this case has not been examined and as such, neither the place of occurrence has been proved, nor the necessary discrepancies in the statements of the witnesses before the Court below and before the police, could. be taken from Investigating Officer, which has vitally prejudiced the defence. The Investigating Officer of this case has not been examined and as such, neither the place of occurrence has been proved, nor the necessary discrepancies in the statements of the witnesses before the Court below and before the police, could. be taken from Investigating Officer, which has vitally prejudiced the defence. Learned counsel also submitted that in view of the admitted enmity between the parties, the false implication of the accused cannot be ruled out, and as such, it is a fit case, in which the accused ought to have been given the benefits of doubt. 12. Learned Addl. P.P. appearing for the State, on the other hand, has opposed the prayer and has submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence, in as much as, there are three eyewitnesses to the occurrence, who are P.W. 1-Meghlal Mahto, P.W. 2-Antu Mahto and PW.6-Ishwar Mahto, the informant and the son of the deceased. All these three witnesses have clearly stated that it was this accused who came with farsa and assaulted the deceased repeatedly, due to which, the deceased fell down being injured. The oral evidence of these witnesses is fully corroborated by the medical evidence of P.W. 7-Dr. Sheo Narain Prasad, who found three incised wounds on the dead body of the deceased, which were sufficient in ordinary course of nature to cause the death of the deceased. As such, there is no illegality in the impugned Judgment of conviction and Order of sentence. 13. Having heard learned counsels for the both the sides and upon going through the evidence on record, we find that three witnesses have deposed as the eyewitnesses in the Court and their presence at the place of occurrence is shown even in the FIR. These witnesses have clearly stated that while the deceased and these witnesses were grazing their animals, the accused Kishun Mahto came armed with farsa and assaulted the deceased repeatedly by the farsa causing bleeding injuries on him and he fell down. He died while being taken to the hospital and the dead body was brought to the Police Station, where the First Information Report was lodged by the informant. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W. 7-Dr. He died while being taken to the hospital and the dead body was brought to the Police Station, where the First Information Report was lodged by the informant. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W. 7-Dr. Sheo Narain Prasad and the post mortem report proved by him as Exhibit-2, which shows that three incised wounds were found on the vital parts of the body, which were sufficient in the ordinary course of nature to cause the death of the deceased. This clearly shows that the accused was having the intention to cause death of the deceased and he gave repeated blows of farsa on the deceased. Though in his evidence the informant P.W. 6-lshwar Mahto has stated that at the time of occurrence, the deceased was wearing a saffron colour shirt whereas, the seizure list shows colour of the shirt as white, and there is difference of one hour in the time of occurrence, as disclosed by tile informant and the other two witnesses, but these are only minor discrepancies and do not go to the root of the prosecution case. We find from the evidence on record that even though the Investigating Officer has not been examined in this case, but so far as the allegation of assault by the accused on the deceased is concerned, there is no discrepancy in the evidence of the witnesses and the attention of the witnesses were not drawn towards any discrepancy as regards the allegation of assault, in their evidence given in the Court, and the statement given before the police. As such, it cannot be said that the non-examination of the Investigating Officer has caused any material prejudice to the defence. The witnesses in their evidence and cross-examination have stated about the place of occurrence and in the facts and circumstances of the case, we find that non-examination of the Investigating Officer is not fatal to the prosecution. Though there are minor discrepancies in evidence of the witnesses, but the fact remains that the witnesses are innocent villagers, and such minor discrepancies are only natural and bound to occur. From the evidence on record, we are convinced that the appellant has rightly been convicted and sentenced by the Trial Court below. 14. Though there are minor discrepancies in evidence of the witnesses, but the fact remains that the witnesses are innocent villagers, and such minor discrepancies are only natural and bound to occur. From the evidence on record, we are convinced that the appellant has rightly been convicted and sentenced by the Trial Court below. 14. For the foregoing discussions, we do not find any illegality in the impugned Judgment of conviction dated 7.3.2006 and Order of sentence dated 10.3.2006, passed by the learned 1st Additional Sessions Judge, Bermo at Tenughat, in S.T. No. 145 of 2001, convicting and sentencing the appellant Kishun Mahto for the offence under Section 302 of the Indian Penal Code, which we hereby, affirm. The appellant is already in custody and undergoing the sentence. 15. There is no merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment.