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2019 DIGILAW 1042 (JHR)

Chaudhary Mahato v. State Of Bihar

2019-05-13

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT 1. Heard Learned Counsel for the appellants Mr. H.K. Mahato and Mr. Sudhir Kr. Roy, Additional Public Prosecutor representing the State. 2. Out of seven accused persons who faced trial including these two surviving appellants, four were convicted by the learned court of Additional Judicial Commissioner, Khunti for the charges under Section 302/34 of the I.P.C. by the impugned judgment of conviction dated 10th October 1996 rendered in S.T. No.788 of 1991 / T.R. No.239 of 1993 and rest three were acquitted of the charges. The convicts were sentenced to undergo rigorous imprisonment for life under Sections 302/34 of the I.P.C. Out of the original four convicts/appellants, two died during pendency of the present appeal and the appeal as respects them stood abated. The remaining two appellants named above are thus pressing the appeal against the impugned judgment of conviction dated 10th October 1996 and the order of sentence dated 11th October 1996. 3. On the basis of the Fardbeyan of Charan Mahto, father of the deceased recorded by Sub-Inspector H.N. Ram, Officer-in-charge Sonahatu Police Station at Thungrudih on 26th July 1990 at 10 hours Sonahatu P.S. Case No.35/1990 was registered at 14 hours against four named accused persons and the investigation commenced. The informant in his Fardbeyan alleged that his only son Premanand Singh (deceased) came back from the fields at 6 P.M. on 25th July 1990, brought with him 1/2 kg. of wheat flour, took meal in the house and at 7.30 P.M. he went out saying that he is going towards the shop of Banwari Mahto. Around 8 P.M. the informant heard a loud thud on the nearby road and he ran out with a torch. In the torch light he saw his son lying, bleeding profusely and accused Saynath Mahto (deceased appellant), Ramdas Mahto (deceased appellant) both sons of Daninath Mahto armed with Balua (a sharp cutting weapon) in their hands and Chaudhary Mahto and Chandra Mahto ( both the present appellants) sons of Saynath Mahto, all of village Bansia, P.S. Silli, District Ranchi; present address Thungrudih, Sasural (in-laws house) P.S. Sonahatu, District Ranchi fleeing away after committing the murder of his son. He raised a brawl and several persons assembled there to whom he narrated the occurrence. On these allegations, he named four accused persons having caused the murder of his son Premanand Mahto. He raised a brawl and several persons assembled there to whom he narrated the occurrence. On these allegations, he named four accused persons having caused the murder of his son Premanand Mahto. Names of three more persons transpired during investigation also on the suspicion of the informant who all were chargesheeted vide three different Chargesheets, first bearing no.35/90 dated 7th November 1990 against five accused persons namely Saynath Mahto, Ramdas Mahto, Chaudhary Mahto, Chandra Mahto and Girdhari Mahto, keeping the investigation pending with respect to Ghasiram Munda and Padlochan Mahto. Subsequently Padlochan Mahto was chargesheeted vide Chargesheet No.23/91 dated 23.04.1991 and later on Ghasiram Munda was chargesheeted vide Chargesheet No.32/91 dated 17.07.91 all under Sections 302/34 of the I.P.C. 4. After cognizance and commitment to the court of learned Sessions Judge, charges were framed against all the seven accused persons including four F.I.R. named accused under Section 302/34 of the I.P.C. on 16th July 1994 by the learned court of Additional Judicial Commissioner, Khunti. The accused persons denied the charges and claimed to be tried when the charges being read over and explained to them in Hindi. 5. During course of trial prosecution examined altogether 11 witnesses named as under :- 1. Musha Mahto 2. Gurucharan Hazam 3. Narayan Singh Munda 4. Banwari Mahto 5. Mangal Machuwa 6. Charan Mahto 7. Brindavan Mahto 8. Dhupu Mahto 9. Sahay Lakra 10. Hira Nand Ram 11. Dr. Chandrashekhar Prasad It also adduced certain documentary evidence up to Ext.7 as under :- Ext.1 & 1/1 - Signature of Narayan Singh Munda on carbon copy of inquest report Ext.1/2 - Signature of witness Narayan Singh Munda on seizure list of blood stained soil Ext.2 - Fardbeyan Ext.3 - Signature of Brindavan Mahto on Seizure list Ext.4 - Signature of Hira Nand Ram, S.I. on Fardbeyan Ext.5 - Signature of Hira Nand Ram, S.I. on formal FIR Ext.6 - Inquest report Ext.7 - Postmortem report. 6. After closure of the prosecution evidence, the statement of the accused was recorded on 3rd July 1996 under Section 313 of the Cr.P.C. where they denied their involvement and pleaded innocence. On their behalf one defence witness Lance Nayak Ravan Mahto D.W.1 was examined and admission and discharge register of Namkum Military Hospital was adduced as Ext.A. All the documentary evidence by both the sides were adduced without objection. 7. On their behalf one defence witness Lance Nayak Ravan Mahto D.W.1 was examined and admission and discharge register of Namkum Military Hospital was adduced as Ext.A. All the documentary evidence by both the sides were adduced without objection. 7. Learned trial court on consideration of the evidence on record and the submissions of the counsel for the parties, acquitted three out of seven accused who faced trial while convicted the remaining four under the aforesaid charges who were the original appellants. After the death of two appellants namely Saynath Mahto and Ramdas Mahto during pendency of this appeal, the appeal has been argued on merits by the learned counsel for the surviving appellants Mr. H.K. Mahato on the following counts: Learned counsel for the appellants submits that conviction of these two appellants is without any legal evidence. Even if the case of the informant/prosecution is believed to be true, informant has only alleged weapon of assault i.e. Balua in the hands of two deceased appellants, though informant was not eye-witness to the occurrence. False implication of all these four accused persons is quite likely as they were close neighbours. However, there is no proof of motive or previous enmity against these accused persons by the prosecution. This is not a case of direct evidence as there is no eye-witness to the occurrence. In such a case of circumstantial evidence, all the circumstances including the motive for commission of the offence which are relevant and conclusive on their own were required to be proved to the hilt by the prosecution so as to form a complete chain which unseeingly pointed to the only hypothesis of the guilt of these accused persons as per the Panchsheel principles rendered by the Apex Court in the case of Sharad Birdhich and Sarda Vs. State of Maharashtra , (1984) 4 SCC 116 . On mere suspicion these two appellants have been convicted for the charge under Section 302 I.P.C. with the aid of Section 34 I.P.C. i.e. they acted in furtherance of the common intention to commit the murder of the son of the informant together with the other two deceased appellants. State of Maharashtra , (1984) 4 SCC 116 . On mere suspicion these two appellants have been convicted for the charge under Section 302 I.P.C. with the aid of Section 34 I.P.C. i.e. they acted in furtherance of the common intention to commit the murder of the son of the informant together with the other two deceased appellants. However, prosecution has not been able to prove any pre-meditation leading to formation of common intention as the first account of the incidence as per the prosecution is after the commission of the offence since informant examined as P.W.6 has reached the place of occurrence only after the assault was over. He has not seen the occurrence but claims to have seen two accused persons namely Saynath Mahto and Ramdas Mahto as having been armed with Balua but as against these two appellants neither in the Fardbeyan nor in his deposition he has attributed any weapon of assault. No other witness has seen the occurrence nor seen the four accused persons named in the F.I.R. as fleeing from the place of occurrence. P.W.8 Choukidar Dhupu Mahto and P.W.7 nephew Brindavan Mahto both have heard the narration of the occurrence from the informant only and are thus hearsay witness. P.W.4 to whose shop the son of the informant went towards, has not supported the case of the prosecution. Similarly, P.W.5 Mangal Machuwa has also not supported the case of the prosecution. Both of them were declared hostile on the request of the prosecution. The Investigating Officer though has in his deposition stated about the statement made by P.W.4 Banwari Mahto and P.W.5 Mangal Machuwa under Section 161 of the Cr.P.C., but they have not supported their version during trial and as such were declared hostile. From the evidence of investigating officer P.W.10 or P.W.1 Musha Mahto, uncle of the deceased no previous enmity or motive for the occurrence have been proved which is an important ingredient in a case of circumstantial evidence. P.W.11 Dr. Chandrashekhar Prasad conducted the post-mortem examination on the dead body of the deceased on 26th July 1990 at 4 P.M. The antemortem injuries on the deceased described by him were two abrasions and only three incised wounds. Post-mortem report has been proved by him as Ext.7. Both the ocular testimony and the medical evidence failed to attribute any overt act against these two accused appellants. Post-mortem report has been proved by him as Ext.7. Both the ocular testimony and the medical evidence failed to attribute any overt act against these two accused appellants. Ingredients of common intention have not been established at all by the prosecution even on consideration of the entire prosecution evidence. 8. It is submitted that learned trial court has also disbelieved half of the prosecution case and acquitted the other three accused who were sent up for trial along with the four convicts. To that extent the deposition of the informant Charan Mahto father of the deceased has also been disbelieved. In the absence of any motive or previous enmity, chances of false implication of these accused/appellants are quite likely as they were close door neighbours. The place of occurrence has been described by the Investigating Officer at para-3 of his deposition. It shows that the house of the accused were 10 yards from the place of occurrence while that of informant was 15 yards only. If the assault occurred at around 7.30 to 8.00 in the evening, no one else has come forward to support the case of the prosecution. It is, therefore no safe to uphold the conviction of these two appellants for the charge of murder with the aid of Section 34 of the I.P.C. Appellants have made out a good case for acquittal on the basis of benefit of doubt. 9. Learned Additional Public Prosecutor has supported the impugned findings rendered by the learned trial court. According to him, the impugned judgment is well considered and based upon proper appreciation of the entire prosecution evidence brought on record. There is no reason to disbelieve the prosecution case as made out from the mouth of the informant who was the father of the deceased, in the Fardbeyan. He was the father of the deceased and had immediately reached after the murderous assault upon his son upon hearing a loud sound. During trial this witness has stood firm so far as the relevant facts in issue concerning the charges to be proved. The time, place and manner of occurrence/immediate effect of the assault and the conduct of the accused persons/these appellants also fleeing away from the place of occurrence, all have been supported by him. Common intention can be formed at the spur of the moment. The time, place and manner of occurrence/immediate effect of the assault and the conduct of the accused persons/these appellants also fleeing away from the place of occurrence, all have been supported by him. Common intention can be formed at the spur of the moment. If all the facts and circumstances are considered together, the assault on the victim by these accused persons in furtherance of their common intension stands duly established. The nature of injuries found in the postmortem report are all by heavy sharp cutting weapon like Balua as described by the informant in his deposition also. The learned trial court has separated the grain from the chaff and rightly believed the prosecution case as against the four convicts including these two appellants, though there was doubt as regards the implication of remaining three accused persons who were not even named in the Fardbeyan lodged on the next morning. The Investigating Officer has proved the inquest report and also the seizure list of the blood stained soil prepared in presence of two witnesses. He has also inspected the place of occurrence and properly described it at para-3 of his deposition. The presence of these accused persons including these two appellants at the place of occurrence is not a matter of doubt since their house was at a distance of 10 yards only from the place of occurrence. Though the case may not be of an eye-witness account, but the immediate effect of the occurrence as duly proved through the informant with the support of other prosecution witnesses who reached immediately thereafter like P.W.8 Dhupu Mahto (Chowkidar) and P.W.7 Brindavan Mahto constitute legal evidence as per Sections 5 to 8 of the Evidence Act under the principles of res gestae. The learned trial court has therefore rightly convicted these two accused appellant also apart from other two deceased appellants for the charge of murder with the aid of Section 34 of the I.P.C. 10. We have considered the submissions of learned Counsel for the appellants and the State. We have also gone through the entire materials brought on record in the form of Fardbeyan, framing of the charge, evidence of 11 prosecution witnesses, 7 prosecution exhibits, the statement of the accused under Section 313 of the Cr.P.C., statement of one defence witness and a defence exhibit. We have perused the impugned judgment of conviction and order of sentence also. 11. We have perused the impugned judgment of conviction and order of sentence also. 11. Learned trial court on consideration of the evidence on record in its finding believed the prosecution story so far as the four F.I.R. named accused persons are concerned, though it also took into account that as per the informant P.W.6 accused Saynath Mahto and Ramdas Mahto (both deceased appellants) were only armed with Balua and these two appellants were fleeing away from the place of occurrence when he rushed there on hearing the sound of loud thud. Learned trial court also found corroboration of the antemortem injuries on the dead body of the accused as proved through P.W.11 Dr. Chandrashekhar Prasad in the form of Postmortem report (Ext.7). Antemortem injuries found on the body of the deceased along with opinion of the Doctor is quoted hereunder for better appreciation :- "Abrasions: (i) 2 x 1 cm, 3 x 2 cm, 1 x 1 cm on the right knee front; (ii) 3 x 2 cm on the right palm back. Incised wound: (i) 12 x 11/2 cm x bone deep on the left lateral upper part of the neck cutting the soft tissues, blood vessels of the left side of the neck cutting the 4th and 5 th cervical vertebra completely including spinal cord; (ii) 14 x 31/2 cm x bone deep at the left side of occipital region of the head and adjoining mastoid region cutting the underlying occipital bone and mastoid bone completely; (iii) 15 x 21/2 cm x cavity deep on the occipital region situated transversely and 3 cm above the preceding injury cutting the underlying occipital bone completely and brain matter partially. Opinion : (1) All the injuries are antemortem (2) Caused by heavy sharp cutting instrument (3) Death is due to injury to spinal cord (4) Time since death- 12-24 hours from the time of P.M. Exam. (5) Abrasions are caused by hard and blunt substance." 12. A mere perusal of the injuries shows two abrasions and three incised wounds. The incised wounds are on the vital part of the body such as neck; left side of occipital region and 3rd being an incised wound 15 cm. x 21/2 cm. x cavity deep on the occipital region situated transversely and 3 cm above the preceding injury cutting the underlying occipital bone completely and brain matter partially. The incised wounds are on the vital part of the body such as neck; left side of occipital region and 3rd being an incised wound 15 cm. x 21/2 cm. x cavity deep on the occipital region situated transversely and 3 cm above the preceding injury cutting the underlying occipital bone completely and brain matter partially. In the opinion of the Doctor injury to the spinal cord was the cause of death. The injuries were caused by heavy sharp cutting instrument. No doubt death of the son of the informant occurred due to homicidal assault. 13. The informant even at the stage of institution of the F.I.R. which was on the next date 26th July 1990 at 10 A.M., about 14 hours after the incidence, did not attribute any motive nor described any weapon of assault in the hands of the remaining two accused i.e. the present appellants. The three incised injuries caused by heavy sharp cutting weapon are subscribed to the assault by Balua by the other two accused namely Saynath Mahto and Ramdas Mahto who were stated to be carrying Balua in their hands. To this extent P.W.6 has supported his Fardbeyan in the trial as well. However, informants embellishment in naming other three accused not named in the F.I.R. only on the basis of suspicion during trial has been disbelieved by the learned trial court. Presence of these two appellants at the place of occurrence is not proved by any other prosecution witness as none of them were present at the time of occurrence or immediately after the occurrence except the informant. P.W.8 Chowkidar Dhupu Mahto had reached the place of occurrence at around 10 p.m. and was told by the informant about the occurrence and the name of Saynath Mahto and Chandra Mahto. He is, therefore, a hearsay witness. Similarly P.W.7 nephew of the informant Brindavan Mahto had also supported the prosecution case only as a hearsay witness having heard the occurrence from the informant P.W.6. P.W.4 Banwari Mahto towards whose shop the victim had gone, has not supported the case of the prosecution during trial and was declared hostile. Mangal Machuwa P.W.5 another prosecution witness has also not supported the case of the prosecution and was declared hostile. P.W.4 Banwari Mahto towards whose shop the victim had gone, has not supported the case of the prosecution during trial and was declared hostile. Mangal Machuwa P.W.5 another prosecution witness has also not supported the case of the prosecution and was declared hostile. P.W.1 Musha Mahto uncle of the deceased has also reached the place of occurrence after hearing a brawl raised by the informant and came to know about the occurrence from the mouth of the informant. In his cross-examination he has denied knowledge about any case between the accused and the informant. P.W.2 Gurucharan Hajam has been tendered by the prosecution. P.W.3 Narayan Singh Munda has proved his signature on the carbon copy of the inquest report, on the seizure list of blood stained soil and was a hearsay witness. P.W.9 was posted at Sonahatu Police Station. He has proved signature of Hira Nand Ram, Sub-Inspector P.W.10 on the Fardbeyan. He has also proved the signature of P.W.10 Hira Nand Ram Sub-Inspector on formal F.I.R. as also the inquest report. P.W.10 Investigating Officer has endorsed the proof of the Fardbeyan by P.W.9 (Ext.4), the inquest report (Ext.6) proved by P.W.9 earlier and the seizure list (Ext.3) proved by P.W.7. Place of occurrence has been described by the Investigating Officer at para-3 of his deposition. Boundage of the place of occurrence, a public road, has been described. Of significance in his description is the distance of the house of the accused and the informant 10ft. and 15 yards from the place of occurrence respectively. In his deposition also, though he has referred to the statement of the witnesses P.W.4 and 5 recorded under Section 161 Cr.P.C. (both of whom were declared hostile during trial), but does not speak of any motive or previous enmity found between the informant and the accused persons during investigation. 14. and 15 yards from the place of occurrence respectively. In his deposition also, though he has referred to the statement of the witnesses P.W.4 and 5 recorded under Section 161 Cr.P.C. (both of whom were declared hostile during trial), but does not speak of any motive or previous enmity found between the informant and the accused persons during investigation. 14. Upon careful scanning of the entire material evidence on record in the aforesaid manner, we are of the considered view that it is not safe to uphold the conviction of these two appellants for the charge of murder only with the aid of Section 34 of the I.P.C. We are inclined to say so for the aforesaid reasons and in particular absence of any ocular testimony as to the actual assault; absence of any proof of pre-meditation of mind between all the four F.I.R. named accused persons to commit murder of the son of the informant; absence of any weapon of assault in the hands of these two appellants even as per the case of the informant (P.W.6) both in his Fardbeyan and during trial; presence of three ante-mortem incised wounds on the dead body of the victim which could be attributable to the assault by remaining two accused persons/deceased appellants, who were specifically named as being armed with Balua ( a heavy sharp cutting weapon) and more importantly absence of any previous enmity or motive for the offence. Prosecution has also failed to prove any injuries or weapon in the hands of these two appellants and corresponding injuries on the deceased by any other weapon such as hard and blunt substance. We also find that there are no other eye witnesses either to the occurrence or fleeing away of these two accused/two appellants immediately after the occurrence to corroborate the testimony of the sole witness, who claims to have seen these two appellants as fleeing away from the place of occurrence. The Fardbeyan was recorded after 14 Hours of the occurrence but the informant has not attributed any weapon of assault in the hands of these two appellants or shown any motive for the crime. The Fardbeyan was recorded after 14 Hours of the occurrence but the informant has not attributed any weapon of assault in the hands of these two appellants or shown any motive for the crime. Since the assault was not witnessed by any one and P.W.6 alone is the person, who claims to have reached after hearing a loud thud not a loud shout or brawl raised by the victim after the assault, the ingredients of common intention as defined under Section 34 of the Indian Penal Code do not appear to be made out to uphold the conviction of these two appellants with the aid thereof along with remaining two convicts who have died during pendency of this appeal. 15. Considering the entire facts and circumstances discussed hereinabove, on re-appreciation of the evidence on record, we reiterate our opinion that it is not safe to uphold the conviction of the present appellants for the charge of murder with the aid of Section 34 of the I.P.C. As such, their conviction is set aside. Appeal stands allowed. 16. Appellants, who are on bail, they are discharged from liability of their bail bonds. Let the lower court records be sent down to the concerned Court with a copy of this judgment without any delay.