Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 761 (JHR)

Paritosh Mahto @ Pappu v. State of Jharkhand

2019-03-28

APARESH KUMAR SINGH, KAILASH PRASAD DEO

body2019
JUDGMENT : Heard learned Amicus Curiae Mrs. Rashmi Kumar representing the appellant and Mr. Shekhar Sinha, learned Additional Public Prosecutor representing the State. 2. The sole convict who has faced conviction under Section 302 of the I.P.C and is undergoing sentence of R.I. for life with fine of Rs.5000/-, in default whereof, to undergo further R.I. for 10 months under the impugned judgment dated 27.01.2011 and the order of sentence dated 29.01.2011 passed in S.T. No. 87 of 2009 by the learned Court of Additional Sessions Judge, F.T.C.-II, Seraikella, is in appeal before us. 3. The investigation was set into motion upon institution of the formal F.I.R being Chandil P.S. Case No. 145 of 2009 registered on 30.06.2009 at 10.00 a.m. on the basis of fardbeyan of the Informant Kusha Mahto (P.W.7), husband of one of the deceased Tilka Mahatani and nephew of other deceased Kamal Mahto recorded at 6.40 a.m. on 30.06.2009 at his house at Bandhu Gora village by the Sub Inspector of Police Lal Muni Ram, Officer-In-Charge of Kapali Police Station, Chandil, District Seraikella. The gist of the occurrence is as under: The informant alleged that at 6.00 a.m. on 30.06.2009, Tuesday, he along with his cousin brother Binod Mahato had gone to relieve themselves in the field and his uncle Kamal Mahto had come back after relieving himself and was sitting in the cot in front of the door. When both the informant and his cousin Binod Mahto returned from the field, they saw Kamal Mahto lying dead on the cot with serious injuries on left temple, head and mandible apparently caused by thick Iron rod. On seeing this, informant’s cousin Binod Mahato told that it appears that Papua had killed his father and there after both of them started searching for his wife. When they entered kitchen, which had tiled roof, informant saw his wife lying dead and lot of blood splattered around. Right side of her face and mandible had also injuries caused by thick iron rod. They came out of the kitchen and conveyed the information to the Police. Nearby neighbours and few women told them that Paritosh Mahto @ Papua, son of Binod Mahato had killed his aged grandfather by assaulting him with iron rod. Right side of her face and mandible had also injuries caused by thick iron rod. They came out of the kitchen and conveyed the information to the Police. Nearby neighbours and few women told them that Paritosh Mahto @ Papua, son of Binod Mahato had killed his aged grandfather by assaulting him with iron rod. When the informant’s wife tried to save him, she was also chased and followed to the kitchen where Papua assaulted her with the iron rod and killed her. When the nearby women and children went to see, they were also chased by him with iron rod. On information, police had immediately reached the place of occurrence and nearby neighbor had also assembled. The informant alleged the reason for the occurrence that Paritosh Mahto @ Papua who was Matric pass wanted to lead a hi-fi life and used to demand money from his father, mother and grandfather by pressurizing them to sell off their landed property so that he could go for higher studies, which the family members could not fulfill and was the reason for frequent threat. He used to share his views regarding his hi-fi life and studying outside with the members of the locality. On these assertions informant alleged that his wife Tilka Mahatani and his uncle Kamal Mahto have been killed by his nephew Paritosh Mahto @ Papua, son of Binod Mahato of village Bandhugora, Kapali P.S, Chandil, District Seraikella-Kharsawan on account of grudge that they could not bear his expenses for leading a hi-fi life and for studies, by iron rod. 4. Upon investigation, finding the case to be true, Police submitted charge-sheet bearing no. 148 of 2009 dated 31.07.2009 under Section 302 of the I.P.C against the sole accused named above. After cognizance and commitment of the case, learned Court of Additional Sessions Judge, FTC-II, Seraikella framed charge under Section 302 of the I.P.C against the sole accused on 21.12.2009 which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. Thus the trial commenced. 5. During course of trial, prosecution had examined 10 witnesses as under: 1.P.W.1 Babulal Tudu 2.P.W.2 Govind Mahato 3.P.W.3 Sahida Khatoon 4.P.W.4 Guriya 5.P.W.5 Lilawati Devi, mother of the accused/appellant 6.P.W.6 Madan Mahato 7.P.W.7 Kusha Mahato, informant of the case 8. P.W.8 Binod Mahato, father of the accused /appellant 9. Thus the trial commenced. 5. During course of trial, prosecution had examined 10 witnesses as under: 1.P.W.1 Babulal Tudu 2.P.W.2 Govind Mahato 3.P.W.3 Sahida Khatoon 4.P.W.4 Guriya 5.P.W.5 Lilawati Devi, mother of the accused/appellant 6.P.W.6 Madan Mahato 7.P.W.7 Kusha Mahato, informant of the case 8. P.W.8 Binod Mahato, father of the accused /appellant 9. P.W.9 Ajay Kumar Mahato 10. P.W.10 Dr. J. Sriniwas Rao, Medical Officer who has conducted autopsy on the dead body of the deceased. & 1. C.W.1 Ajit Kumar who has brought on record the material exhibit (iron rod) marked as Ext.I Apart from the above, prosecution has also adduced documentary evidences up to Ext. 4/A, all without objection, as under: 1. Ext.- 1- Inquest report of deceased Kamal Mahato 2. Ext.- 1/A- Inquest report of deceased Tilka Mahatani 3. Ext.- 2 – Seizure list of blood stained iron rod 4. Ext.- 3 – Fardbeyan of the informant 5. Ext.- 3- Signature of PW- 5 Sudhir Mahato on the Fardbeyan, proved by him. 6. Ext.- 4- post mortem report of Kamal Mahato 7. Ext.- 4/A- post mortem report of Tilka Mahatani 6. After closure of the prosecution evidence, the sole accused was examined under Section 313 Cr.P.C. wherein he denied his involvement in the offence and claimed to be innocent. 7. No defence witness was examined on behalf of the accused neither any documentary evidence was exhibited. 8. Learned Trial Court upon consideration of the entire material brought on record and submission of learned counsel for the parties held the accused guilty for having committed murder of his grandfather Kamal Mahato and aunt Tilka Mahatani and accordingly sentenced him to undergo R.I for life. 9. We have been taken through the entire material evidence on record by both learned Amicus Curiae and learned Additional Public Prosecutor in support of the challenge to the impugned judgment or in defence thereof, respectively. We have also scanned the entire material in depth to test the correctness and legality of the impugned conviction recorded by the learned Trial Court. On the part of the appellant, it has been argued by learned Amicus Curiae that the prosecution has not been able to prove the charge beyond shadow of all reasonable doubts. We have also scanned the entire material in depth to test the correctness and legality of the impugned conviction recorded by the learned Trial Court. On the part of the appellant, it has been argued by learned Amicus Curiae that the prosecution has not been able to prove the charge beyond shadow of all reasonable doubts. Statement of the prosecution witness namely Guriya (P.W.4), Lilawati Devi (P.W.5), Kusha Mahato (P.W.7), informant and Binod Mahato (P.W.8), father of the appellant, all taken together do not inspire confidence that anyone are witness to the occurrence. The fardbeyan was given by uncle of the appellant Kusha Mahato (P.W.7), who himself was hearsay witness and so was Binod Mahato (P.W.8), father of the appellant, both of whom had gone for relieving themselves when the alleged occurrence took place. As per the fardbeyan, on return they had not found any inmate inside the house who could inform them about the assault by this appellant on the victim who were his grandfather and aunt. This informant in his fardbeyan also does not disclose the name of P.W.5 Lilawati Devi, mother of the appellant who has posed herself as an eye witness. Guriya (P.W.4) was not named in the fardbeyan by the informant as the person who saw the incidence or informed him about it. During deposition, she also does not state as if she had seen the occurrence. Therefore, these witnesses are not witness to the occurrence. There is only a presumption that appellant was responsible for committing the murder. He was roaming with iron rod with blood stain. Kusha Mahato (P.W.7), informant has in his deposition not supported the reason or motive for commission of the offence as stated in the fardbeyan. At para 5 of his cross examination, he has denied any knowledge about the reason for the murder. He also has stated that he had not witnessed the occurrence. There are contradictions in the statements of this prosecution witness on facts in issue as to from where the accused was apprehended. At para 5 of his cross examination, he has denied any knowledge about the reason for the murder. He also has stated that he had not witnessed the occurrence. There are contradictions in the statements of this prosecution witness on facts in issue as to from where the accused was apprehended. Govind Mahato (P.W.2) who has been declared hostile on the request of the prosecution in his cross examination claimed to have seen the accused running around with iron rod in hand and chasing the children but Lilawati Devi (P.W.5) and Binod Mahato (P.W.8), both say that he was arrested by the Police from inside the room with an iron rod containing blood stains. If this version of the prosecution witnesses are taken to be true, it does not show a natural conduct of the accused who has committed murder of his own grandfather and aunt. In such a situation the accused would like to flee away from the place of occurrence to save himself. Learned Amicus Curiae has also pointed out that Investigating Officer has not appeared in support of the prosecution case, which has caused prejudice to the appellant. The vital facts in issue relating to the place of occurrence and whether these prosecution witnesses namely Guriya (P.W.4), Lilawati Devi (P.W.5) and Binod Mahato (P.W.8) had duly seen the occurrence and whether their statements were recorded under Section 161 Cr.P.C by the Investigating Officer is not clear. If they have deposed for the first time during trial as an eye witness, their versions are not be taken as sacrosanct. In these circumstances, learned Trial Court committed a serious error of law in recording the findings of conviction against the sole accused who is a young boy of the same family but unfortunately mistaken to be the real culprit. Appellant has been able to show that prosecution story suffers from several loopholes and has not been proved beyond shadow of all reasonable doubts. The impugned conviction is unsustainable in law and on facts. Therefore, the appeal deserves to be allowed. 10. Appellant has been able to show that prosecution story suffers from several loopholes and has not been proved beyond shadow of all reasonable doubts. The impugned conviction is unsustainable in law and on facts. Therefore, the appeal deserves to be allowed. 10. Learned Additional Public Prosecutor has, after placing the evidence on record at length, summarized his argument on following counts: He submits that in the first place, the Informant who is the uncle of the appellant along with the father and mother of the appellant do not have any reason to falsely implicate the appellant for commission of an offence of murder of his grandfather and wife of the Informant. The incidence was reported to the police within 40 minutes of the occurrence, thereby leaving no scope for concoction. The accused was apprehended from the place of occurrence inside the room of the house with an iron rod containing blood stains used in the assault. That iron rod has also been exhibited and proved during trial as Ext.I by the Court witness no.1. The mother of the accused has seen the occurrence and is a natural witness to the crime who also had to flee away as the appellant in a fit of rage, was running after the inmates of the house to kill each one of them, since he had already killed his grandfather and aunt who had tried to save him. The mother of the appellant could not have any motive to falsely implicate her own son. Similar is the case of P.W.8, father of the appellant, who has truthfully deposed about the incidence as initially reported by the Informant (P.W.7) and further supported it as having heard from the mouth of his own wife, a natural eyewitness to the occurrence. In the testimony of none of these vital material prosecution witnesses, defence has been able to elicit any contradiction or been able to show that the offence was committed by some other persons and he has been falsely implicated. The evidence of Medical Expert Dr. In the testimony of none of these vital material prosecution witnesses, defence has been able to elicit any contradiction or been able to show that the offence was committed by some other persons and he has been falsely implicated. The evidence of Medical Expert Dr. J. Srinivas Rao (P.W.10) who conducted post-mortem examination on the dead body of the deceased Kamal Mahato and Tilka Mahatani on 30.06.2009 i.e. the date of occurrence at about 10.00 a.m. and 10.40 a.m. respectively, completely corresponds to the nature of injury caused by the appellant by use of an iron rod on the vital part of the body i.e. head and face of two victims of the assault. In the opinion of the doctor, death was caused due to head injury and facial and head injury in the respective cases, both of which were ante mortem in nature and caused by hard and blunt object. The time since death is also reported to be within six hours from the time of post-mortem examination. The defence has not been able to discredit the testimony of the medical evidence. The entire evidence on record taken together points out only and only towards the guilt of the sole accused / appellant. In such a case when own inmate of the family has afflicted fatal injury on his grandfather and his aunt and that too in the precincts of the house at around 6 a.m. in the morning, prosecution was not required to support its case by procuring evidence from any other source including neighbours. Therefore, all the ingredients of the offence and the relevant facts in issue have been cogently proved to support the findings of the learned Trial Court. Therefore, there is no material error or illegality in the impugned findings which deserve interference by this Court in appeal. The appeal being without substance, is fit to be dismissed. 11. We have given anxious consideration to the submissions of learned Amicus Curiae and learned Additional Public Prosecutor and gone through the entire material on record including the fardbeyan, framing of charge, evidence of 10 prosecution witnesses, one court witness, documentary evidence in the nature of prosecution exhibits up to Ext.4 series including Ext. I adduced by the court witness and also statement of the accused under section 313 of the Cr.PC. We have also minutely perused the impugned judgment of conviction and order of sentence. I adduced by the court witness and also statement of the accused under section 313 of the Cr.PC. We have also minutely perused the impugned judgment of conviction and order of sentence. Upon considerable and in-depth analysis of the entirety of material evidence on record, we are inclined to uphold the findings of the learned Trial Court for the following reasons: At the outset, it needs to be observed that this is one of those cases where the murder has been committed by a young man of 23 years of the close inmates of his family i.e. grandfather and his own aunt. The uncle of the appellant is the Informant who has suffered the loss of his wife Tilka Mahatani and two other material prosecution witnesses are the own mother and real father of the appellant namely, Lilawati Devi (P.W.5) and Binod Mahato (P.W.8). P.W. 8 is the father of the appellant who had accompanied the informant to the field at 6 a.m. in the morning for relieving themselves and as per the Informant, his father Kamal Mahato had by that time come from the field and was sitting on the cot just in front of the door of the house. The Informant Kusha Mahato and his cousin, Binod Mahato (P.W.8), father of the appellant both returned from the field after a while to find Kamal Mahato, father of P.W.8 lying dead on the cot with serious injury on the head, mandible and face and the immediate reaction of P.W.8, as duly stated in the fardbeyan proved by P.W.5, was that his son Paritosh @ Pappua i.e. the appellant has killed his father. P.W.8 has graphically supported the reason indicated in the fardbeyan during his deposition in trial for commission of the offence by this appellant. Father of the appellant was aware that the appellant was prone to lead hi-fi life and was pressurizing them including the grandfather to dispose of the landed property to support him and send him outside for higher studies since he had passed the matriculation. The extent of his threats given earlier had carried an impression upon the father of the appellant that such a crime was committed by his own son. The extent of his threats given earlier had carried an impression upon the father of the appellant that such a crime was committed by his own son. When the Informant Kusha Mahato and Binod Mahato (P.W.8) further went inside in search of other inmates, they found dead body of the Informant’s wife in the kitchen with grievous injury on the head caused by iron rod. Statement of the Informant in the Fardbeyan to the effect that the accused had chased the women and other children also to inflict injury, duly stands corroborated by the testimony of the appellant’s mother (P.W.5) Lilawati Devi who had seen the occurrence and had to flee away on account of grave posturing of the appellant to kill the inmates and others who came on his way. There is no reason for P.W.5 Lilawati Devi to falsely implicate her own son for the commission of the offence. 12. On behalf of the accused, defence could not gather any material or put such questions which could dent the credibility of these prosecution witnesses considering the nature of the crime which can be termed as patricide and matricide. Injuries found on the dead body stand corroborated by the medical evidence as having been caused by hard and blunt substance, which in the opinion of the doctor (P.W.10) were sufficient in the ordinary course of nature to cause death. It is appropriate to extract the relevant part of the post-mortem report of the two victims proved by P.W.10 Dr. J. Srinivas Rao and marked as Ext.4 and 4/A hereunder : “1. Post mortem report of Kamal Mahato A. External- I. Lacerated wound 18 cm x 9cm x brain deep over head and face. Extending from inner angle of the left eye to back of the head right side up to 2 cm above right ear. II. Laceration 5cm x 3cm x bone deep over right side of the head just adjoining to injury no. 1. III. Laceration 4cm x 3cm x skin deep over right side of the neck. IV. Laceration 1 ½ cm x 1cm x skin deep over right elbow. B. Internal Injury.- I. Contusion laceration right fronto tempero parietal region of the scalp. II. Depressed commuinated fracture of tempero parietal bone of the skull (some part of the bone missing). III. 1. III. Laceration 4cm x 3cm x skin deep over right side of the neck. IV. Laceration 1 ½ cm x 1cm x skin deep over right elbow. B. Internal Injury.- I. Contusion laceration right fronto tempero parietal region of the scalp. II. Depressed commuinated fracture of tempero parietal bone of the skull (some part of the bone missing). III. Contusion laceration of fronto tempero parietal lobe of the Brain, defused contusion of the whole brain. Opinion : I. All injuries are ante mortem and caused by hard and blunt object. II. Death is due to head injury. III. Time since death within six hours from the time of P.M. examination. This P.M. examination report is in my pen and bears my signature. On identification of the witness P.M. examination report is being marked Ext.4. 2. On same day at 10.40 A.M. I also conducted the post-mortem on the body of Tilka Mahatani W/o Kusha Mahato aged about 50 years of same address. Body was brought and identified by the same person. On examination, I found the following injuries: A- External- I. Laceration 6cm x 4cm x bone deep over left side of the face. II. Laceration 18cm x 6cm x bone deep over left side of the face. III. Laceration 16cm x 8cm x bone deep over left side of the head to left side of the neck. IV. Abrasion 2cm x 1cm, 1cm x 1cm, 2cm x 1cm, 3cm x 1cm over right side of the forehead. B. Internal Injuries- I. Contusion laceration of right frontal scalp. II. Contusion laceration of facial muscles. III. Fracture of the facial bone. IV. Fracture of the right fronto tempero parietal bone of the skull. V. Contusion laceration of tempero parietal region of the scalp. VI. Defused contusion of fronto tempero parietal and occipital lobe of the brain with laceration of the brain. Opinion: I. Injuries are ante mortem and caused by hard and blunt object. II. Death is due to facial and head injuries. Time since death within six hours from the time of P.M. examination. This P.M. report is in my pen and signature on identification of the witness. P.M. report of Tilka Mahatani is being marked as 4/A.” 13. Opinion: I. Injuries are ante mortem and caused by hard and blunt object. II. Death is due to facial and head injuries. Time since death within six hours from the time of P.M. examination. This P.M. report is in my pen and signature on identification of the witness. P.M. report of Tilka Mahatani is being marked as 4/A.” 13. As observed hereinabove, defence could neither discredit the testimony of any of the vital and material prosecution witnesses, nor could appellant say anything in his defence during his statement recorded under section 313 of the Cr.PC. There are no alternative plausible theory of the crime when we re-appreciate the evidence on record in proper perspective. We are unable to find any error whatsoever in the findings of the learned Sessions Court, as pleaded by the learned Amicus Curiae to extend the benefit of doubt to the appellant. The impugned judgment of conviction and order of sentence are not vulnerable to interference on any count. As such, appeal is fit to be dismissed. Accordingly, it is dismissed. Let the Lower Court Records be sent down to the court concerned forthwith along with a copy of this judgment. 14. Before parting, we record our appreciation for the valuable assistance rendered by the learned Amicus Curiae during hearing of this case. Her admissible legal remuneration be borne by the Secretary, High Court Legal Services Committee on production of a certified copy of the judgment along with an application within a period of four weeks from its receipt.