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2019 DIGILAW 898 (JHR)

Bhim Mahto v. State Of Jharkhand

2019-04-22

H.C.MISHRA, SANJAY KUMAR DWIVEDI

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JUDGMENT 1. As both these appeals arise out of the same impugned Judgement, they have been heard together, and are being disposed of by this common Judgement. 2. Heard learned counsel for the appellants and the learned counsel for the State in both these appeals. 3. The appellants are aggrieved by the impugned Judgement of conviction dated 17 th August, 2007 and Order of sentence dated 22.08.2007, passed by the learned Additional Sessions Judge, F.T.C. No-II, Seraikella, in S.T No. 46 of 2005, whereby, all these appellants have been found guilty and convicted for the offence under Sections 302/34 of the Indian Penal Code . Upon hearing on the point of sentence, the appellants have been sentenced to undergo rigorous imprisonment for life, with fine of Rs.5,000/- each, for the said offence. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Shambhu Mahato, the son of the deceased, Pitowash Mahato, recorded at the place of occurrence in village Yadudih, P.S. Rajnagar, District Seraikella-Kharsawan, on 8.7.2004 at 11:45 hours, wherein the informant has stated that on the previous day, i.e., on 7.7.2004 at about 8:00 P.M., in the night, he was taking meal in his house along with his family members. In the meantime, he heard his father shouting from their other house situated at a distance of about 200 yards, whereupon he went to his brother Nilamber Mahato and cousin Leda Mahato, informing them that about the same, and thereafter, all of them went towards the house of their father, and found him lying on the verandah of the house in the pool of blood, with bleeding injuries on his neck and stomach. His father had died at the spot. In the courtyard of the house, one bloodstained sword and one torch were also found, but they did not find anyone there. The informant has stated that they had no enmity with anyone, and some unknown persons had committed the murder of his father and had fled away. On the basis of the fardbeyan of the informant, Rajnagar P.S. Case No. of 2004, corresponding to G.R. No. 486 of 2004, was instituted for the offence under Sections 302/34 of the Indian Penal Code, against unknown, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case against these accused persons. 5. On the basis of the fardbeyan of the informant, Rajnagar P.S. Case No. of 2004, corresponding to G.R. No. 486 of 2004, was instituted for the offence under Sections 302/34 of the Indian Penal Code, against unknown, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case against these accused persons. 5. After commitment of the case to the Court of Session, charge was framed against the accused appellants for the offence under Sections 302/34 of the Indian Penal Code, and upon the accused persons'' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, 12 witnesses were examined by the prosecution, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 6. P.W.-4 Shambhu Mahato is the informant in the case and the son of the deceased. Though according to the FIR, he had not seen anyone committing the murder of his father, nor there was any enmity with anyone, and the FIR was instituted against unknown, but this witness has deposed in the Court as eyewitness to the occurrence, stating that the occurrence had taken place in the night at about 8:00 P.M. He heard the alarm raised by his father, whereupon he, along with his sister Jamuna, rushed towards the house of his father, where he saw that the accused persons, Bhim Mahato, Doma Mahato, Mukru Gorsera, Jilal Mahato, Gudru Lohar (Hundru Lohar) and Chhutain Toppo were assaulting his father. He saw the occurrence in the light of a lantern, which was burning there. This witness has stated that he could not gain the courage to go near the place of occurrence, and he concealed himself in the bamboo bushes. Thereafter, he ran towards the house of his brother Nilamber Mahato and informed him about the occurrence. He was returning to the place of occurrence along with his brother Nilamber Mahato, when he saw all the accused persons fleeing away, and they threatened them not to disclose about the occurrence to anyone, otherwise they would also meet the same fate. Thereafter, he went to the place of occurrence along with his brother and his sister Jamuna, where he found his father dead with the bleeding injuries in his neck and stomach. There was a sword and a torch lying there. Thereafter, he went to the place of occurrence along with his brother and his sister Jamuna, where he found his father dead with the bleeding injuries in his neck and stomach. There was a sword and a torch lying there. This witness has further stated that on the next day at about 10:00 A.M, the police came and recorded his fardbeyan which was read over to him and finding the same true, he had put his signature. His brother Nilamber Mahato also put his signature on the fardbeyan as a witness. He has identified the signatures on the fardbeyan, which were earlier marked Exhibits 1/2 and 1/3 respectively. This witness has stated that at the time of giving the fardbeyan, he was very scared and he had not given the true statement before the police, and after the occurrence, he left the village and settled in the village Krishnapur with his family, due to fear. This witness has further stated that there was previous enmity between his father and the accused Bhim Mahato, as the son of the accused Bhim Mahato was bitten by a dog, and he was under the impression that due to the witchcraft played by his father, the dog had bitten his son. He has stated that all the accused persons are closely related. He has also stated that he had earlier seen the same sword in the house of Doma Mahato. He has also stated that his statement was recorded thrice by the police, and when he gained courage, he gave the true statement before the police. He has identified the accused persons in the Court. This witness was put to extensive cross examination in which he has stated that he had given the statement before the police after about one month of the occurrence, naming the accused persons. His attention was also drawn towards his statement made before the police which he has replied. He has denied the suggestion of making false evidence. 7. P.W.-3 Nilamber Mahato, the other son of the deceased, P.W.-5 Subhadra Mahato, the wife of the informant and daughter-in-law of the deceased and P.W.-6 Jamuna Mahato, the daughter of the deceased, have also supported the prosecution case, in more or less the same manner as stated by P.W.-4 Shambhu Mahato. He has denied the suggestion of making false evidence. 7. P.W.-3 Nilamber Mahato, the other son of the deceased, P.W.-5 Subhadra Mahato, the wife of the informant and daughter-in-law of the deceased and P.W.-6 Jamuna Mahato, the daughter of the deceased, have also supported the prosecution case, in more or less the same manner as stated by P.W.-4 Shambhu Mahato. P.W.-3 Nilamber Mahato has stated that he was informed by his brother that their father was being assaulted by the accused persons, whereupon he rushed there and saw the aforesaid accused persons fleeing away, who also threatened them, whereas P.W.-5 Subhadra Mahato and P.W.-6 Jamuna Mahato have supported the case as eyewitnesses to the occurrence, stating that they had gone to the place of occurrence along with Shambhu Mahato, and had seen the occurrence in which the accused persons were assaulting the deceased. P.W.-5 Subhadra Mahato has also stated that Doma Mahato had assaulted her father-in-law by sword, whereas the other accused persons were holding him. Both the lady witnesses have stated that at the time of occurrence, they had concealed themselves in the bamboo bushes. They have also identified the accused persons in the Court. In their cross-examinations, their attention was drawn towards their statements given before the police, which they have replied. They have denied the suggestion of giving false evidence. 8. P.W.-1 Ghanshyam Mahato and P.W.-2 Leda Mahato, the nephews of the deceased, P.W.-7 Mansa Mahato and P.W.-8 Laxman Mahato have only stated that they had seen the dead body of the deceased with the injuries. P.W.-1 Ghanshyam Mahato and P.W.-8 Laxman Mahato are also the witnesses to the seizure list of the bloodstained sword and torch and they have identified their signatures on the seizure list, which were marked Exhibits 1 & 1/ 1 respectively. P.W.-2 Leda Mahato has also stated about the seizure of the torch and the bloodstained sword by the police. This witness has also stated that the people were saying that the sword belonged to Doman Mahato. He has identified the accused Doman Mahato and Bhim Mahato in the Court. P.W.-7 Mansa Mahato has stated that after about one month of the occurrence, he was informed that these accused persons had committed the murder of the deceased due to some enmity. He has identified the accused Doman Mahato and Bhim Mahato in the Court. P.W.-7 Mansa Mahato has stated that after about one month of the occurrence, he was informed that these accused persons had committed the murder of the deceased due to some enmity. P.W.-8 Laxman Mahato is also the witness to the inquest report of the dead body, on which he has identified his signature and the signature of Ghanshyam, which were marked Exhibits 1/4 and 1/5 respectively. Thus, except P.W.-2 Leda Mahato and P.W.-7 Mansa Mahato, the other two witnesses have not stated anything against the accused persons. 9. P.W.-11 Dr. Pranav Kumar had conducted the post-mortem examination on the dead body of the deceased on 8.7.2004, and suffice would be to say that he had found cut injuries on the dead body of the deceased on the stomach and the right shoulder, which were sufficient in the ordinary course of nature to cause the death of the deceased. He has proved the post-mortem report to be in his pen and signature, which was marked as Exhibit-4. 10. P.W.-9 Mahesh Prasad Singh, P.W.-10 Subodh Lakra and P.W.-12 Arvind Kumar Manjhi are the I.Os of the case, out of whom, P.W.-9 Mahesh Prasad Singh had only received the post-mortem report and had not made any investigation. P.W.-10 Subodh Lakra had recorded the confessional statement of the accused Bhim Mahato, which he has proved and the same was marked Exhibit-2. This witness has also stated that he had recorded the re-statement of the informant on 23.2.2005 (i.e., after about eight months from the date of occurrence), and had also recorded the statements of the witnesses Nilamber Mahato, Subhadra Mahato and Jamuna Mahato on the same day. Thus, it appears that the accused persons have been named by the sons, daughter and daughter-in-law of the deceased, before the police after about eight months of the occurrence. In his cross-examination also, this witness has stated that he had recorded the statements of Shambhu Mahato, Jamuna Mahato, Subhadra Mahato and Nilamber Mahato on 23.2.2005. Some contradictions in the statements of these witnesses have also been taken from him. He has also stated that he had sent the bloodstained sword for forensic examination, but he had not received the report. Some contradictions in the statements of these witnesses have also been taken from him. He has also stated that he had sent the bloodstained sword for forensic examination, but he had not received the report. This witness has also admitted in his cross-examination that after recording the statements of these witnesses, he had not visited the place of occurrence for ascertaining the truth. He has denied the suggestion of making faulty investigation. P.W.-12 Arvind Kumar Manjhi had recorded the fardbeyan of the informant and had done the initial investigation. He has proved the fardbeyan, the endorsement on the fardbeyan and the formal FIR, which were marked as Exhibits 5, 6 and 7 respectively. He had also prepared the inquest report of the dead body, which he has proved and the same was marked Exhibit-1/6. He inspected the place of occurrence and had seized one sword and one torch from the place of occurrence, and prepared the seizure list, which he has proved, and the same was marked as Exhibit-8. He has given the details of the place of occurrence, where he had found the dead body of the deceased. He has stated that he had recorded the statements of the witnesses Shambhu Mahato and Nilamber Mahato on 5.8.2004 (i.e., about one month from the date of occurrence). The cross-examination of this witness shows that he had visited the village of occurrence several times, but he did not get any clue till 27.7.2004. On 5.8.2004, he had again recorded the statements of the informant Shambu Mahato and Nilamber Mahato, but he has not given any reasons in the case diary as to why their statements were recorded again. The contradictions of the statements of the eyewitnesses have also been taken from this witness, and he has admitted in his cross-examination that during his entire investigation, he had not found any eyewitness to the occurrence. 11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused had denied the evidence against them. No evidence was adduced by the defence. On the basis of the materials on record, the appellants have been convicted and sentenced by the Trial Court below as aforesaid. 12. 11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused had denied the evidence against them. No evidence was adduced by the defence. On the basis of the materials on record, the appellants have been convicted and sentenced by the Trial Court below as aforesaid. 12. Learned counsel for the appellants has submitted that the evidence of none of the eyewitnesses is reliable in the case, inasmuch as, they have tried to become the eyewitnesses to the occurrence after about eight months of the occurrence, and have falsely implicated the accused persons. The evidence of the I.O, P.W.-12 Arvind Kumar Manjhi shows that he had visited the village of occurrence several times but had not found any clue till 27.7.2004, and there was no eyewitness to the occurrence, till he investigated the case. Learned counsel accordingly, submitted that this is clearly a case of false implication of the accused persons, and the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 13. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the P.W.-4 Shambhu Mahato, the informant, P.W.-5 Subhadra Mahato, the daughter-in-law of the deceased and P.W.-6 Jamuna Mahato, the daughter of the deceased, have fully supported the prosecution case as eyewitnesses to the occurrence, and P.W.-3 Nilamber Mahato had also seen the accused persons fleeing away from the place of occurrence, and their ocular evidence is fully corroborated by the medical evidence of P.W.-11 Dr. Pranav Kumar and the post-mortem report proved by him as Exhibit-4. Learned counsel submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court. 14. Having heard the learned counsels for both the sides and upon going through the materials on record, we find that according to the fardbeyan of the informant which was given on the very next day of the occurrence, there was neither any enmity between the parties, nor there was any clue about the accused persons, and accordingly, the F.I.R. was lodged against unknown. The evidence of P.W.-12 Arvind Kumar Manjhi who is the main I.O., clearly shows that after recording the FIR on 8.7.2004 till 27.7.2004, he had visited the village several times, but no clue about the accused persons could be found by him. On 8.4.2004 he recorded the statements of the Shambhu Mahato and Nilamber Mahato again, but there appears to be no reason for recording their statements on that date. Again the evidence of P.W.-10 Subodh Lakra, the other I.O., shows that he had recorded the statements of the informant Shambhu Mahato, Jamuna Mahato, Subhadra Mahato and Nilamber Mahato on 23.2.2005, i.e., after about eight months from the date of occurrence, which had taken place on 7.7.2004, when it appears that the accused persons had been named by the highly interested witnesses, who are the sons, daughter-in-law and daughter of the deceased, before the police. This I.O. has admitted in his cross-examination that after recording the statements of these witnesses, he had not visited the place of occurrence for ascertaining the truth. Only these highly interested witnesses have later support the case as eyewitnesses to the occurrence in the Court. We are of the considered view that their evidences are not worth any reliance and the conviction of the accused persons cannot be based on the evidence of these witnesses. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 15. For the foregoing reasons, the impugned Judgement of conviction dated 17 th August, 2007, and Order of sentence dated 22.08.2007, passed by the learned Additional Sessions Judge, F.T.C. No-II, Seraikella, in S.T No. 46 of 2005, convicting and sentencing the appellants, Bhim Mahto, Doma Mahto, Jilal Mahto, Hundru Lohar and Chhutain Topno @ Toppo, for the offence under Sections 302/34 of the Indian Penal Code, are hereby, set aside. Consequently, all these appellants are found not guilty and they are acquitted of the charge. The appellant Doma Mahto is still in custody, undergoing the sentence. He is directed to be released and set at liberty forthwith if his detention is not required in any other case. The appellants, Bhim Mahto, Jilal Mahto, Hundru Lohar and Chhutain Topno @ Toppo, are on bail and they are discharged from the liabilities of their respective bail bonds. 16. Both these appeals are accordingly, allowed. He is directed to be released and set at liberty forthwith if his detention is not required in any other case. The appellants, Bhim Mahto, Jilal Mahto, Hundru Lohar and Chhutain Topno @ Toppo, are on bail and they are discharged from the liabilities of their respective bail bonds. 16. Both these appeals are accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.