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2020 DIGILAW 169 (JHR)

Devendranath Mahto v. State Of Jharkhand

2020-01-27

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT Shree Chandrashekhar, J. - The sole appellant has been convicted and sentenced to R.I for life under section 302 of the Indian Penal Code for committing murder of Nakul Mahto. 2. The prosecution''s case is disclosed by the informant, who is son of Nakul Mahto, in his fard-beyan which was recorded on 08.10.2000 at about 11:00 hrs. in his house. On the basis of his fard-beyan, Bundu P.S Case No.83 of 2000 was registered against the appellant under section 302 of the Indian Penal Code. During the trial the prosecution has examined 9 witnesses; the informant is P.W 6. 3. The accused-appellant has set-up a plea of alibi and he has examined 4 witnesses to prove that in the night of the incident he was at Ranchi in the house of his brother-in-law Rajendra Mahto. 4. The informant has stated in his fard-beyan that in the night of 07.10.2000 he was sleeping with his father on a cot. The accused was also sleeping in the same room on another cot. In the mid-night when he felt writhing of his father he woke-up and saw that the accused was cutting neck of his father with a farsa. The accused fled away from the house through the window. Due to fear he did not inform his family members about the incident and in the morning he told Shashikala Devi, his elder sister-in-law, about the occurrence. In the court the informant has narrated a similar story about the occurrence. At the time of his examination in the court he was aged about 12-13 years and the learned Sessions Judge having satisfied himself with his maturity has recorded his testimony. In his examination-in-chief he has reiterated that in the night of 07.10.2000 he was sleeping with his father and the accused was also sleeping in the same room on another cot. He has stated that he has seen the appellant cutting neck of his father and next day morning he has informed about the occurrence to his elder sister-in-law. 5. The informant is the solitary eye-witness in this case. He has stated that he has seen the appellant cutting neck of his father and next day morning he has informed about the occurrence to his elder sister-in-law. 5. The informant is the solitary eye-witness in this case. The prosecution has sought to corroborate his testimony through evidence of Nutan Kishore Mahto-P.W 1, who is cousin of the informant, Suresh Prasad-P.W 2, who is a neighbour, Ram Krishan Mahto-P.W 3, who is elder brother of the deceased, Shashikala Devi-P.W 4, who is the elder sister-in-law of the informant and Govind Mahto-P.W 7, who is elder son of the deceased. The sister of the informant, namely, Lakhimani Devi-P.W 5 is a formal witness. 6. P.W 1 has stated that in the night of 07.10.2000 he was at home. His house is at a distance of 25 hands away from the house of the informant. The deceased, who is his uncle, has employed the accused for looking after his agricultural field and at the time of the incident he was posted at Khunti. Next day morning his wife informed him that son of the deceased has informed her that his father has been killed. He has further stated that the informant has told him that in the mid-night when he found that his father is writhing he woke-up and saw the accused. The accused had threatened to kill him if he raised hullah. His wife who has been examined as P.W 4 has corroborated his testimony to the extent that the informant informed her next day morning about murder of his father. She has stated that the informant has told her that last night the accused has killed his father. P.W 2 is a seizure-witness. He has stated that the police has seized only a lungi in his presence and nothing else. The investigating officer-P.W 9 has admitted in his cross-examination that he has seized blood-stained earth from the place of occurrence, however, he has not sent the blood-stained earth for forensic examination. P.W 3 has stated that the informant has informed him about the occurrence next day when he had taken his cattle to the river. The informant came there and informed him about the occurrence. In his cross-examination he says that he had left home at about 5:00 a.m. in the morning and at that time he had no information about the incident. The informant came there and informed him about the occurrence. In his cross-examination he says that he had left home at about 5:00 a.m. in the morning and at that time he had no information about the incident. The elder brother of the informant who has been examined as P.W 7 has stated that next day at about 7:00 a.m. his cousin Nutan Kishore Mahto came to Ranchi and informed him about the occurrence. 7. Dr. Tulsi Mahto-P.W 8, who has conducted the post-mortem examination on 09.10.2000, has found the following injuries on Nakul Mahto: Incised wound: (i) 10 c.m x 3 c.m x bone deep over the upper part of front of neck situated transversely cutting the soft tissues, blood vessels, trachea, Oesophagus and 3rd cervical vertebrae completely including the spinal chord with infiltration of blood and blood clot in the soft tissues and bony tissues at the site of the injury. (ii) 5 c.m. x c.m x soft tissue over the chin. 8. In the opinion of the doctor, all injuries were ante-mortem in nature, caused by heavy sharp-cutting weapon, may be, farsa and the time elapsed since death was 18 to 48 hours from the post-mortem examination. 9. The conviction of an accused can be based on testimony of a solitary eye-witness and there is no universal rule that conviction of an accused cannot be recorded on the basis of testimony of a child witness, but then, as held by the Supreme Court in " Panchhi and others Vs. State of U.P, (1998) 7 SCC 177 ", as a rule of prudence the court should seek corroboration to the evidence of a child witness. In " State of U.P Vs. Ashok Dixit and another, (2000) 3 SCC 70 ", the Supreme Court has observed that testimony of a child witness must be examined carefully as a child may be swayed by what others tell him. Since a child witness is an easy prey to tutoring, the Supreme Court has observed that wisdom requires that evidence of a child witness must be adequately corroborated by some other independent evidence. 10. In the present case, we find that the informant is not a reliable and trustworthy witness and there are several gaping holes in the prosecution''s case. 11. 10. In the present case, we find that the informant is not a reliable and trustworthy witness and there are several gaping holes in the prosecution''s case. 11. The informant, who is a child witness, has admitted during his cross-examination that he is obedient to his elder brother-P.W 7 and normally he does whatever his elder brother tells him. He has further admitted that he is not staying with his mother rather he is staying with his elder brother at Ranchi. His mother is second wife of his father and previously there was murderous attack on his father. The prosecution has challenged his presence in the house in the night of the occurrence. P.W 1, P.W 2 and P.W 3 have stated that they have seen blood-stains on the cot and the mat. The informant has claimed that he was sleeping on the same cot with his father, however, no blood-stains was found on his clothes. The investigating officer has not seized the cot or the mat. According to the prosecution the appellant was sleeping in the same room on another cot, but the investigating officer has stated that he has found only one cot in the room in which dead body of Nakul Mahto was found. And above all, except the informant none of the prosecution witnesses has stated that they have found the accused absconding next day of the occurrence or that the accused was sleeping in the same room in which the informant was sleeping with his father in the night of 07.10.2000. P.W 1, P.W 2, P.W 3 and P.W 4 are relatives of the deceased and in the night of the incident they were at home. Their house is adjacent to the house of the deceased and it has come in the evidence of the prosecution witnesses that there are about hundred houses in the village. The informant has admitted that there is a chowkidar in the village and puja was performed in the Durga temple which is in front of his house. On such facts, the conduct of the informant in not informing the other family members in the same night is against the normal human conduct. He has stated that the accused had threatened to kill him if he raises hullah, but in the same breath he says that after committing murder of his father the accused had fled away through the window. He has stated that the accused had threatened to kill him if he raises hullah, but in the same breath he says that after committing murder of his father the accused had fled away through the window. Therefore, it can be safely assumed that he had no threat thereafter. His saying that he has slept with his father on the same cot after he was killed is also highly unlikely and unbelievable for a son could not have slept on the same cot with the dead body of his father. 12. In view of the above inconsistencies in the testimony of the informant whose conduct is quite unnatural, conviction of the appellant cannot be recorded on the basis of his evidence. 13. There is another aspect of the matter which creates a doubt on the prosecution''s case. 14. P.W 3, P.W 4 and P.W 7 were informed about the occurrence by the informant at different places and different time the next day. P.W 4 has stated that the informant told her about murder of his father at 5:00 a.m. the next day and P.W 1 has stated that the next day of the occurrence his wife, who is P.W 4, has told him about murder of Nakul Mahto. P.W 3 has stated that the informant came to the river and told him about murder of Nakul Mahto. But no one has gone to the police station and lodged a report till P.W 7 has arrived in the village. It needs to be recorded here that Nutan Kishore Mahto-P.W 1 had gone to Ranchi the next day and informed him about murder of their father and then he came to his village. The investigating officer has stated in the court that he has proceeded for the place of occurrence on receiving a rumor and by the time he left the police station no family member of the informant had come to the police station. The aforesaid facts as spoken by the prosecution witnesses raise a doubt that after deliberations the appellant has been implicated in this case. It is also relevant to record that the defence witnesses has stated that in the night of 07.10.2000 the appellant was with them at Ranchi. 15. We hold that the informant is not a reliable witness and, the prosecution has failed to prove the charge against the appellant. It is also relevant to record that the defence witnesses has stated that in the night of 07.10.2000 the appellant was with them at Ranchi. 15. We hold that the informant is not a reliable witness and, the prosecution has failed to prove the charge against the appellant. Therefore, conviction of the appellant under section 302 of the Indian Penal Code is set-aside. 16. The appellant, namely, Devendranath Mahto, is acquitted of the charge framed against him under section 302 of the Indian Penal Code in Sessions Trial No.160 of 2001 for committing murder of Nakul Mahto. 17. Accordingly, the appellant, who is on bail, shall stand discharged of liability of the bail-bonds furnished by him. 16. In the result, Criminal Appeal (D.B) No.56 of 2002 is allowed. 18. Let a copy of the judgment be transmitted to the court concerned through ''Fax''. 19. Let lower-court records be sent to the court concerned forthwith.