East Champaran. The State of Bihar v. with
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA ***** Against the judgment of conviction and order of sentence dated 23rd of May, 1990 passed by Sri Jaleshwar Ram, the learned 1st Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No. 72/26/1980/1987. Criminal Appeal (DB) No.246 of 1990 =========================================================== 1. Ram Bahadur Prasad Mahto @ Ram Bahadur Prasad, Son of Late Ram Baran Mahto. 2. Sheo Charan Mahto, Son of Prasad Mahto Both resident of Village – Godhwa, P.S. – Mufassil (Motihari), District – East Champaran. The State of Bihar Versus with .... .... Appellants .... .... Respondent Criminal Appeal (DB) No. 258 of 1990 =========================================================== Methura Mahto, Son of Bisun Mahto, Resident of Village – Godhwa Police Station – Mufassil (Motihari), District – East Champaran. .... .... Appellant The State of Bihar Versus .... .... Respondent =========================================================== Appearance : (In both the appeals) For the Appellants : Mr. Akhileshwar Pd. Singh, Sr. Advocate. Mr. Binod Kumar Singh, Advocate. Mrs. Anita Kumari Singh, Advocate. Mr. Abhishek Anand, Advocate. (in both the appeals) For the Respondent =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA : Mr. Ajay Mishra, APP. and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) ORAL JUDGMENT Date: 20-03-2013 Appellants Ram Bahadur Prasad Mahto, Sheo Charan Mahto and Mathura Mahto who have been found guilty for an offence Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 2 punishable under Section 302/34 of the IPC and each of them have been sentenced to undergo R.I. for life as well as to pay fine of Rs. 5000/- in default thereof to undergo R.I. for two years vide judgment dated 23.5.1990 passed by the learned 1st Additional Sessions Judge,
Legal Reasoning
Motihari in Sessions Trial No. 72/26 of 1980/1987, have challenged the same under two sets of appeal which have been heard together and
Decision
are being disposed of by a common judgment. 2. P.W. 11 Basudeo Mahto gave his fardbeyan (Ext. 9) on 6.5.1979 at about 10.45 P.M. at Sadar Hospital, Motihari alleging inter alia that on the same day at about 7.00 P.M., while he along with his co-villager Dwarika Mahto was returning to his village and reached near Godhwa Bengha bridge, he found his co-villager Ram Bahadur Prasad (at present Mukhiya), Dasrath Mahto (since deceased), Sheocharan Mahto, Mathura Mahto along with 4 – 5 unknown persons armed variously sitting. As soon as he crossed them, Ram Bahadur Prasad raised alarm to assault Dwarika Mahto and on account thereof others have encircled his bicycle and began to assault Dwarika Mahto with Lathi, Bhala and Farsa. He became confused seeing the same but subsequently raised alarm and requested the accused persons to let off because marriage ceremony of daughter of Dwarika Mahto was going to be held tomorrow. However, the accused persons did not pay heed to it and continued with assault over Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 3 the person of Dwarika Mahto. He had also disclosed that Dasrath (since deceased) was armed with Farsa, Sheocharan was armed with Bhala and Mathura was armed with Lathi. Dwarika Mahto after sustaining injury fell down in a ditch. On hue and cry his co-villager Etwari Sah, Sri Bhagwan Mahto, Wakil Miyan, Ramashray Das, Tulsi Sah, Hari Mahto, Ram Awtar Mahto (not examined), Kashi Mahto (not examined), Bir Bahadur Puri (not examined) rushed to spot who were also returning from Motihari. Then thereafter, the informant took the injured to Hospital. The motive for occurrence has been shown as Dwarika Mahto being the member of the executive had raised protest against the malfunctioning of Mukhiya Ram Bahadur Mahto which was taken seriously by the members of the Executive Committee and in the aforesaid background steps were being taken for removal of Ram Bahadur Pd. Mahto from the post of Mukhiya. 3. After registration of the case on the basis of the aforesaid fardbeyan, the police took up investigation and during midst thereof, it appears Dwarika Mahto died. After completing the investigation, charge sheet against the appellants including others were filed under Section 302 of the IPC along with other allied Sections inviting trial by the Court of Sessions which concluded by recording of conviction and sentence against the appellants while acquitting the remaining accused giving the privilege of benefit of Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 4 doubt. So far Dasrath Mahto is concerned, he was found dead during course of conduction of trial itself and on account thereof proceeding against him was dropped. 4. The defence case as is evident from mode of cross- examination as well as statement recorded under Section 313 of the Code of Criminal Procedure is of innocence as well as complete denial of the occurrence. It has further been pleaded that the place of occurrence happens to be the crime prone area and deceased might had fallen at the hands of criminals who during course of commission of robbery would have assaulted the deceased while decamping him from his belonging but under the garb of animosity with the witnesses, they have been falsely implicated. To show the animosity amongst the parties along with the witnesses, certain exhibits have also been brought up on record. 5. While assailing the judgment of conviction and sentence recorded by the learned trial court, manifold argument has been raised on behalf of appellants. The first and foremost ground is that on the same set of evidence other co-accused who also happens to be co-villager like the appellants covering similar set of allegations were given benefit of doubt on the plea that evidence of informant was not at all found to be inspiring as well as reliable so far their interests were considered, then in that event the same theory should Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 5 have been applied during appreciation of the evidence of the informant along with the witnesses while considering the case of the appellants. To support the same, it has been submitted that there happens to be serious infirmities persisting on the record to discredit the evidences of all the P.Ws. It has further been submitted that presence of all the witnesses at the place of occurrence in a manner as suggested by the informant was not at all probable as well as feasible and in that background, the status of those witnesses to be an eye witness got demolished. Not only this, the hostility of the witnesses was itself evident from their admission coupled with the documents exhibited by defence and in the aforesaid background, the witnesses happens to be inimical and so their testimony are fit to be disbelieved. 6. Then it has been submitted that there happens to be specific disclosure right from the fardbeyan that deceased Dwarika Mahto was assaulted by all the appellants including others by using the weapons having in their hands indiscriminately and on account thereof, at least there should have been presence of sharp cutting injury as well as sharp pointed injury in the background of the fact that one of the accused Dasrath Mahto was shown to be armed with Farsa, while Sheocharan Mahto was shown to be armed with Bhala. When post-mortem report (Ext. 2) is gone through with the evidence of P.W. 8 Dr. S.P. Singh, it is crystal clear that deceased had not Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 6 sustained any injury caused by sharp cutting weapon or sharp pointed weapon. That means to say the evidence of Doctor happens to be irreconcilable with the ocular evidence and after parallel scrutiny thereof it is found that the manner of occurrence as suggested by the prosecution is found to be totally controverted. 7. It has further been submitted that taking into account (Ext. 2) in consonance with the evidence of P.W. 8 and further admission on the part of the witnesses that deceased Dwarika Mahto had died during course of treatment, neither intention nor knowledge could be attributed against the appellants. Therefore, attributing the allegation of murder of Dwarika is not found to be justifiable consequent thereupon recording of conviction and sentencing the appellants for an offence of murder is not at all tenable. 8. At the other hand learned Additional PP while supporting the finding arrived at by the learned trial court had submitted that the learned trial court had minutely scrutinized the materials available on the record and then had concluded its finding against the appellants while the remaining were allowed to avail the benefit of doubt. Then it has been submitted that injury happens to be guiding factor to suggest that on account of sustaining of particular injury, the deceased had died but that injury can’t be considered as a concluding factor to decide the fate of prosecution case when there Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 7 happens to be presence of eye witnesses in support of the prosecution case. After all, ocular evidence has got primacy over medical evidence. Furthermore, the opinion of an expert may vary on account of location, size and nature of the injuries as well as the weapon used which could be seen in the background of the evidence deposed by eye witnesses during course of trial. So submitted that the learned trial court while arriving at a conclusion that it happens to be a case falling under category of murder had properly dealt with the ocular evidence in consonance with the medical evidence. Hence, the aforesaid finding did not require interference. 9. In order to substantiate its case the prosecution had examined altogether 12 P.Ws. out of whom P.W. 1 is Etbari Sah, P.W. 2 is Hari Mahto, P.W. 3 is Wakil Mian, P.W. 4 is Ramashray Das, P.W. 5 is Tulsi Sah, P.W. 6 is Girja Nand Prasad, P.W. 7 is Sree Bhagwan Mahto, P.W. 8 is Dr. S.P. Singh, P.W. 9 is Ramdeo Chaudhary, P.W. 10 is Kuppa Mian, P.W. 11 is Basudeo Mahto and P.W. 12 is Md. Atik Bari Khan side by side also exhibited Ext. 1 series signature of respective witnesses over respective documents, Ext. 2 post-mortem examination report, Ext. 3 Post-Card, Ext. 4 proceeding book, Ext. 5 endorsement over Ext. 3, Ext. 6 series proceeding of meetings held on different dates, Ext. 7 certificate issued by Assistant Registrar, Ext. 8 postal registration certificate, Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 8 Ext. 9 fardbeyan, Ext. 10 inquest report, Ext. 11 series different seizure lists, Ext. 12 sketch map. Defence had also exhibited Ext. A certified copy of deposition of Wakil Miyan with regard to case no. 765/1977, A/1 deposition of Ramashray Das with regard to Trial No. 1728/1979, Ext. B certified copy of judgment of G.R. No. 1137 of 1965 and Ext. B/1 judgment of Sessions Trial No. 101/1964. 10. After hearing both the sides as well as going through the oral as well as documentary evidence, the status of appellant Ram Bahadur Prasad Mahto as the then Mukhiya of Godhwa Panchayat happens to be not under dispute and in likewise manner the sanctity of Ext. 3 to Ext. 8 are found immuned. That means to say some sort of undercurrent was flowing at the Gram Panchayat level having identifiable pro/against the then Mukhiya, appellant Ram Bahadur Prasad Mahto. The aforesaid event has also been duly enlightened right from inception of the instant case as motive. In our considered view that part of evidence happens to be consistent. 11. Now coming to the ocular evidence, right from the fardbeyan it is evident that no specific allegation has been attributed against any of the accused/appellant rather they all have been jointly alleged that they have had assaulted the deceased Dwarika Mahto with the weapon having in their hands. All the witnesses have categorically Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 9 stated that Dasrath was armed with Farsa while Sheocharan was armed with Bhala. Rest of the appellants including those who had already been acquitted, were armed with Lathi and they gave repeated blow over the person of deceased Dwarika Mahto. There is no ambiguity amongst the P.Ws. on this very score nor the defence could able to demolish their testimony so far this part of allegation is concerned. Hence, the narration of the prosecution story as propounded is found to be substantiated in its literal sense. However, taking into account the admission on the part of the witnesses as well as document exhibited on behalf of appellant, some sort of hostile atmosphere is found to be prevailing amongst the prosecution witnesses with accused/appellant. In the aforesaid some sort of corroboration is needed. 12. To test the veracity of the ocular evidence, when Ext. 2 has been gone through, the doctor P.W. 8 during course of conduction of post-mortem had found following ante-mortem injuries over the dead body of the deceased : (I). An stitched wound on the right side of skull; (II). Bruise on the left elbow with dressing (III). Bruise on the right arm with dressing (IV). Bruise on the left leg with dressing (V). Fracture of the right radius and ulna with Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 10 swelling in lower end of the forearm (VI). Bruise on the middle finger with dressing. On dissection, there was lacerated wound on the skull with fracture of the right parietal bone and congestion of the brain covering membrance. There was fracture of the right radius and ulna at lower end. In the opinion of doctor, deceased died on account of shock and haemorrhage due to aforesaid injuries. During cross- examination P.W. 8 fairly stated that none of the injuries have been identified to be an outcome of sharp pointed as well as sharp cutting injury. That means to say whatever injuries have been found over the person of deceased that happens to be caused by hard and blunt substances. However from the evidence of doctor, it is evident that he had not opined that the aforesaid injuries were sufficient to cause death in ordinary course of nature. This lent to a finding that none of the injuries found were fatal, grievous, dangerous to life. 13. Unfortunately, neither the treating doctor has been examined in this case on behalf of prosecution nor the prosecution cared to exhibit the injury report prepared by the aforesaid doctor, who had treated the deceased and in absence thereof, it is found to be difficult to infer that any of the injuries found by P.W. 8 over dead body of deceased Dwarika was caused by sharp cutting Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 11 weapon or by sharp pointed weapon, contrary to it, the P.W. 8 during course of cross-examination found it caused by hard and blunt weapon. 14. It is worth mention to note that none of the P.W. had stated that back portion of Farsa was ever used during course of assault nor Bhala was used as a Lathi. In a case Hallu and Others Vs. State of Madhya Pradesh (1974) 4 SCC, at para-11, it has been held: The post mortem report prepared by Dr. N. Jain shows that on the body of Jagdeo were found three bruises and a hematoma. On the body of Padum were found four lacerated wounds and two bruises. According to the eye-witnesses the two men were attacked with lathis, spears and axes but that clearly stands falsified by the medical evidence. Not one of the injuries found on the person of Jagdeo and Padum could be caused by a spear or an axe. The High Court however refused to attach any importance to this aspect of the matter by saying that the witnesses had not stated that “the miscreants dealt axe blows from the sharp-side or used the spear as a piercing weapon”. According to the High Court axes and spears may have been used from the blunt side and therefore the evidence of the eye-witnesses Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 12 could safely be accepted. We should have thought that normally, when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon. 15. While considering the effect of inconsistency in between ocular as well as medical evidence in case of Kuriya Vs. State of Rajasthan (2012) 10 SCC 433 at para 19, it has been held: This Court has consistently taken the view that except where it is totally irreconcilable with the medical evidence, oral evidence has primacy. In Abdul Sayeed V. State of M.P. [2(2010)10 SCC259] this Court held as under: (SCC p. 274, paras 38-40) “38. In State of U.P. v. Hari Chand [3(2009)13 SCC 542] this Court reiterated the aforementioned position of law and stated that: (SCC p. 545, para 13) „13. … In any event unless the oral evidence is totally irreconcilable with the medical Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 13 evidence, it has primacy.‟ 39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. 16. In the aforesaid background, when the evidence of doctor P.W. 8 is taken together with the ocular evidence it is crystal clear that it rules out the manner of occurrence as advanced by the prosecution. 17. In State of Punjab vs. Jagir Singh (1974) 3 SCC 277 at para 23, it has been held: “23. A criminal trial is not like a fairy tale wherein one is free to give flight to one‟s imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 14 crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. 18. Now reversing back to the evidence, it could conclusively be held that inspite of having dangerous as well as deadly weapon in their possession, appellants have not used the same. In the aforesaid background, though deceased died during course of treatment, it could safely be inferred that during commission of occurrence, appellant neither carried intention nor the knowledge to commit murder of deceased Dwarika. In absence of cause of death, as is apparent from the evidence of P.W. 8, this fact is found additionally supported with. However, presence of injury no. 1 lent an assurance for concluding ourselves after scrutinizing the ocular as well as Patna High Court CR. APP (DB) No.246 of 1990 dt.20-03-2013 15 medical evidence, that the appellants be held guilty for causing grievous injury to deceased Dwarika by means of hard and blunt substance. 19. Hence, all the appellants namely Ram Bahadur Prasad Mahto, Sheo Charan Mahto and Mathura Mahto are found and hold guilty for an offence punishable under Section 325/34 of the IPC and on account thereof are directed to undergo R.I. for one year each as well as they each are also directed to pay fine of Rs. 5000/- each in default thereof to undergo R.I. for three months. The amount if deposited, half of the same will be paid to the wife of deceased Dwarika Mahto on proper identification by the learned trial court. 20. With the aforesaid modification, these two appeals are dismissed. Appellants are on bail hence their bail bonds are cancelled. They are directed to surrender before the learned lower court to serve out remaining part of sentence. The period already undergone during course of trial will be set off in accordance with Section 428 of the Code of Criminal Procedure. (Shyam Kishore Sharma, J.) (Aditya Kumar Trivedi, J.) Patna High Court, Patna Dated the 20.03.2013, A.F.R KKSINHA/-