High Court
Case Details
Criminal Appeal (D.B.) No. 962 of 2003 With Criminal Appeal (D.B.) No. 587 of 2003 [Arising out of judgment of conviction and order of sentence both dated 10.04.2003 passed by learned Additional Sessions Judge, Fast Track Court No.V, Deoghar in Sessions Case Nos. 142 of 2000 / 260 of 2002] Criminal Appeal (D.B.) No. 962 of 2003 1. Kalkatti Mahto son of Jugal Mahto, resident of Village Tilauna, P.S. Madhupur, District Deoghar 2. Ramdeo Mahto son of Bhuneshwar Mahto 3. Satya Narayan Mahto son of Ritlal Mahto Both resident of Village Beharua Talah, Mouza Chitarpur, P.S. Madhupur, District Deoghar .... --Versus-- The State of Jharkhand With …. …. …. Respondent .... …. Appellants Criminal Appeal (D.B.) No. 587 of 2003 1. Umesh Mahto son of Ritlal Mahto 2. Rit Lal Mahto son of Suther Mahto 3. Vasudeo Mahto son of Muneshwar Mahto 4. Sukhdeo Mahto son of Muneshwar Mahto 5. Sita Ram Mahto son of Bulaki Mahto 6. Inder Mahto son of Bulaki Mahto 7. Daro Mahto son of Bulaki Mahto 8. Baleshwar Mahto son of Yugal Mahto All resident of Village Baharua Telah, Mouza Chitarpur, P.S. Madhupur, District Deoghar except appellant nos. 10 and 11 who are resident of Village Tilona, P.S. Madhupur, District Deoghar --Versus-- The State of Jharkhand …. …. …. Respondent .... .... …. Appellants For the Appellants For the State For the Informant
Legal Reasoning
: Mr. Binod Kumar Jha, Advocate : Mr. Abhay Kumar Tiwary, A.P.P. [In Criminal Appeal (D.B.) No. 962 of 2003] Mr. Sunil Kumar Dubey, A.P.P. [In Criminal Appeal (D.B.) No. 587 of 2003] : Ms. Ritu Kumar, Advocate Mr. S.B. Deo, Advocate ----- PRESENT: SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. ----- 1 JUDGMENT Reserved on: 04.12.2024 Pronounced On: 10.12.2024 Per Gautam Kumar Choudhary, J. Both these appeals are arising out of common judgment of conviction and sentence passed in Sessions Case Nos.142 of 2000 / 260 of 2002, whereby and whereunder appellants have been convicted and sentenced under Sections 147 and 302/ 149 of the IPC. Appellant- Kalkatti Mahto, Baleshwar Mahto, Inder Mahto, Sitaram Mahto, Sukhdeo Mahto, Ramdeo Mahto, Ritlal Mahto and Satyanarayan Mahto have also been convicted under Section 148 IPC. 2. The informant (P.W. 8) is the brother of the deceased. As per the FIR, on 24.06.1999 in the morning at 8 O’clock, his brother left his home in the morning for delivering milk in different households. After sometime, the informant also went to see his agricultural field. While he was in his field, on hulla, he saw that on the Budai Devipur Road, someone was being assaulted by 10 persons and when he rushed there, he saw the appellants conjointly assaulting his brother. Appellant- Ram Deo Mahto was armed with sword, appellant- Satya Narayan Mahto with Farsa and rest of the appellants were armed with lathi, iron rod and pipe. Out of fear, he hid himself behind the bush and only after the appellants thinking his brother to be dead left the place, he went there. He was taken for treatment, but on the way, he succumbed to his injuries. 3. On the basis of the written report of the informant, Madhupur P.S. Case No.105 of 1999 was registered against all the appellants under Sections 147, 148, 149, 341 and 302 of the IPC. Police after investigation found the case to be true and submitted charge-sheet against the appellants who were put on trial for the offences under Sections 147, 148, 149 and 302 of the IPC. 4. Altogether twelve witnesses have been examined on behalf of the prosecution and the relevant documents including post-mortem examination report, fardbeyan and inquest report have been adduced 2 into evidence and marked as Exhibits. 5. After the prosecution evidence, the statement of the accused was recorded under Section 313 Cr. P. C. Defence is of innocence, but no specific defence has been pleaded. One defence witness, namely, Baleshwar Sah has been examined to prove that Ritlal Mahto was all along at the work place at Parsiya Colliery (West Bengal) from 23.06.1999 to 26.06.1999. 6. It is argued by the learned counsel on behalf of the appellants that P.W. 1, P.W. 2 and P.W. 5 have not supported the case of prosecution. P.W. 3 to P.W. 10 are family members of the informant and they are not the eye-witness to the occurrence. 7. It is submitted that prosecution case rests upon the solitary account of P.W. 8 (informant) who claims himself to be the eyewitness of the incidence. Furthermore, the deceased was a veteran criminal and was involved in many cases of Section 395 IPC. The first I.O. namely, M. A. Razzaque who registered the case, examined the informant and prepared the inquest report, but he has not been examined by the prosecution. In the statement recorded under Section 161 Cr.P.C., P.W. 7 stated that the informant (P.W. 8) had accompanied him to the place of occurrence after hearing about the death of his father. The attention of P.W. 7 was drawn towards his previous statement under Section 161 Cr. P. C. which discounted the presence of P.W. 8 at the place of occurrence. Non-examination of the Investigation Officer had, therefore, caused serious prejudice to the defence. 8. As per evidence of P.W. 8, the place of occurrence was Benidih Baihar which is at some distance from the house of informant and it was not possible to see the occurrence from such a long distance. It is also argued that the oral evidence of assault by spear is not corroborated by the medical evidence as no perforated wound was found on the dead-body by the Doctor. 9. Learned A.P.P. for the State has defended the judgment of 3 conviction and sentence. FINDING 10. Homicidal death of deceased (Arjun Mahto) is not under challenge in appeal which has been duly proved by the Doctor who conducted post-mortem examination on the dead-body. The Autopsy Surgeon noted eleven incised wound on the dead-body besides abrasion in the post-mortem examination report (Exhibit 4). None of the witness, except P.W. 8, who is the informant of the case, has claimed themselves to be direct eyewitness to the incidence. P.W. 7 is the son of the deceased. He has deposed that on hulla, he rushed to the place of occurrence and saw that the appellants armed with swords and other weapons were offering their thanks giving in the Bajrangbali Temple. 11. Prosecution case rests on the testimony of P.W. 8 who claims himself to be the eye witness of the incidence. I find much force in the argument advanced on behalf of the appellants that judgment of conviction cannot be returned on the solitary account of the witness for the following reason: - Firstly, P.W. 7 who is the son of the deceased and nephew of P.W. 8, has given statement to the police that his uncle- Chandar Mahto (P.W. 8) had gone along with him from the house. Attention of P.W. 7 was drawn during cross-examination at para 8. This part of his statement could not be proved as the I.O. who recorded his statement, was not examined. I.O. has not been examined to prove the statement of this witness which figures in para 11 of the case diary. On perusal, I find that P.W. 7 has stated to the police that after receiving information, he had left home with his family members including his uncle- Chandar Mahto (P.W. 8). This statement is in contradiction to the deposition of P.W. 8 that after his brother (deceased) left home, he had gone to the agriculture field, where he heard the hulla and went to the place of occurrence, when he saw the incidence. This raises serious 4 doubt on the presence of P.W. 8 at the place of occurrence. Secondly, P.W. 8 in para 7 of the cross-examination failed to give relevant description of the land or its boundary where he claims to have gone to see paddy saplings. 12. In the absence of any other eye witness to the incidence, it will not be safe to place reliance on the solitary account of P.W. 8 whose very presence at the place of occurrence, is doubtful. the appellants are entitled to benefit of doubt. Under the circumstance, judgment of conviction and sentence passed by the learned trial Court is set aside. Both the Criminal Appeals stand allowed. All the appellants in both the Criminal Appeals are on bail. Their sureties stand discharged from the liability of their bail bonds.
Decision
Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment. (Gautam Kumar Choudhary, J.) Ananda Sen, J. I agree. (Ananda Sen, J.) High Court of Jharkhand, Ranchi Dated, 10th December, 2024 AFR/Anit 5