The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No.185 of 2002 ----- (Against the judgment of conviction and order of sentence, both dated 02.04.2002 passed by learned Additional Sessions Judge, 1st Fast Track Court, Giridih in Sessions Trial No. 45 of 1993) ---- Debu Mahto, son of late Fulchan Mahto, resident of village Dhani Sharan, PS Deori, District Giridih Versus … Appellant(s). The State of Jharkhand … Respondent(s). ------ PRESENT SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. For the Appellant(s) For the Respondent(s) ------ : Mr. Shree Nivas Roy, Advocate : Mr. Vineet Kumar Vashistha, Spl.PP …...... J U D G M E N T 25th October 2024 By Court: We have heard the learned counsel appearing for the
Legal Reasoning
intervene. From their evidence we find that initially quarrel was going between Fuchan Mahto and Horo Mahto. There is nothing to suggest that the deceased and the witnesses indulged in any quarrel at that stage. It is only when the deceased and these witnesses PW1, PW2 and PW3 went to intervene, the appellant and others started assaulting them, being aggrieved from being intervened. PW1, PW2 and PW3 gave general and omnibus statement that all the accused persons including this appellant had assaulted the deceased on head and other parts of the body. PW1 stated that he was also assaulted once by Debu Mahto i.e the appellant. Bishu Mahto who is PW2 also stated that it is this appellant who assaulted him. This Bishu Mahto who had sustained injury has been examined by PW8, who is the doctor. He found one lacerated wound on his scalp but the injuries are simple in nature caused by hard and blunt substance. Thus especially from the statement of PW2 we are of the firm opinion that these witnesses were present at the place of occurrence. PW2 being the injured witness, his testimony should be kept at 5 highest pedestal. This has been held by the Hon’ble Supreme Court in “Jodhan v. State of M.P.” reported in (2015) 11 SCC 52: “28. Tested on the backdrop of the aforesaid enunciation of law, we are unable to accept the submission of the learned counsel for the appellant that the High Court has fallen into error by placing reliance on the evidence of the said prosecution witnesses. The submission that when other witnesses have turned hostile, the version of these witnesses also should have been discredited does not commend acceptance, for there is no rule of evidence that the testimony of the interested witnesses is to be rejected solely because other independent witnesses who have been cited by the prosecution have turned hostile. Additionally, we may note with profit that these witnesses had sustained injuries and their evidence as we find is cogent and reliable. A testimony of an injured witness stands on a higher pedestal than other witnesses. In Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] , it has been observed that: (SCC p. 271, para 28) “28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.” (Cri) 563] It has been also reiterated that convincing evidence is required to discredit an injured witness. Be it stated, the opinion was expressed by placing reliance upon Ramlagan Singh v. State of Bihar [Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881 : 1973 , Malkhan Singh v. State of U.P. [Malkhan SCC Singh v. State of U.P., (1975) 3 SCC 311 : 1974 SCC (Cri) 919] , Vishnu v. State of Rajasthan [Vishnu v. State of Rajasthan, (2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] , Balraje v. State of Maharashtra [Balraje v. State of Maharashtra, (2010) 6 SCC 673 : of (2010) 3 SCC Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] .” (Cri) 211] and Jarnail Singh v. State 17. There is nothing to disbelieve the statement of PW1, PW2 and PW3 about the manner and conduct of offence and about the assault. 6 18. Now the question is whether this appellant can be held guilty of committing offence under section 302 IPC for committing murder of the Badri Mahto. As per the statement of PW1, PW2 and PW3 there is general allegation that this appellant along with others have assaulted Badri Mahto and these witnesses also. The postmortem report of Badri Mahto suggests that there is injury on the head but that was caused by sharp cutting weapon. The doctor who conducted the postmortem in cross examination has also affirmed that the head injury is caused by sharp cutting weapon. From the evidence of PW1, PW2 and PW3 it is substantiated that this appellant was not carrying any sharp cutting weapon, he was carrying a stick. 19. The Trial Court has applied section 34 of the Indian Penal Code to convict this appellant under section 302 of the Indian Penal Code. Section 34 IPC reads as follows:- “34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 20. From the fact whether there was common intention or not, is to be derived from the facts of the case and there has to be a preconcert. This has to be derived from the facts of each case. In this case we find that there was no enmity or quarrel between the deceased and the appellant initially. There was some quarrelling amongst themselves, when the deceased tried to intervene. Thus it cannot be said that there was any preconcert to commit murder of the deceased or to assault him or PW2 or the other witnesses.
Arguments
appellant and the learned counsel for the State at length. 2. This Criminal Appeal arises out of the judgment of conviction and order of sentence, both dated 02.04.2002 passed in Sessions Trial No.45 of 1993 whereby and whereunder learned Additional Sessions Judge, 1st Fast Track Court, Giridih convicted the appellant under sections 302 and 323/34 of the Indian Penal Code and sentenced him to undergo imprisonment for life under section 302 of the Indian Penal Code and RI for six months under section 323 of the Indian Penal Code. 3. The learned counsel appearing on behalf of the appellant submits that this appellant Debu Mahto cannot be convicted under section 302 read with section 34 of the Indian Penal Code as there was no common intention to commit murder of the deceased or to assault any person. He submits that the fatal blow was admittedly not given by this appellant rather it was given by Narayan Singh. The doctor found one sharp cut injury on the head of the deceased but admittedly from the evidence of PW1, PW2, PW3 and PW5 who claims themselves to be eye-witness, this appellant was armed with lathi and given one blow with lathi. As per him lathi (stick) cannot cause any sharp cut injury. He further submits that as per PW7 who is investigating officer, the witnesses PW1, PW2 and PW3 cannot be said to be eye witness as because I.O had stated that these witnesses have never narrated before him that this appellant had assaulted anyone. This statement can lead to the only conclusion that they were not the eye-witnesses nor they were present at the place of occurrence. The fact remains that this appellant has not committed any offence. 4. The learned counsel appearing on behalf of the State submits that the statement of the I.O is of no relevance when PW1, PW2 and PW3 had categorically stated that they had seen the occurrence. He further submits that Lilo Mahto PW5 was assaulted by this appellant, as a result of which he sustained a lacerated wound on the scalp. He being an injured witness his testimony should be kept at higher pedestal. Further since this witness is injured, it cannot be said that he was not present at the place of occurrence. He also submits that the fact which the I.O had stated about PW1, PW2 and PW3 where not put to PW1, PW2 and PW3 while they were cross examined, thus this fact which the I.O has sought to introduce as a witness cannot be looked into. 5. The First Information Report is at the instance of PW5, namely, Lilo Mahto. He stated that when they were returning to their house they saw Fuchan Mahto son of Jiten Mahto and Horo Mahto were quarrelling amongst themselves. The informant and 2 others tried to intervene and stop them from quarrelling when Badri Mahto also came and tried to intervene. Then this appellant and others started assaulting Badri Mahto and informant party. Badri Mahto sustained head injury and some injury was sustained by PW1, PW2 and PW3. 6. On the basis of the aforesaid written report, Deori PS Case No. 47 of 1992 was registered under section 342/307/323/34 of the Indian Penal Code against the appellant. Later on during investigation as Badri Mahto died, section 302 of the Indian Penal Code was added. 7. After investigation, the Investigating Officer submitted chargesheet against the appellant for the offence punishable under Sections 342, 323/34 and 302 of the Indian Penal. 8. On the basis of chargesheet and materials on record cognizance was taken and the case was committed to the Court of Sessions where the charge was framed and as the appellant pleaded not guilty trial proceeded. 9. To prove the prosecution case 8 witnesses were examined, who are :- i. PW1 :- Budhan Mahto ii. PW2 :- Bisho Mahto iii. PW3 :- Kishun Mahto iv. PW4 :- Dhouli Devi v. PW5 :- Lilo Mahto vi. PW6 :- Dr. B. P. Singh vii. PW7 :- Ratan Lal Oraon viii.PW8:- Dr. Satendra Kumar Singh 10. Following documents have been exhibited: i. Ext.1 – Postmortem Report ii. Ext.2 – FIR iii. Ext.3 – Inquest Report iv. Ext.4 – Fardbeyan v. Ext.5 – Injury Report vi. Ext.6 – Written Report 3 vii.Ext.7 – Endorsement on Written Report. 11. Bijay Kumar Sinha was also examined as Court witness. He exhibited the injury report and the endorsement made in the FIR by the Officer Incharge, Giridih. 12. After conclusion of the prosecution witnesses statement under section 313 of Cr.PC of the appellant was taken. 13. The defence also examined two witnesses, namely, Narayan Turi and Nirmal Turi. 14. The Trial Court after considering the evidence of the parties led by the prosecution convicted the appellant Debu Mahto for committing offence punishable under sections 302, 323/34 of the Indian Penal Code. 15. PW6 is the doctor who conducted the postmortem of the dead body of the deceased and found the followings injuries: (i) Incised wound on the scalp right side involving frontal and parietal part of the scalp 4 ½ “ x 1” x cavity deep. (ii) swelling of left eye lid. (iii) Abrasion on right auxiliary fold 1” x ¾ “ (iv) Abrasion on left shoulder ½ “ x ½ “ (v) Abrasion on right side cheek ¾ “ x ¼ “ (vi) Five bruises with swelling on back of varying size 2” to 4” and ¼ “ to ¾ “ (vii) Abrasion on both legs ¾” to 1” x ¼” one each side. (viii) Abrasion on abdomen right side ¾” x ¼”. On dissection frontal and parietal bone of right side scalp, ninth rib of left side chest and pelvic bone left side were found fractured. There was a cut of brain substance at the site of injury no. 1. Cranial cavity contained blood. There was a tear on the surface of spleen. Liver and kidneys-NAD. Stomach empty and mucous membrane normal. Urinary bladder contained furrow. Abdominal cavity contained blood. Larynx and Trachea NAD. Hyoid bone intact. Heart empty and lungs- NAD. 4 As per the opinion of the doctor all the injuries are antemortem in nature. Injury no.1 was caused by sharp cutting weapon and rest of the injures are caused by hard and blunt substance. The cause of death was head and abdominal injuries which were sufficient in ordinary course of nature to cause death. Thus from the evidence of the doctor who conducted the postmortem, we conclude that the deceased died a homicidal death. 16. PW1, PW2, PW3 and PW5 are the witnesses who had seen the occurrence. They all have categorically stated that at the time when quarrel was going on they were present there and tried to
Decision
Thus, we hold that section 34 could not have been applied in this case so far as this appellant is concerned. His act has to be individually judged. If we judge the act of this appellant, we find that the only allegation is that he has assaulted with the lathi on 7 the head of the PW2 and the allegation of assaulting the deceased is general and omnibus in nature. Further the head injury caused upon the deceased cannot be attributed to this appellant as he was not carrying any sharp cutting weapon. But the fact which cannot be lost sight of is that he also assaulted PW2 who was treated by PW8 though the injury was simple. 21. Thus from what has been held above, we hold the appellant is guilty of committing offence under section 324 of the Indian Penal Code and he is acquitted of the committing offence under section 302 of the Indian Penal Code as he cannot be convicted under section 302 of the Indian Penal Code with the aid of section 34 of the Indian Penal Code. 22. So far as sentence is concerned, the appellant has remained in custody for two years. Thus, we sentence him to undergo RI for the period which he has already undergone. 23. This Appeal is partly allowed with the aforesaid modification in the findings and the order of sentence. 24. As the appellant is on bail, he is discharged from the liabilities of bail bonds, so are the bailors. 25. Let a copy of the judgment along with the Trial Court Records be sent back to the Court concerned forthwith. (ANANDA SEN, J.) (GAUTAM KUMAR CHOUDHARY, J.) High Court of Jharkhand, Ranchi Dated : 25/10/2024 Tanuj/ N.A.F.R. 8