Jharkhand High Court
Dasu Mahto vs The State Of Jharkhand on 4 April, 2018
Equivalent citations: 2018 (2) AJR 743, (2018) 3 JCR 453 (JHA) (2018) 3 JLJR 627, (2018) 3 JLJR 627
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti
Criminal Appeal (DB) No. 246 of 2004
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 246 of 2004
(Against the Judgment of conviction and Order of sentence dated 22.01.2004,
passed by the Additional Judicial Commissioner, F.T.C.-IX, Ranchi, in Sessions
Trial No. 345 of 1988).
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1. Dasu Mahto
2. Lal Mahto
3. Bishwanath Mahto @ Basanu Mahto
4. Bahadur Mahto
5. Lakhindar Mahto @ Lakhan Mahto
6. Surendra Nath Mahto @ Surin Mahto
7. Mahendra Mahto
8. Rajendranath @ Ranjan Mahto
9. Krishna Mahto
10. Ranglal Mahto
11. Vishnu Mahto
12. Ghanshyam Mahto ..... ... Appellants Versus The State of Jharkhand ..... ... Respondent
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For the Appellants : M/s Manoj Tandon, Shiv Shankar Kumar & Kumari Rashmi, Advocates.
For the Respondent-State : Mr. Arun Kumar Pandey, A.P.P.
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CORAM : HON'BLE MR. JUSTICE H.C. MISHRA : HON'BLE MR. JUSTICE B.B. MANGALMURTI
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C.A.V. on 12.03.2018. Pronounced on 04.04.2018 H.C. Mishra, J.:- Heard learned counsel for the appellants and learned counsel for the State.
2. The appellants are aggrieved by the Judgment of conviction and Order of sentence dated 22nd of January, 2004, passed by the learned Additional Judicial Commissioner, Fast Track Court-IX, Ranchi, in Sessions Trial No. 345 of 1988, whereby, all the appellants have been found guilty for the offence under Section 148 of the Indian Penal Code. Appellants Dasu Mahto and Lal Mahto have been found guilty for the offence under Section 302 of the Indian Penal Code and all the other appellants have been found guilty for the offence under Sections 302 / 149 of the Indian Penal Code. The appellants Bishwanath Mahto @ Basanu Mahto, Krishna Mahto, Dasu Mahto and Mahendra Mahto have also been found guilty for the offence under Section 323 of the Indian Penal Code and the rest of the appellants have been found guilty for the offence under Sections 323 / 149 of the Indian Penal Code and they were convicted for the same. All the appellants were acquitted of the charge under Sections 307 / 149 of the Indian Criminal Appeal (DB) No. 246 of 2004 -2- Penal Code. Upon hearing on the point of sentence, the appellants Dasu Mahto and Lal Mahto were sentenced to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code and the rest of the appellants were also sentenced to undergo imprisonment for life for the offence under Sections 302 / 149 of the Indian Penal Code. The appellants Bishwanath Mahto @ Basanu Mahto, Krishna Mahto, Dasu Mahto and Mahendra Mahto were sentenced to undergo R.I. for one year for the offence under Section 323 of the Indian Penal Code and the other appellants were sentenced to undergo R.I. for one year for the offence under Section 323 / 149 of the Indian Penal Code. All the appellants were further sentenced to undergo R.I. for 3 years for the offence under Section 148 of the Indian Penal Code. All the sentences were directed to run concurrently.
3. The prosecution case, was instituted on the basis of the F.I.R. lodged on 5.7.1987 at about 10.00 P.M., in the night at Silli Police Station, by the informant Hriday Nath Mahto, the cousin of the deceased Paresh Nath Mahto, wherein it is stated that the occurrence had taken place at about 5.00 P.M. in the evening on the same day, while the informant Hriday Nath Mahto and his brother Uday Mahto were repairing the leaking roof tiles of their house, situated in village Sali Sareng, P.S. Silli, District Ranchi, when 13 named accused persons, including these 12 appellants and one Birbal Mahto came there, armed with tangi, balua, (sharp cutting weapons) bow, arrow etc., and they starting pelting stones by ghumcha (a stone throwing object locally made by rope), whereupon his elder cousin, Paresh Nath Mahto told them not to quarrel as the suit for land was pending in the Court, and they would abide by the decision of the Court. In the meantime, the accused Lal Mahto, who was armed with arrow, shot an arrow upon him, which pierced in his stomach, due to which he fell down. The informant and his brother, who were on the roof, came down to save their cousin, whereupon Dasu Mahto and Mahendra Mahto assaulted the informant and Krishna Mahto and Basanu Mahto assaulted his brother Uday Mahto on their neck, head etc., by balua and tangi, whereupon they ran away to save themselves, and the accused persons dragged Paresh Nath Mahto to their bari, where all of them assaulted him by tangi, farsa etc., and beheaded him, causing his death at the spot. The occurrence was seen by his nephew Ram Chandra Mahto, the daughters and wife of the deceased and other persons. Some persons also assembled at the place of occurrence, who were informed about the occurrence. As to the cause of occurrence, it is stated that there was Criminal Appeal (DB) No. 246 of 2004 -3- dispute for the house, which was being repaired by the informant, as their father had purchased the land from the father of the accused Lal Mahto through an un-registered patta. The accused persons were claiming the land to be their own and all the accused persons forming unlawful assembly, armed with deadly weapons had assaulted the deceased to death and had also assaulted and injured the informant and his brother with intention to cause their death. On the basis of the F.I.R., Silli P.S. Case No. 45 of 1987 corresponding to G.R. No. 1827 of 1987 was instituted, for the offences under Sections 147, 148, 149, 447, 324, 307, 342 and 302 of the Indian Penal Code, against 13 named accused persons, including the appellants, and investigation was taken up. After investigation, the police submitted the charge-sheet in this case. It may be stated that one of the accused, namely, Birbal Mahto, died during the pendency of the trial.
4. Upon commitment of the case to the Court of Session, charge was framed against the accused persons for the offences under Sections 148, 302, 302 / 149, 307 and 307 / 149 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, eight 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. No medical evidence regarding the injuries on the informant and his brother has been adduced in the case by the prosecution.
5. P.W.-4 Hriday Nath Mahto is the informant in the case. He is the cousin of the deceased and an eyewitness to the occurrence, being injured in the occurrence. This witness has stated that the occurrence had taken place on 5.7.1987 at about 5.00 P.M., in the evening. He was repairing the leaking roof of the house of his brother Uday Mahto. At the same time, all the 13 accused persons, (whom he has named in his evidence), came there. Daso Mahto was armed with balua and ghumcha, and Lal Mahto was armed with bow and arrow and all the others were armed with balua. Daso Mahto started pelting stone by ghumcha and, thereafter, Lal Mahto assaulted Paresh Nath Mahto by arrow, causing injury on him. Daso Mahto and Mahendra Mahto assaulted this witness by balua on his head and Basanu Mahto and Krishna Mahto assaulted Uday Mahto by balua and injured them, whereupon, both of them ran away for saving themselves. Paresh Nath Mahto had fallen down after being injured by arrow, thereafter, Dasu Mahto beheaded him by balua. All the other accuseds were instigating Dasu Mahto to kill the deceased, but they had not made any assault. He had gone to the Police Station along with his injured brother and Criminal Appeal (DB) No. 246 of 2004 -4- other persons and had lodged the F.I.R., whereupon, he has identified his signature, which was marked Exhibit-1. He has also identified the signatures of Ram Chandra Mahto and Gorai Mahto, who are the witnesses on the F.I.R., which were marked Exhibits-1/1 and 1/2 respectively. He has stated that the occurrence had taken place due to the fact that they had purchased the land from the father of Lal Mahto, about 50 years ago, and were living after constructing the house over the same. Lal Mahto used to say that un-registered patta had no value. He has identified the accused Dasu Mahto present in the Court and he has claimed to identify the other accused persons also. In his cross-examination, this witness has stated that the civil suit for the land was pending between the parties for about 10-12 years. He has also stated that they have separate houses, situated nearby. The bari of the accused Dasu Mahto is also situated at a distance of 15-20 steps. He has stated that only one accused was armed with ghumcha and when he pelted stones with ghumcha, they came down from the roof. Paresh Nath Mahto was assaulted by arrow on the land of this witness, whereupon, Paresh Nath Mahto fell down. He has stated that the land of Dasu Mahto was situated east from the place of occurrence where the deceased was assaulted by arrow. Paresh Nath Mahto was dragged by two persons, Lal Mahto and Dasu Mahto. He has stated that it was raining on the date of occurrence and after about 2-3 hours of the occurrence, they went to the Police Station. He has stated in his cross-examination that arrow remained pierced in the stomach of the deceased. From the Police Station, this witness went to the hospital and the police had visited the place of occurrence. He has stated that the police had not seized the arrow in his presence and he has no knowledge whether the cloths of Paresh Nath Mahto were seized by the police or not. He has denied the suggestion that they have assaulted the deceased to death, due to some dispute and have falsely implicated the accused persons in this case.
6. P.W.-3 Uday Mahto is the other injured witness in this case. He has stated that the occurrence had taken place about 9-10 years ago on a Sunday at about 5.00 P.M. He was repairing the roof tiles of his house along with his brother Hriday Nath Mahto. In the meantime, 13 accused persons, (whom he has also named in his evidence), came there and they started pelting stones and shooting arrows. Paresh Nath Mahto came there to prevent them, whereupon Lal Mahto assaulted Paresh Nath Mahto by arrow, hitting his stomach, whereupon Paresh Nath Mahto fell down. Dasu Mahto, thereafter, dragged Paresh Nath Mahto to some distance and beheaded him. When he had gone to Criminal Appeal (DB) No. 246 of 2004 -5- save the deceased, Kishnu Mahto and Basanu Mahto assaulted him by tangi. He has stated that the occurrence had taken place due to the dispute of the house, for which, a suit was pending in the Court. He has identified the accused persons present in the Court. In his cross-examination, this witness has stated that Puran Mahto was the father of Paresh Nath Mahto, who had died. He did not remember whether there was any case between Puran Mahto and Babu Ram Mahto, the father of this witness. It was raining at the time of occurrence. While this witness and his brother were on the roof, arrows were shot and stones were pelted by Lal Mahto and Dasu Mahto, but they were not injured, thereby. Lal Mahto, Dasu Mahto, Basanu Mahto, Kishnu Mahto and Mahendra Mahto were armed with balua and Dasu Mahto was also having ghumcha in his hand. This witness has stated that quarrel was going on in front of his house. Paresh Nath Mahto tried to prevent them, when Lal Mahto assaulted him by arrow, which pierced in his stomach. Paresh fell down due to bleeding injury and became unconscious. This witness and his brother went to pull out the arrow, when they were assaulted by the accused persons. Paresh was beheaded at a distance of about 10-15 steps from the place, where he had fallen down. He has no knowledge whether Hriday Nath Mahto was assaulted or not. He had not seen any injury on Hriday Nath Mahto. He has stated the land dispute between them was continuing from before the occurrence. He has also stated that Paresh was beheaded and the arrow was still in his wound. He has also denied the suggestion that they had killed the deceased and had falsely implicated the accused persons.
7. P.W.-1 Rukmani Devi and P.W.-6 Sukarmani Bala, are the daughters of the deceased, who have also supported the prosecution case as eyewitnesses to the occurrence. P.W.-1 Rukmani Devi was already married at the time of occurrence and she has stated that on the day of occurrence she was at her parents' place. P.W.-6 Sukarmani Bala was unmarried at the time of occurrence and she was also present in the house. Both these daughters of the deceased have also named all the accused persons and have stated that they saw that the accused Lal Mahto had assaulted their father by arrow, causing injuries in his stomach, thereafter the accused dragged their father to their own land and Dasu Mahto beheaded their father. The accused persons had assaulted and injured their uncles also. They have stated that the occurrence had taken place due to land dispute between their uncle and the accused persons. They have identified the accused persons present in the Court and they have also claimed to Criminal Appeal (DB) No. 246 of 2004 -6- identify the other accused persons. Both these daughters were put to extensive cross-examination, but they stood the test of cross-examination and they have reiterated that their father was first assaulted by arrow by Lal Mahto and, thereafter, he was dragged to the land of Dasu Mahto, where, Dasu Mahto beheaded him. There is nothing of much importance in their cross-examinations.
8. P.W.-2 Ram Chandra Mahto is the nephew of the deceased and he has also supported the prosecution case as an eyewitness to the occurrence and according to his evidence also Lal Mahto had first assaulted Paresh by arrow, which pierced his stomach, and when he fell down, Hriday and Udai tried to save him, when Hriday was assaulted by Dasu Mahto and Mahendra Mahto by tangi and Uday was assaulted by Basanu Mahto and Krishna Mahto by tangi and balua with intention to cause their death. Thereafter, Dasu Mahto dragged Paresh Nath Mahto to a distance of about 10-15 steps and he assaulted Paresh Nath Mahto beheading him. The other accused persons were instigating him to kill the deceased. He has also stated that the occurrence had taken place due to land dispute between the parties. In his cross-examination this witness has stated that the arrow remained embedded in the stomach of the deceased. This witness was also put to lengthy cross-examination, but there is nothing therein to discredit his testimony, so far as the aforesaid manner of the occurrence is concerned.
9. P.W.-5 is Ram Prasad Mahto, who is son-in-law of the deceased. He his only the witness to the inquest report and the seizure list relating to seizure of blood stained soil and arrow, which he proved. In his cross-examination, he has stated that the arrow was embedded in the stomach of the deceased, which was not taken out from the dead body.
10. P.W.-7 Dr. Tulsi Mahto had conducted the post-mortem examination on the dead body of the deceased on 7.7.1987 and had found the following ante-mortem injuries on the dead body:-
(i) The body was decapitated through the neck at the level of 4th cervical vertebra. The head was lying separately. On inspection of the wounds two tags of skin were projecting out indicating infliction of minimum three blows. The head correctly fitted with the rest of the body.
Incised wounds:-
(i) 5 cm x 1 cm x ¼ cm over the left shoulder front.
(ii) 3 cm x 1 cm x ¼ cm over left arm front at its middle.
(iii) 5 cm x 2 cm x bone deep over back of left elbow cutting the ulna bone upper part and humerus bone partially.
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(iv) 14 cm x 5 cm x bone deep on the lateral side lower part of right thigh cutting the right thigh bone completely.
(v) 5 cm x 1 cm x ½ cm over right knee front.
(vi) 6 cm x 2 cm x bone deep over the left side of chin, cutting the lower jaw bone completely.
(vii) Rest of the organs are normal and pale.
(viii) Stomach contained rice particles 150 gms.
Urinary bladder-empty.
This witness has stated that all the injuries were ante-mortem in nature, caused by heavy sharp cutting weapon and death was due to decapitation. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-2.
11. P.W.-8 Vidyanand Sinha is the I.O. of the case. This witness has stated that on 5.7.1987, he was posted as Officer-Incharge of Silli Police Station. Hriday Nath Mahto came at the Police Station and gave his statement, which he recorded, on the basis of which, he instituted the case. He has identified the F.I.R., including the statement of the informant, which was marked Exhibit-3. He has stated that he took over the charge of investigation and he recorded the restatement of the informant. He prepared the memo for injury report of the informant and he proceeded towards the place of occurrence. He has proved the memo for the injury report, which was marked Exhibit-4. He has given the details of the place of occurrence, where he found lot of blood, which was the land of the accused Lal Mahto etc. The dead body was lying at that place and blood was scattered to a distance of about one yard. At a distance of about 10 yards, the house of the accused Dasu Mahto and Lal Mahto is also situated. In the western side, is the land of Hriday Nath Mahto and his brother Uday Mahto. He had also found an arrow at a distance of about 1½ yard from the dead body. He seized the arrow and the blood stained soil and prepared the seizure list, which he proved and the same was marked Exhibit-5. He recorded the statements of the witnesses. He searched the accused persons, but he could not find them. He sent the dead body for post-mortem examination and after completing the investigation, he submitted the charge-sheet in this case. In his cross-examination, he has stated that he had sent the informant for his treatment and he recorded his restatement after the inspection of the place of occurrence. He has also stated that he had not mentioned in the case diary, whether the arrow was blood stained or not. He had not sent the arrow and the blood stained soil for chemical examination. He had visited the house of the deceased and he has denied the suggestion of making faulty investigation.
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12. The statements of accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused persons have denied the evidence against them. No witness was examined by the defence in the case. One certified copy of the plaint in Partition Suit No. 115 of 1947, has been proved by the defence, which was marked Exhibit-A. This certified copy shows that there was partition suit between Babu Ram Mahto and Puran Mahto and others. In the evidence, it has come that Babu Ram Mahto was the father of Uday Mahto and Puran Mahto was the father of deceased Paresh Nath Mahto, and this certified copy of the plaint has been brought on record to show that there was a partition suit between the father of the deceased and the informant side. On the basis of the evidence on record, the accused appellants were found guilty, convicted and sentenced by the Trial Court below, for the offences as aforesaid.
13. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, the prosecution has failed to prove the charges beyond all reasonable doubts. Even the manner of occurrence could not be proved by the prosecution beyond all reasonable doubts. It is submitted by learned counsel that according to the prosecution case and evidence of all the witnesses, Paresh Nath Mahto was firstly assaulted by arrow by Lal Mahto, which was pierced in his stomach. It has also come in the evidence of the witnesses, particularly in the evidence of P.W.-2 Ram Chandra Mahto, P.W.-3 Uday Mahto, P.W.-4 Hriday Nath Mahto and P.W.-5 Ram Prasad Mahto, who are the cousins, nephew and the son-in-law of the deceased, that the arrow remained embedded in the wound of the deceased. Learned counsel has pointed out from the evidence of P.W.-7 Dr. Tulsi Mahto that no such injury was found on the deceased, rather there was no injury at all on the abdomen of the deceased. Learned counsel, accordingly, submitted that the very manner of the occurrence has not been proved by the prosecution. Learned counsel further submitted that though it is the evidence of all the eye witnesses that even the informant Hriday Nath Mahto and his brother Uday Mahto were assaulted and injured by tangi and balua, but the Doctor, examining these witnesses, have not been examined by the prosecution and there is no medical evidence at all to prove the injuries on these witnesses. It is further submitted that though all the witnesses have named all the 13 named accused persons alleging that they were forming unlawful assembly armed with deadly weapons, but there is nothing on the record to show that the murder of the deceased was caused in Criminal Appeal (DB) No. 246 of 2004 -9- the prosecution of common object of the said unlawful assembly, inasmuch as, there is no allegation of any assault on the deceased by the rest of the accused persons except, Dasu Mahto and Lal Mahto. Indeed the injury, allegedly caused by Lal Mahto has not at all been proved by P.W.-7 Dr. Tulsi Mahto. Learned counsel has submitted that in absence of any allegation of positive overt act against the other accused persons, it cannot be said that the murder of the deceased was committed in prosecution of the common object of the unlawful assembly. It is further submitted that all the material witnesses examined in the case are near relatives and highly interested witnesses and no independent witness has been examined in the case, even though, according to the F.I.R., several persons had reached the place of occurrence. It is submitted by learned counsel that the witnesses, supporting the prosecution case, are highly interested witnesses and in view of the admitted enmity between the parties, the false implication of the accused persons cannot be ruled out. Indeed the defence has given the suggestion to P.W.-4 Hriday Nath Mahto and P.W.-3 Uday Matho that they had assaulted the deceased to death and had falsely implicated the accused persons in this case, and the defence has also brought on record the certified copy of the plaint of the partition suit between the father of the deceased and the father of the informant side, showing dispute between them. Even though this defence was taken in the Court below also, but the Trial Court below has failed to discuss this defence of the accused persons, thereby committing a serious error of law in finding the guilt of the accused persons. Learned counsel, further submitted that the weapon of offence, by which, the deceased was beheaded has not been seized in this case and even the blood stained soil or the arrow allegedly seized, were also not sent for any chemical examination. Learned counsel also submitted that the place of occurrence is situated at a distance of only 10 Kms. from the Police Station and even though the occurrence had taken place at 5.00 P.M, the information to the police was given after a delay of 5 hours and there is no cogent explanation for the same. Learned counsel has also submitted that even though the motive for the occurrence has been alleged in the F.I.R., but the prosecution has not proved the motive and this is a circumstance in favour of the accused.
14. In support of his contention that motive for the occurrence has not been proved and this is a circumstance in favour of the accused, learned counsel has placed reliance upon the decision of the Hon'ble Patna High Court in Shankar Ram and Anr. Vs. State of Bihar, reported in 1997 (2) PLJR 578.
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Learned counsel has also placed reliance upon the decision of Hon'ble Patna High Court in Ram Lakhan Singh Vs. State of Bihar, reported in 1998 (2) PLJR 571, wherein it has been laid down that if the prosecution witnesses are highly interested witnesses, their evidence has to be considered with due care and caution. In support of his contentions that if the prosecution fails to prove the manner and genesis of the occurrence and in case the genesis, as deposed by the prosecution witnesses is held to be untrustworthy and doubtful, the case against the accused cannot stand, and that the Trial Court must discuss defence of the accused persons, learned counsel has placed reliance upon the decision of the Patna High Court in Babu Nand Rai and Ors. Vs. State of Bihar, reported in 2000 (2) PLJR 643. Learned counsel has also placed reliance upon the decision of Hon'ble Patna High Court in Shamin Khan and Ors. Vs. State of Bihar, reported in 2000 (2) PLJR 1, submitting that it is well established rule of law that the prosecution has to establish its case beyond all reasonable doubts, but the defence has only to create a doubt with regard to the prosecution case and if it is able to do so, the accused is entitled to the benefits of doubt. Placing reliance on these decisions, learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law and it is a fit case, in which, the accused persons ought to have been given the benefits of doubt.
15. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution has been able to bring home the charge against the accused persons beyond all reasonable doubts, inasmuch as, the prosecution case is fully supported by all the eye witnesses, including the injured witnesses. It is submitted that all the material witnesses are the eyewitness to the occurrence and have stated that at the time of occurrence, all the 13 named accused persons came variously armed with deadly weapons, forming unlawful assembly and they made assaults upon the informant side. As to the manner of occurrence, it is stated that the accused Lal Mahto had assaulted the deceased Paresh Nath Mahto by arrow, due to which, he fell down and, thereafter, he was dragged to a distance of about 10-15 steps, where he was beheaded by the accused Dasu Mahto by tangi, and all the accused persons were instigating him to kill Paresh Nath Mahto. As all the accused persons were instigating Dasu Mahto to kill Paresh Nath Mahto, this clearly shows that the offence was committed in the prosecution of common object of the unlawful Criminal Appeal (DB) No. 246 of 2004
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assembly, of which, all the accused appellants were members. The injuries upon the deceased have been proved by the medical evidence of P.W.-7 Dr. Tulsi Mahto and the post-mortem report, proved by him as Exhibit-2. As such, the appellants Dasu Mahto and Lal Mahto have been rightly convicted for the offence under Section 302 of the Indian Penal Code, against whom, there is direct allegation of assaulting the deceased by arrow and beheading him by tangi, and the other appellants, who were instigating to kill the deceased, have rightly been convicted for the offence under Sections 302 / 149 of the Indian Penal Code. It is submitted that though all the witnesses have also stated that the accused Dasu Mahto and Mahendra Mahto had assaulted the injured Hriday Nath Mahto by tangi and Basanu Mahto and Krishna Mahto had assaulted and injured Uday Mahto by tangi, but in view of the fact that the Doctor, treating these witnesses have not been examined by the prosecution, those appellants have been rightly convicted for the offence under Section 323 of the Indian Penal Code and all the other appellants have rightly been convicted for the offence under Sections 323 / 149 of the Indian Penal Code, as even this offence was committed in the prosecution of common object of the unlawful assembly, of which, all the accused appellants were members. Learned counsel, accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below.
16. Having heard counsels for both the sides and upon going through the record, we find that the prosecution case is supported by P.W.-1 Rukmani Devi, P.W.-2 Ram Chandra Mahto, P.W.-3 Uday Mahto, P.W.-4 Hriday Nath Mahto and P.W.-6 Sukarmani Bala, as eyewitnesses to the occurrence, out of whom, P.W.-3 Uday Matho and P.W.-4 Hriday Nath Mahto are said to be injured in the occurrence. So far as the allegation of assault on the deceased is concerned, all the witnesses have stated that when the deceased tried to intervene in the quarrel, he was assaulted by Lal Mahto by arrow, which was pierced in his stomach, whereupon, he fell down and thereafter, he was dragged to a distance of 10-15 steps to the land of Dasu Mahto, where he was beheaded by Dasu Mahto. P.W.-2 Ram Chandra Mahto and P.W.-4 Hriday Nath Mahto have also stated that at the time when Dasu Mahto was beheading the deceased, all the other accused persons were instigating him to kill the deceased. So far as evidence of beheading the deceased is concerned, this evidence is fully corroborated by the medical evidence of P.W.-7 Dr. Tulsi Mahto, who amongst the other injuries on the dead body, also found the dead body decapitated and the Criminal Appeal (DB) No. 246 of 2004
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head was lying separately, which correctly fitted with the rest of the body. All the injuries are said to be caused by heavy and sharp cutting weapon. However, no injury was found on the stomach of the deceased, nor any injury was found to be caused by a piercing weapon like arrow. Thus, the evidence of the prosecution witnesses that Lal Mahto had assaulted the deceased by arrow, which according to the prosecution witnesses was embedded in the stomach of the deceased, is not at all corroborated by the medical evidence. We also find from the record that though, there is allegation against the appellants Basnu Mahto and Krishna Mahto to have assaulted and injured Uday Mahto, but there is no corroborative medical evidence in this regard. Even the evidence of the I.O., P.W.-8 Vidyanand Sinha shows that he had issued the memo for the injury report only for the informant Hriday Nath Mahto, and had sent only this witness for treatment, even though according to the evidence of P.W.-4 Hriday Nath Mahto, his injured brother Uday Mahto had also gone to the Police Station at the time of lodging the F.I.R. As such, the allegation that Basanu Mahto and Krishna Mahto had assaulted the injured Uday Mahto by tangi and balua is also not proved beyond all reasonable doubts. Though the allegation against Dasu Mahto and Mahendra Mahto of assaulting and injuring the informant by tangi is also not supported by any medical evidence, but the fact remains that the I.O. has stated that he had issued the memo for injury report of this witness and had sent him for treatment, and has also proved the memo for injury report as Exhibit-4. As such, though the nature of injury could not be proved, but there is corroborative evidence at least to the fact that there was some injury upon the informant Hriday Nath Mahto. We are of the considered view that the learned Trial Court below has rightly convicted and sentenced the appellants Dasu Mahto and Mahendra Mahto for the offence under Section 323 of the Indian Penal Code, but the conviction of the appellants Basnu Mahto and Krishna Mahto for the offence under Section 323 of the Indian Penal Code cannot be sustained in the eyes of law. The fact however remains that there is evidence on record that the offence was committed in the prosecution of common object of the unlawful assembly, of which, all the accused appellants were members, and as such the appellants Basnu Mahto and Krishna Mahto shall also be liable to be convicted for the offence under Sections 323 / 149 of the Indian Penal Code.
17. We also find from the evidence on record that though no specific overt act has been alleged on the other appellants, but it is stated by all the eye witnesses that they had also assembled at the place of occurrence variously Criminal Appeal (DB) No. 246 of 2004
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armed, forming part of the unlawful assembly. Though the allegation that the deceased Paresh Nath Mahto was assaulted by Lal Mahto by arrow, is not corroborated by the medical evidence of P.W.-7 Dr. Tulsi Mahto and the post-mortem report proved by him as Exhibit-2, but the evidence that thereafter, he was dragged to the land of Dasu Mahto, where he was assaulted by tangi, beheading him, is fully corroborated by P.W.-7 Dr. Tulsi Mahto and the post-mortem report, proved by him as Exhibit-2. The fact that the deceased was also assaulted by sharp cutting weapon by the accused persons, before being beheaded, is also proved from the evidence of P.W.-7 Dr. Tulsi Mahto and the post-mortem report proved by him as Exhibit-2, as apart from the decapitation, six ante-mortem incised wounds were found on the different parts of the dead body, caused by sharp cutting weapon. Though the eye witnesses have not stated about the author of these injuries, but it is a settled principle of law that where there are large number of assailants, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. P.W.-2 Ram Chandra Mahto and P.W.-4 Hriday Nath Mahto have also stated that at the time when Dasu Mahto was beheading the deceased, all the other accused persons were instigating him to kill the deceased. There is no cross-examination of these witnesses on this point.
18. In Bhagwan Jagannath Markad Vs. State of Maharashtra, reported in (2016) 10 SCC 537, the law in this regard has been laid down by the Hon'ble Supreme Court of India as follows:-
"21. An offence committed in prosecution of common object of an unlawful assembly by one person renders members of unlawful assembly sharing the common object vicariously liable for the offence. The common object has to be ascertained from the acts and language of the members of the assembly and all the surrounding circumstances. It can be gathered from the course of conduct of the members. It is to be assessed keeping in view the nature of the assembly, arms carried by the members and the behaviour of the members at or near the scene of incident. Sharing of common object is a mental attitude which is to be gathered from the act of a person and result thereof. No hard-and-fast rule can be laid down as to when common object can be inferred. When a crowd of assailants are members of an unlawful assembly, it may not be possible for witnesses to accurately describe the part played by each one of the assailants. It may not be necessary that all members take part in the actual assault. In Gangadhar Behera, this Court observed: [(2002) 8 SCC 381 SCC pp. 398-99, para 25] "25. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A Criminal Appeal (DB) No. 246 of 2004
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four-Judge Bench of this Court in Masalti case observed as follows: (AIR 1965 SC 202 AIR p. 210, para 15) '15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not.'" (Emphasis supplied).
19. We are of the considered view that the case in hand is fully covered by the law laid down in Bhagwan Jagannath Markad's case (supra). In view of the evidence on record that all the accused persons had formed an unlawful assembly, variously armed with deadly weapon, it is established that the appellants were having the common object to assault the informant side due to the land dispute between them. This motive is also proved by all the eye witnesses to the occurrence. Even the killing of the deceased by the accused Dasu Mahto by beheading him, was also done in the prosecution of the common object of the unlawful assembly, of which all the appellants were members, as is evident from the evidence of P.W.-2 Ram Chandra Mahto and P.W.-4 Hriday Nath Mahto, who have stated that at the time when Dasu Mahto was beheading the deceased, all the other accused persons were instigating him to kill the deceased.
20. We are unable to accept the submission of learned counsel for the appellants that the prosecution has not been able to prove the motive behind the occurrence. The motive was the land dispute between the parties and all the witnesses have stated that there was land dispute between the parties for the land, over which, the house of Uday Mahto was situated, for which the suit was pending in the competent Court, and there is no cross-examination of the Criminal Appeal (DB) No. 246 of 2004
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witnesses on this point to discredit their testimony. As such, the motive behind the occurrence is fully proved in the case.
21. We also find that only because of the fact that the prosecution witnesses are related to the informant and the deceased, and they are highly interested witnesses, their evidence cannot be discarded. They are the natural witnesses to the occurrence, and their ocular evidence is also corroborated by the medical evidence of P.W.-7 Dr. Tulsi Mahto, and the post-mortem report proved by him as Exhibit-2, to a large extent. The dead body was found at the land of Dasu Mahto by the I.O., P.W.-8 Vidyanand Sinha, who had also found lot of blood on that place of occurrence. As such the evidence of the eye witnesses inspire confidence, and their evidence cannot be discarded only on the ground that they are the interested witnesses.
22. We also find that non-seizure of tangi, by which, the deceased was beheaded, or the fact that the blood stained soil or the arrow seized, were not sent for forensic examination, are not at all fatal to the prosecution case. We also do not find any merit in the submission of learned counsel for the appellants that there was inordinate delay in lodging the FIR, as the occurrence had taken place at about 5.00 P.M, and the information to the police was given in the same night at about 10.00 P.M. The occurrence had taken place in a remote village, and there is evidence that it was raining on the day of occurrence. As such, lodging the FIR within five hours of the occurrence cannot be said to be unduly delayed.
23. We are not at all impressed by the submission of the learned counsel for the appellants that there may be chances of the informant side itself killing the deceased and falsely implicating the accused persons due to enmity, for which the defence has proved the certified copy of the plaint in Partition Suit No. 115 of 1947, between Babu Ram Mahto and Puran Mahto and others. Had it been so, the daughters of the deceased, P.W.-1 Rukmani Devi and P.W.-6 Sukarmani Bala, would not have spared the killers of their father. Both these witnesses have fully supported the case against all the accused persons.
24. For the foregoing reasons, we find that the prosecution has been able to bring home the charge against the accused Dasu Mahto for the offence under Section 302 of the Indian Penal Code and against all the other appellants for the offence under Sections 302 / 149 of the Indian Penal Code. The prosecution has also been able to bring home the charge against the accused Dasu Mahto and Mahendra Mahto for the offence under Section 323 of the Indian Penal Code and against all the other appellants for the offence under Criminal Appeal (DB) No. 246 of 2004
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Sections 323 / 149 of the Indian Penal Code. In the facts of this case, offence is also made out under Section 148 of the Indian Penal Code, against all the accused appellants.
25. In view of the aforementioned discussions, the impugned Judgment of conviction dated 22nd of January, 2004, passed by the learned Additional Judicial Commissioner, Fast Track Court-IX, Ranchi, in Sessions Trial No. 345 of 1988, is modified to the extent that the accused Dasu Mahto is found guilty and convicted for the offence under Section 302 of the Indian Penal Code and all the other appellants are found guilty and convicted for the offence under Sections 302 / 149 of the Indian Penal Code. The accused Dasu Mahto and Mahendra Mahto are also found guilty and convicted for the offence under Section 323 of the Indian Penal Code and all the other appellants are found guilty and convicted for the offence under Sections 323 / 149 of the Indian Penal Code. The conviction of all the appellants for the offence under Section 148 of the Indian Penal Code, and the substantial sentences passed by the Trial Court below against all the appellants for the aforesaid offences, are hereby, affirmed. The appellant Dasu Mahto is already in custody, undergoing the sentence. All the other appellants, namely, Lal Mahto, Bishwanath Mahto @ Basanu Mahto, Bahadur Mahto, Lakhindar Mahto @ Lakhan Mahto, Surendra Nath Mahto @ Surin Mahto, Mahendra Mahto, Rajendranath @ Ranjan Mahto, Krishna Mahto, Ranglal Mahto, Vishnu Mahto and Ghanshyam Mahto , are on bail. Their bails are hereby, cancelled and they are directed to surrender in the Court below forthwith for undergoing the sentence. The Court below is also directed to issue the process forthwith, compelling the surrender / production of these appellants in the Court below, for serving out the sentence.
26. This appeal is accordingly, dismissed with the modification in the impugned Judgment of conviction to the extent as aforesaid. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
(H.C. Mishra, J.) B.B. Mangalmurti, J.:-
(B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi Dated the 4th of April, 2018 NAFR/ Amitesh/-