Jharkhand High Court
Sunder Lal Mahto & Anr vs State Of Jharkhand on 4 February, 2016
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
Cr. Appeal (DB) No.809 of 2004
with
Cr. Appeal (DB) No.605 of 2004
with
Cr. Appeal (DB) No.620 of 2004
with
Cr. Appeal (DB) No.796 of 2004
with
Cr. Appeal (DB) No.1299 of 2004
with
Cr. Appeal (DB) No.1785 of 2004
with
Cr. Appeal (DB) No.1907 of 2004
(Against the judgment of conviction and order of sentence dated
27.03.2004 passed by Sri Ramesh Kumar Srivastava, Addl. Sessions
Judge, F.T.C.III, Bokaro in connection with Sessions Trial No.394 of
1986 corresponding to Chas (M) P.S. Case No.15 of 1986, G.R. Case
No.400(B) of 1986)
1.Lakhiram Mahato............Appellant (in Cr. Appeal (DB) No.809 of 2004)
2. Kali Mahto .............Appellant (in Cr. Appeal (DB) No.605 of 2004)
3. Bhopal Mahto
4. Niranjan Mahto
5. Bharat Mahto ............Appellants (in Cr. Appeal (DB) No.620 of 2004)
6. Charan Mahto
7. Bhuwan @ Bhubneshwar Mahto
8. Jagdish Mahto ............Appellants (in Cr. Appeal (DB) No.796 of 2004)
9. Narain Mahto...............Appellant (in Cr. Appeal (DB) No.1299 of 2004)
10. Harlal Mahto ............Appellant (In Cr. Appeal (DB) No.1785 of 2004)
11. Sunder Lal Mahto
12. Charku Mahato .....Appellants(in Cr. Appeal (DB) No.1907 of 2004)
Versus
The State of Jharkhand ...... Respondent
PRESENT: HON'BLE MR. JUSTICE D.N. UPADHYAY
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants : Mr. R.C.P. Sah, Advocate
Mr. Dilip Kumar Prasad, Advocate
Mr. Manoj Kumar Jha, Advocate
Mr. A.K.Sahani, Advocate
2
For the State : Mr. Awnish Shankar, A.P.P.
Mr. Tapas Roy, A.P.P.
Mr. Sanjay Kr. PandeyII, A.P.P.
Mr. Amresh Kumar, A.P.P.
Mr. Azeemuddin, A.P.P.
Mr. P.K. Appu, A.P.P.
Mr. Mukesh Kumar, A.P.P.
J U D G M E N T
By Court: Above mentioned criminal appeals have been preferred
against the judgment of conviction and order of sentence dated 27.03.2004 passed by learned Addl. Sessions Judge, F.T.C.III, Bokaro in connection with Sessions Trial No.394 of 1986 corresponding to Chas (M) P.S. Case No.15 of 1986, G.R. Case No.400(B) of 1986 whereby the appellants have been held guilty for the offence punishable u/s 302/149, 147 and 148 of the I.P.C. and sentenced to undergo R.I. for life and to pay fine of Rs.1000/ each u/s 302/149 of the I.P.C. and in default of making payment of fine further imprisonment for six months, two years R.I. u/s 148 of the I.P.C. and no separate sentence u/s 147 of the I.P.C. has been inflicted. The sentences so passed were directed to run concurrently.
2. Since appellant Kali Mahato in Cr. Appeal (DB) No.605 of 2004 and appellant Narayan Mahto in Cr. Appeal (DB) No.1299 of 2004 are no more in this world, the appeal preferred by them stands abated.
One of the appellant Niranjan Mahto in Cr. Appeal (DB) No.620 of 2004 died during pendency of the appeal, hence the appeal preferred against Niranjan Mahto also stands abated.
3. The prosecution case, as it appears from the fardbeyan of Bhairo Mahto, recorded on 18.04.1986 at 9.00 a.m. at the clinic of Dr. T.P. Vaishya, Chas (districtBokaro), in brief, is that on 18.04.1986 at about 6.00 a.m. Raso Mahto (father of the informant) had been providing fencing around a jack fruit tree. In the mean time, Lakhiram Mahato, Harilal Mahto and Narain Mahto, armed with lathi reached to the place, caused assault to Raso Mahto as a result he fell down. The accused persons, named above, also started assaulting the deceased by means of bricks and stones. When the informant rushed 3 to save his father, he was also assaulted by Niranjan Mahto, Kali Mahto and Bharat Mahto. Thereafter, other named accused, who are appellants, joined the occurrence to assist former accused and caused assault to other family members of informant. It is disclosed that the appellants, after causing assault, fled away from the place of occurrence. Thereafter the police arrived at the place, injured Raso was taken to clinic of Dr. T.P. Vaishya but he was declared dead. Other injured including the informant were treated in the clinic.
4. On the basis of fardbeyan of Bhairo Mahto, Chas (M) P.S. Case No.15 of 1986 dated 18.04.1986 was registered u/s 147, 148, 149, 323, 325, 326, 307 and 302 of the Indian Penal Code against all the accused named in the fardbeyan. The police, after due investigation, submitted chargesheet and accordingly cognizance was taken and the case was committed to the court of sessions and registered as S.T. No.394 of 1986.
Charges were framed against the appellants u/s 302/149, 323/149 and 148 of the I.P.C. to which they pleaded not guilty and claimed to be tried.
To substantiate the charges, the prosecution has examined altogether seven witnesses and proved documents like post mortem report, fardbeyan, inquest report etc. The learned Addl. Sessions Judge, placing reliance on the evidence and documents, held the appellants guilty for the offence punishable u/s 302/149, 147 and 148 of the I.P.C. and inflicted sentence, as indicated above.
5. The appellants have challenged the findings of the trial court on the following grounds:
(i) That no independent witness has been examined to support the prosecution case though the occurrence took place within the village at about 6.00 a.m. in the morning.
(ii) The informant has disclosed name of Jhagru Mahto and Mukund Mahto of the village who had seen the occurrence but none of them have come forward to corroborate version of the informant in court.
(iii) According to informant and other injured witnesses, the deceased as well as other injured were treated by Dr. T.P. Vaishya 4 but neither injury reports have been brought on record nor Dr. T.P. Vaishya has been examined to support the contention.
(iv) The Investigating Officer has not been examined, therefore, place of occurrence has not been proved.
(v) The informant has proved the signature on the fardbeyan but the fardbeyan on the basis of which Chas (M) P.S. Case No.15 of 1986 was registered has not been proved.
(vi) The material witnesses are Jhari Mahto PW1, Bhairo Chandra Mahto PW3 and Haripad Mahto PW4 and they are sons of deceased. PW2 Sugi Mahtain is daughterinlaw of deceased. Out of these four witnesses PW1, PW2 and PW3 have projected themselves as injured eye witnesses but no injury report has been proved to show that they were present at the scene of occurrence and sustained injuries in the incident. PW4 Haripad Mahto is hearsay witness. PW5 Kalpna Devi and PW6 Yamuna Mahatain who are also family members but they have not supported the prosecution case.
(vii) According to Dr. Binod Kumar PW7, none of the injury caused to the deceased were sufficient in ordinary course of nature to cause death. The death was the cumulative effect of the injuries caused to the deceased.
(viii) The appellants have proved orders and judgments as ExhibitsA to D from which it reveal that land dispute between the parties was prevailing from before and in one criminal case i.e. in G.R. Case No.1149 of 1973, T.R. No.138 of 1976 the deceased and his sons were convicted for the offence punishable u/s 323 of the I.P.C. In such circumstance, implication of more and more family members and relatives of the accusedappellants with false allegation cannot be ruled out. There are vital contradictions in the statement of PW1, PW2 and PW3, though they have claimed themselves to be eye witnesses.
(ix) The learned trial judge has erred in holding the appellants guilty u/s 302/149 of the I.P.C. According to F.I.R., initially the number of accused was only three and they are Lakhiram Mahto, Narain Mahto and Harilal Mahto and they caused assault to the deceased by means of lathi when the informant and other family 5 members intervened, rest of the accused who are named in the F.I.R., appeared and indulged in brick batting. It is disclosed that some of them had assaulted the informant and his brothers by means of lathi. The consistent evidence adduced by the prosecution is that only three of the appellants caused assault to the deceased. Had it been so, there was no unlawful assembly and therefore, conviction u/s 302 with the aid of Section 149 of the I.P.C. is unwarranted.
(x) The evidence on record is silent that indiscriminate assault by means of lathi was caused by all the accused to the deceased Raso Mahto rather evidence adduced by the prosecution indicates that only three accused had caused assault to the deceased. The post mortem report did not suggest that any individual injury caused to the deceased was sufficient to cause death in ordinary course of nature. It was deceased Raso Mahto who had somehow provoked the appellant to cause assault because he had been fencing the jack fruit tree though litigation between the parties over the land in question had taken place. None of the appellants except Charkhu Mahto was armed with any lethal weapon. Charkhu Mahto was armed with small axe but it was not used for committing murder.
(xi) Last but not least, even assuming it to be correct that the appellants had formed unlawful assembly to commit offence in prosecution of the common object of that assembly, common object of said unlawful assembly was not to commit murder and that inference could be drawn from the facts and circumstances appearing in the case at hand. If the occurrence as brought on record by the prosecution is admitted to be true, the appellants could be held guilty for the offence punishable u/s 325 of the I.P.C. with the aid of Section 149 of the I.P.C.
(xii) Learned counsel has placed reliance on the case laws reported in: 2006(2) SCC 450 (Radha Mohan Singh Vrs. State of U.P.), 2004(7) SCC 422 (Rudrappa Ramappa Jainpur Vrs. State of Karnataka)) and 2003(2) J.L.J.R. 78 (SC) (Basisth Roy Vrs. State of Bihar)
6. Learned A.P.Ps. appearing in criminal appeals referred to above, have opposed the arguments and submitted that all the 6 appellants formed unlawful assembly and in prosecution of the common object of that unlawful assembly, murder was committed. All the appellants who are named in the F.I.R. had taken active part in causing assault either to the deceased or to the witnesses. They had come prepared with lathi in their hand and they caused indiscriminate assault to Raso Mahto and injuries caused to him resulted in his death. The eye witnesses are injured witnesses. Only because they are sons of the deceased, their testimony, if reliable, could not be discarded. The prosecution has successfully proved the case against the appellants beyond shadow of all reasonable doubt and there is no room for defence. Learned counsel appearing for the State have placed reliance on the case laws reported in : AIR 2015 SCW 4266 (State of M.P. Vrs. Ashok & Others), 2003(1) SCC 425 (Yunis @ Kariya Vrs. State of M.P.), AIR 1965 SC 202 (Masalti & Others Vrs. State of Uttar Pradesh) and 2011 (2) JLJR 61 (SC) (Amerika Rai Vrs. State of Bihar).
7. Heard rival submissions and perused the record and impugned judgment. The fact which has come up from the evidences available on record is that on the date of occurrence at about 6.00 a.m. Raso Mahto (deceased) was indulged in fencing a jack fruit tree claiming it to be own. The appellants were having land dispute from before and they had also been claiming aforesaid jack fruit tree and the land on which it was standing. Initially three of the appellants reached to the place of occurrence and caused assault to Raso Mahto by means of lathi. After sustaining injury Raso Mahto fell down. Hearing alarm raised by Raso Mahto, his sons and relatives i.e. PW1, PW2 and PW3 attracted towards the place of occurrence and they intervened but they were also subjected to assault by the appellants and their associates who joined them. Brickbatting had also taken place. Raso Mahto and other injured i.e. PW1, PW2 and PW3 had gone to the clinic of Dr. T.P. Vaishya for their treatment where Raso Mahto was declared dead but remaining injured were treated by the doctor. Fardbeyan of informant Bhairo Mahto PW3 was recorded at the clinic and that put the law into motion, investigation was carried out and after collecting evidence, chargesheet against the appellants 7 including the appellants who are no more in this world was submitted.
8. We have gone through the evidence available on record and we find that PW1, PW2 and PW3 have proved the factum of occurrence and they have described the role played by each and every appellant. Before we deal with the conviction of the appellants recorded u/s 302/149 of the I.P.C., we would like to bring on record laches and lacunae appearing on the part of prosecution. The fardbeyan has not been proved. Since I.O. has not been examined, the place of occurrence has not been pinpointed. The contradictions which have taken from the mouth of eye witnesses during their cross examination could not be referred to the I.O. The witnesses who have claimed themselves that they had sustained injury in the incident, to prove their presence at the time of occurrence, have failed to bring on record any injury report.
9. It is true that PW1, PW2 and PW3 have claimed that they had sustained injury in the incident and they had witnessed the occurrence. PW3 is daughterinlaw of the deceased and she has also been claiming to be an eye witness. We do not find material contradiction in the statement of aforesaid three witnesses. But then, we have to deal with whether the unlawful assembly formed by the appellants was with the common object to commit murder ?
The crucial question to determine is whether the assembly consisting of five or more persons was unlawful and whether said persons entertained one or more of the common object, as specified under Section 141 of the I.P.C. While determining this question, it becomes relevant to consider whether the assembly consisting of some persons were merely passive witnesses and had joined the assembly, as a matter of fact, either out of curiosity without intention to entertain the common object of the assembly ?
In fact, Section 149 of the I.P.C. makes it clear that if an offence is committed by any number of unlawful assembly in prosecution of common object of said unlawful assembly and each members of that assembly knew it to be likely to be committed in prosecution of that object, every person who, at the time of 8 committing of that offence, is a member of said assembly, is guilty of that offence. Here, in the case at hand the evidence on record at least suggest that assemblage of the appellants with lathi in their hand was certainly for unlawful purpose and therefore, the assembly was unlawful.
Now, the next question arises as to what was the common object of that unlawful assembly and to know or to judge the common object of that unlawful assembly, facts appearing in each and every case is required to be considered and that would lead to a correct inference. The evidence available on record indicates that three appellants armed with lathi appeared at the scene of occurrence and caused assault to the deceased and after sustaining injury he fell down. It is nowhere stated by the witnesses that after sustaining injury when the deceased fell on the ground, indiscriminate assault by means of lathi was caused, rather evidence available on record speaks that the assailants started causing injury by means of bricks and stones. PW1, PW2 and PW3 intervened to save the deceased but they were subjected to assault by the appellants. Since no injury report is available, even on the oral evidence it could be held that they might have sustained simple hurt. What we would like to bring on record is, whether the appellants were having intention to commit murder and that was the common object of that unlawful assembly and each and every member of that assembly has reasons to believe that such an offence is likely to be committed in prosecution of the common object of that unlawful assembly ?
It appears from the evidence that 23 lathi blows were inflicted on the person of deceased causing injury on his head, certain abrasion and bruise were also appearing on the person of deceased but the post mortem report and the evidence of doctor do not suggest that any individual injury was sufficient in ordinary course of nature to cause death. The injuries caused to the deceased were found grievous because it caused fracture of parietal bone. The doctor has admitted that death was the result of cumulative effect of injuries caused. Besides the above, we have already observed that no indiscriminate assault was caused to the deceased by the appellants.
9Only three of the appellants caused assault to the deceased by means of lathi. It is nowhere stated that repeated lathi blows were hurled after the deceased fell down on the ground. The prosecution witnesses have turned the story and said that the accused persons further caused assault by means of bricks and stones. In this context, the judgment reported in 2006(2) SCC 450 (Radha Mohan Singh Vrs. State of U.P.) para 21, 22, 23 and 24 appear relevant in which the judgment relied upon by their Lordships have been referred. We also feel it desirable to reproduce the same as hereunder: "21. The question arises whether the conviction of the remaining accused under Section 302 read with Section 149 IPC is legally sustainable. The scope of Section 149 IPC was explained in Mizaji v. State of U.P. which decision has been followed in many later cases, in the following manner:
The first part of Section 149 IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to the committed. The expression "know" does not mean a mere possibility, such as might or might not happen. Though it can be said that when an offence is committed in prosecution of the common object, it would generally be an offfence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149, Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. (AIR p. 572) 10
22. In Allauddin Mian v. State of Bihar the import of Section 149 IPC was explained as under: (SCC pp. 1618, para 8) This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be safely construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of any one or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149 IPC. ... It is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same under Section 149 IPC."
23. As mentioned earlier there was no such motive which could have impelled the accused persons to commit the murder of Hira Singh as he had merely declined to ask or persuade his younger brother PW 1 Ganesh Singh from giving evidence against A1 and A5 in the case relating to assault made upon Udai Narain. The statement of Ganesh Singh had already been recorded under Section 161 CrPC. The deceased was not himself a witness in the said case. A2, A3 and A5 did not cause any injury to the deceased. The incised wound on the body of the deceased is of very small dimension and is only skindeep, which shows that A4 did 11 not wield the farsa with any intention or object to cause injury to the deceased. In view of these features of the case, it cannot be held that the common object of the unlawful assembly was to commit the murder of the deceased or that the members of the unlawful assembly knew that murder is likely to be committed in prosecution of the common object of the assembly. However, as members of the unlawful assembly carried deadly weapons, the knowledge that grievous injury may be caused can certainly be attributed to them. We are, therefore, of the opinion that conviction of A 3, A4 and A5 under Section 302 read with Section 149 IPC deserves to be set aside and instead they are liable to be convicted under Section 326 read with Section 149 IPC for which a sentence of 7 years' RI will meet the ends of justice.
24. In the result, the appeal filed by Radha Mohan Singh @ Lal Saheb is dismissed with the modification that his conviction is altered from Section 302 read with Section 149 IPC to that under Section 302 IPC. He is sentenced to imprisonment for life under the said section. The appeals filed by Kapil Dev Singh, Devender Singh alias Mutuk Singh and Kaushal Kishore Singh are partly allowed. Their conviction under Section 302 read with Section 149 IPC and the sentence of imprisonment for life imposed thereunder are set aside. They are instead convicted under Section 326 read with Section 149 IPC and for the said offence they are sentenced to undergo 7 years' RI. The conviction of all the appellants for the remaining offences as recorded by the learned Sessions Judge and the sentences imposed thereunder are affirmed. All the sentences imposed upon the appellants shall run concurrently. The appellants shall surrender forthwith to undergo the sentences imposed upon them. The Chief Judicial Magistrate, Ballia (U.P.) is directed to take immediate steps to take the appellants into custody. After the appellants have been taken into custody, their sureties and bail bonds shall stand discharged."
10. In view of the facts and circumstances available on record and also relying on the judgment cited above, we feel it desirable to hold that the unlawful assembly was not having common object to commit murder rather the common object of the assembly was to restrain the deceased from fencing the land within which jack fruit tree was standing and to make their protest effective they had been to the place of occurrence with lathi in their hand. Lathi is not a weapon to commit offence like murder. One of the appellants Charkhu Mahto was allegedly armed with small tangi but it was not used for committing injury to the deceased and that supports this fact that the 12 appellants were not having intention to commit murder. The manner of assault do not suggest or corroborate that the appellants had assembled to commit murder. At best, an inference could be drawn from the facts on record that they had been to the place to cause hurt or grievous hurt to the deceased and his family members in order to restrain them from fencing the land on which jack fruit tree was standing. The same view has been taken by their Lordships in the judgment of Radha Mohan Singh Vrs. State of U.P (supra).
11. We have also gone through the judgments cited by the prosecution but again we would like to bring on record that common object of any unlawful assembly could be gathered from the overt act committed by members present in that unlawful assembly, the weapon which they hold and the manner of assault and we do not find that overt act committed by the appellants from the weapon used by them or the manner in which assault was caused suggest that they were having common object to commit murder.
12. Considering all these aspects and the discussions made above and also placing reliance on the judgments cited by the appellants, we feel inclined to alter the sentence from Section 302/149 of the I.P.C. to Section 325/149 of the I.P.C. Accordingly, the conviction and sentence passed u/s 302/149 of the I.P.C. is altered to Section 325/149 of the I.P.C. and the appellants, instead of suffering imprisonment for life, shall undergo R.I. for four years u/s 325/149 of the I.P.C. and also to pay fine of Rs.2000/ each. In default of making payment of fine, they shall suffer further imprisonment for six months.
We do not find that any of the appellant has been charged u/s 147 of the I.P.C. and therefore, the conviction u/s 147 of the I.P.C. recorded by the learned Addl. Sessions Judge was unwarranted.
All the appellants have been charged for the offence punishable u/s 148 of the I.P.C. but all of them were not armed with deadly weapon at the time of committing rioting. Only one appellant namely Charkhu Mahto was having small axe in his possession and therefore, the conviction and sentence recorded against appellant Charkhu Mahto u/s 148 I.P.C. is hereby upheld but the conviction and 13 sentence passed u/s 148 of the I.P.C. against rest of the appellants stands set aside.
The appellants namely, Bhopal Mahto, Bharat Mahto, Charan Mahto, Bhuwan Mahto, Jagdish Mahto, Harlal Mahto, Sunder Lal Mahto and Charkhu Mahto who are on bail, their bail bonds are hereby cancelled and they are directed to surrender before the convicting/successor court within six weeks from today failing compliance the bail amount shall be forfeited and the convicting/successor court shall issue processes to secure their attendance.
It is made clear that after securing attendance of the appellants, modified conviction warrant, in view of the findings given above, shall be issued. Since appellant Lakhiram Mahto has already remained in custody for more than ten years, his detention shall be considered according to modified conviction warrant.
13. In the result, these appeals stands dismissed with above modification in the conviction and sentence.
(D. N. Upadhyay, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated : 04.02.2016
NKC// A.F.R.