Jharkhand High Court
State Of Jharkhand vs Arjun Mahto on 11 October, 2012
Equivalent citations: 2013 (1) AJR 341
Author: D.N.Patel
Bench: D.N.Patel, Prashant Kumar
DEATH REFERENCE NO. 02 OF 2011
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In the matter of reference vide letter no. 65 dated 28th March,20211referred by
Additional Sessions Judge, F.T.C.-II, Giridih in Sessions Trial No. 357 of 2001.
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State of Jharkhand .. .. .. .. .. .. Appellant
Versus
Arjun Mahto .. .. .. .. .. .. .. Respondent.
With
CRIMINAL APPEAL NO. 301/2011
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Against the Judgment of conviction dated 14.03.2011 and order of sentence dated
17.03.2001passed by Additional Sessions Judge, Fast Track Court-II, Giridih in Sessions Trial No. 357 of 2001.
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Arjun Mahto .. .. .. .. .. .. .. Appellant
Versus
State of Jharkhand .. .. .. .. .. .. Respondent.
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For the Accused-Appellant: Sri B.M.Tripathi, Sr. Advocate.
For the Respondent-State : A.P.P.
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PRESENT
HON'BLE MR.JUSTICE D.N.PATEL
HON'BLE MR. JUSTICE PRASHANT KUMAR.
Per Prashant Kumar,J This appeal is directed against the judgment of conviction
dated 14.3.2011 and order of sentence date 17.03.2011 passed by Additional Sessions Judge, Fast Track Court-II, Giridih in Sessions Trial No. 357 of 2001 whereby and where under he convicted the appellant under sections 302/34 , 436 of the I.P.C. and sentenced him to undergo R.I. for seven years for the offence under section 436 of the I.P.C. and also awarded death penalty against him for the offence under section 302 of the I.P.C.
2. Learned Additional Sessions Judge, F.T.C.-II Giridih made reference under section 366 of the Cr. P.C. for confirmation of death reference.
3. The case of prosecution in brief is that in the night of 15/16 th April, 1999 at about 1.00 a.m. Jageshwar Mahto, Nandlal Mahto, Arjun Mahto (appellant),Sukhdeo Sao, Raju Sao, Khubi Sao, Binod Sao and Kishun Sao arrived in the Angan of informant. it is further alleged that when informant's daughter opened the door of the room for easing , they saw accused persons and raised alarm. Thereafter, accused persons cut informant's daughters namely, Rekha Kumari and Gita Kumari in two pieces by knife and sword. It is further stated that immediately after seeing the occurrence, informant and his wife closed the door of the room from inside. Thereafter, accused persons started cutting the door of the room by using axe and were saying that informant would not be spared and he will also be killed, because on earlier two occasions, he escaped. It is further alleged that when the door could not open, accused 2 persons put fire in the house of informant and fled away. It is stated that on the alarm raised by the informant and his wife, several villagers arrived and they extinguished fire from his house.
4. It appears that on the basis of aforesaid information, police instituted Birni P.S.case no. 34 of 1999 dated 16.04.99 under sections 436/302/34/120(B) of the I.P.C. and took up investigation. It appears that during investigation police prepared inquest reports of two deceased and send the dead-body for postmortem examination. It further appears that during investigation police arrested the appellant and after completing investigation police, submitted charge-sheet against him under section 302/34,436,120(B) of the I.P.C. It further appears that learned Chief Judicial Magistrate, Giridih took cognizance of the offences and then committed the case to the Court of Session as the offences under sections 302/34, 436 of the I.P.C. are exclusively triable by a Court of Session. It further appears that after commitment, charge framed against the appellant under sections 302/34, 436, 120(B) of the I.P.C. Said charges explained to the appellant to which he pleaded not guilty and claimed to be tried.
5. Thereafter, prosecution examined altogether nine witnesses in support of its case. After closure of the case of prosecution, statement of appellant recorded under section 313 of the Cr.P.C. in which his defense was of total denial. It further appears that appellant also examined two witnesses in support of its case. It appears that learned court below after considering the evidences available on record convicted and sentenced the appellant as stated hereinabove. Against that present appeal filed by the appellant and death reference was made for confirmation of death penalty.
6. Sri B.M.Tripathi, learned senior counsel appearing for the appellant submits that in the instant case, the entire case hinges on the testimony of P.W.2, 3, 4 and 5 who claim themselves to be the eye witnesses of the occurrence. He further submits that P.W.2 and 3 are daughters of informant, whereas P.W.4 is his wife. Thus, all the witnesses are closely related to each other and also with the two deceased. He further submits that prosecution witnesses admitted that there was previous enmity between the appellant's family and informant's family. Accordingly, he submits that evidence of P.W.2 to 5 is required to be scrutinized cautiously and carefully. He submits that on careful examination of the deposition of aforesaid four witnesses, it is clear that they are not the eye witnesses of the occurrence. All the witnesses admitted that at the time of occurrence they were sleeping inside the room and at that time, door of the room was closed from inside. He further submits that one of the deceased namely, Rekha Kumari who was aged about eleven years was dumb, whereas another deceased namely, Gita Kumari was aged about 18 months and was suffering from polio. Thus, there is no question of raising alarm by Rekha Kumari and age of another deceased was such that she could not disclose the names of seven accused persons in the mid night. He further submits that there was no hole in the door of the room. Thus, question of seeing the occurrence from inside the room does not arise. He further submits that there are 3 material contradictions in the statement of P.W.1 to P.W.5 from their previous statement before the police which makes them wholly unreliable and untrustworthy. He submits that, in fact, informant himself has killed his two daughters because one of them was dumb and another was suffering from polio and, thereafter, concocted a story and falsely implicated the appellant and other accused persons due to previous enemity. Accordingly, he submits that impugned judgment of conviction and order of sentence cannot be sustained in this appeal.
7. On the other hand, learned Addl.P.P. submits that admittedly occurrence took place in the Angan of informant that too, in the mid-night, thus, P.W. 1 to 5 who are inmates of the same family are the most natural witnesses to depose in this case. He further submits that aforesaid witnesses categorically stated that appellant alongwith other accused persons killed two deceased after slitting their neck with sharp cutting weapons. These witnesses further deposed that appellant and other accused persons put fire in their house. Accordingly, he submits that prosecution has proved its case beyond shadow of all reasonable doubts. Thus, learned court below rightly convicted and sentenced the appellant.
8. Having heard the submissions, we have gone through the records of the case.
9. In the instant case, from perusal of Ext.3 series, postmortem reports of Rekha Kumari and Gita Kumari, coupled with the evidence of P.W.9, it is clear that both the deceased died a homicidal death. The defense had not challenged the homicidal death of aforesaid two deceased. Under the said circumstance, the only question remained to be determined in this case, whether appellant involved in the commission of present crime. This brings us to carefully consider the evidence available on record.
10. P.W.1 Nandlal Sao is co-villager of informant- P.W.5 ( Haro Sao). He deposed that on the date of occurrence at about 1.00 a.m. in the night, he came out of his house after hearing hulla coming from the house of informant and went there. He saw that house of informant was burning. He also saw dead-body of informant's two daughters. He claimed that he alongwith others extinguished the fire. He also deposed that there was previous enmity between the informant and accused persons. During cross- examination, he deposed that informant and his wife had not disclosed as to how the occurrence took place. Thus, from perusal of statement of this witness, it is clear that he is not the eye witness of the occurrence.
11. P.W.2 Meena Kumari is one of the daughters of informant( P.W.5). She stated that at the time of occurrence she was sleeping and she heard writhing sound of Gita Kumari and Rekha Kumari. She then states that eight persons namely, Jageshwar Mahto, Nandlal Mahto, Arjun Mahto(appellant), Sukhdeo Sao, Raju Sao, Khubi Sao, Binod Sao and Kishun Sao were cutting her two sisters. She further deposed that accused persons knocked the door and threatening to kill all the inmates of her family. She then stated that when they did not open the door, accused persons put fire in her house. She further state that when villagers arrived accused persons fled away. She further stated that thereafter they came out of the room and saw dead-body of her two 4 sisters. During cross-examination her attention was drawn to her previous statement to which it was suggested by the defence that she had not stasted before the police that Jageshwar Mahto, Nandlal Mahto, Arjun Mahto (appellant), Sukhdeo Sao, Raju Sao, Khubi Sao, Vivek Sao and Kishun Sao cut Rekha Kumari and Gita Kumari. Here it is pertinent to mention that I.O. P.W.8 stated that this witness had not disclosed the names of aforesaid accused persons in her statement made under section 164 of the Cr.P.C. Aforesaid contradictions found in the evidence of P.W.2 are significant because it relates to manner of occurrence. P.W.2 at paragraph no.18 also admitted that when she and other family members came out of the room, accused persons were not present at the scene of occurrence.
12. P.W.3 Pinky Kumari is aged about 10 years on the date of her deposition. Thus, on the date of occurrence, she was aged about six years. This witness stated that at the time of occurrence she was sleeping in the room and at that time Rekha Kumari and Gita Kumari went outside the room alongwith her mother. She further deposed that sisters asked her mother to flee away as Jageshwar Mahto and others are coming for assaulting them. She then deposed that thereafter, her mother started raising alarm and at that time her two sisters remained in the Angan. She further stated that Jageshwar Mahto, Nandlal Mahto, Arjun Mahto (appellant), Sukhdeo Sao, Raju Sao, Khubi Sao, Vivek Sao and Kishun Sao asked her two sisters to get the door open, otherwise they will be killed. But her sisters declined to do so, thus,they have been killed. However, this witness admits that she could not see who had cut the neck of her sisters. She further states that accused persons put fire in her house at the time of retreat. During cross- examination her attention was drawn to her previous statement made before the police and defence suggested that she had not stated before the police that her two sisters asked her mother to flee away as Jageshwar Mahto and others were coming for assaulting them and accused persons were asking her sisters for getting the door open otherwise they will be killed and accused persons put fire in her house at the time of retreat. Aforesaid contradiction had been proved by the I.O. (P.W.9). Aforesaid contradictions are significant in nature.
13. P.W.4 Munna Devi is the wife of informant. She deposed that in the night of occurrence at about 12.-1.00 a.m. she was sleeping inside the room alongwith her children. In the night her daughter (Rekha Kumari ) woke-up for easing and she went in the Angan and she further deposed that her second daughter Gita Kumari also went there. She further stated that at that time she was burning lantern and during that period she heard hulla of her daughters that Jageshwar Mahto, Nandlal Mahto, Arjun Mahto (appellant), Sukhdeo Sao, Raju Sao, Khubi Sao, Vivek Sao and Kishun Sao were coming for assaulting them, whereupon she closed the door of the room. She further deposed that aforesaid persons had killed her daughters by assaulting them with sword. She further states that Jageshwar Mahto had killed her elder daughter, whereas Rajdeo and Khubi killed her younger daughter. She claimed that she saw the occurrence of from the gap of the door. She further states that on hulla, so many villagers arrived, butt 5 accused persons put fire in her house at the time of retreat. She further deposed that when they came out of the room they saw dead body of their two daughters. During cross-examination she stated that she had shown gap of the door to the investigating Officer. However, Investigating Officer stated at paragraph no.29 in his deposition that P.W.4 had never shown him any gap in the door. The I.O. further stated that during inspection of the scene of occurrence he had not found any gap and/or hole in any of the door of informant's house. Thus, claim of P.W.4 that she saw the occurrence from the gap of the door does not inspire confidence.
14. P.W.5 is the informant himself, who stated that at the time of occurrence, he was sleeping. He further deposed that his daughter Rekha Kumari and Gita Kumari woke-up for easing. His wife also woke-up and she started burning a lantern. He then deposed that thereafter his wife took Rekha and Gita in the Angan for easing. He then states that while Rekha Kumari was easing Jageshwar Mahto, Nandlal Mahto, Arjun Mahto, Sukhdeo Sao, Rajdeo Saw, Binod Sao, Khublal and Kishun arrived. Thereafter, Rekha Kumari raised alarm, whereupon his wife came inside the room and closed the door. He further deposed that he woke-up after hearing hulla of his wife. He further deposed that accused persons knocked his door and when the door was not opened, Jageshwar and Sukhdeo pressurized Rekha Kumaru for getting the door open, otherwise she will be killed. He then deposed that when Rakha Kumari did not succumb to pressure, Jageshwar Mahto, Sukhdeo Sao and Rajdeo Sao cut the neck of Rekha Kumari. He further stated that Rajdeo Sao cut the neck of his second daughter Gita Kumari. He further claimed that he was looking outside from the gap of the door. He further stated that accused persons after killing his two daughters threatened him and when he did not open the door, they put fire in his house. He further states that on hulla villagers arrived, then he opened the door and found that his two daughters had been killed and his house was burning. He further stated that villagers extinguished the fire. He further stated that in the morning he went to the police station and lodged F.I.R. by giving a written report. During cross-examination he claimed to have stated before the police that his wife after burning lantern went out of the room alongwith his daughters and she saw all the accused persons. He also claimed to have stated before the police that thereafter his wife came inside the room and closed the door. He denied the suggestion of defence that he made material development in his examination-in-chief. He also denied the suggestion of defence that his daughter Rekha Kumari was dumb, but he admits that his second daughter Gita Kumari was previously suffering from polio, but she become alright after treatment. However, at paragraph no.29, he admits that he had not stated in his written report all the facts which he stated in his examination-in- chief. His attention was also drawn to his previous statement that he has not stated before the police that Jageshwar, Sukhdeo and Rajdeo cut the neck of his daughter Rekha Kumari, whereas Gita Kumari was killed by Khubi Sao and Rajdeo Sao. Aforesaid contradictions were proved by P.W.8 (I.O.) at paragraph no.31 of his deposition.
615. P.W.6 Hazari Rajwar is a co-villager. He stated that after hearing about the occurrence, he went to the house of informant( P.W.5) and saw dead-body of his two daughters. He state that there was previous enmity between the informant ( Haro Sao) and the accused persons. During cross-examination he stated that out of two deceased daughters of informant, one was handicapped and another was dumb.
16. P.W.7 also stated that after hearing hulla, he went to the house of informant and saw dead-body of his two daughters. At paragraph no.6 he stated that he heard that one of the daughters of informant was suffering from polio, and another was dumb.
17. P.W.8 is the I.O. who states that on 16.04.99 at about 8 a.m. informant Haro Sao came at the police station and stated that his two daughters were killed. However, he deposed that when he asked Haro Sao to give written report, he did not give it and told that he would say about the occurrence at the place of occurrence. He stated that he entered aforesaid statement of Haro Sao in the station diary vide station diary entry no. 272 dated 16.04.99 and went to the place of occurrence. He further deposed that at the place of occurrence informant gave him a written report, which cognizable offence , thus, he took up investigation. He state that during investigation, he recorded the statement of witnesses, prepared inquest report, sends the dead-body for postmortem examination and inspected the place of occurrence. During cross-examination, he admits that when informant came to the police station and narrated about the occurrence, he did not disclose the name of any accused. This witness proved the contradictions in the statement of P.W.2, 3, 4 and 5. He also stated that during inspection of place of occurrence, he could not find any gap and/or hole in the doors of informant's house.
18. Thus, from perusal of entire evidence available on record, it is clear that case of prosecution wholly depends on the evidence of P.W. 2 to 5 who are closely related to each other and are inimical to accused persons including the appellant. From close scrutiny of the evidence of aforesaid witnesses, we find that at the time of occurrence, all the witnesses were inside the room. It has come in the evidence that deceased Rakha Kumari who was aged about eleven years was dumb and, thus, she was not in a position to speak and/or raise alarm. So far, another deceased is concerned, she was 18 months old at the time of occurrence. In that circumstance, the story narrated by P.W.4 and 5 that their daughters raised alarm after seeing the accused persons does not inspire confidence. The claim of P.W.4 and 5 that they saw entire occurrence from the gap and/or hole of the door is also not acceptable, in view of the statement of I.O. P.W.8 who categorically stated that at the time of inspection of place of occurrence, he could not found any gap in the door of informant's house. He also stated that even informant and his wife had not shown him any gap in the door, from where they witnessed the occurrence. From perusal of evidence of P.W.4, it is clear that when her two daughters went outside the room, she remained inside the room and was burning a lantern. She further stated that when her daughters raised alarm she closed the door from inside. Under the said circumstance, she has no occasion to see the occurrence 7 because there is no gap or hole in the door. I further find that there are significant and material contradictions in the evidence of P.W.2, 3, 4 and 5 in relation to the manner of occurrence, which makes aforesaid witnesses untrustworthy of being relied upon.
19. In view of the discussions made above, we find that evidence of P.W.2, 3, 4 and 5, who are closely related to each other and inimical to the appellant and other accused persons, are not wholly reliable, therefore, appellant can not be convicted on their evidence. Thus, we find that learned court below has committed material illegality in convicting and sentencing the appellant. Therefore, the same cannot be sustained in this appeal
20. In the facts and circumstances discussed above, this criminal appeal is allowed and the impugned judgment of conviction and order of sentence passed by the Addl. Sessions Judge-cum-F.T.C.-II, Giridih in Sessions Trial case no.357 of 2011 is set aside and the accused-appellant namely, Arjun Mahto, is acquitted from the charges levelled against him. Since the appellant is in custody, he is directed to be released forthwith if not wanted in any other case.
21. The death reference, being Death Reference no. 02 of 2011, is answered accordingly.
( D.N.Patel,J.) ( Prashant Kumar, J.) High Court of Jharkhand, Ranchi The 11th October, 2012 Raman /A.F.R.