Jharkhand High Court
Sanjay @ Gulabi Mahto vs The State Of Bihar (Now Jharkhand) ... on 2 May, 2006
Equivalent citations: [2006(3)JCR179(JHR)], 2006 (2) AIR JHAR R 478, (2006) 3 JLJR 254 (2006) 3 JCR 179 (JHA), (2006) 3 JCR 179 (JHA)
Author: R.R. Prasad
Bench: N. Dhinakar, R.R. Prasad
JUDGMENT R.R. Prasad, J.
1. Criminal Appeal No. 66 of 1998 is by A-l, A-3, A-4, A-5, A-6 and A-7 and Criminal Appeal No. 228 of 1998 is by A-2 in Sessions Case No. 417 of 1984/82 of 1988 on the file of the Sessions Judge, Godda. They were tried and convicted under Section 302 read with 34 of the Indian Penal Code and each one of them was sentenced to imprisonment for life. The above two appeals are against the said conviction and sentence.
2. In this judgment, the appellants (in both the appeals) will be referred as A-1 to A-7, in the same order, as they were arrayed before the Sessions Judge, and both the appeals are being disposed of by the following common judgment, for the sake of convenience.
3. All the accused were the residents of village Pitambar Kita. There were land disputes between the accused 1, 2, 4, 5, 6 and 7 and the deceased. Civil cases were instituted and the case went up to the High Court. The deceased succeeded in the civil litigation. This is said to be the motive for the occurrence which had taken place at 1.00 a.m. on 6/7.9.1980.
At about 1.00 a.m. on 6/7.9.1980, PW-2, Santosh Mahto, who is the son of the deceased Rishikesh Mahto, was sleeping on a cot in front of the house of Falguni Mahto. He woke up on getting a blow on his temple. He saw accused Nos. 1 to 7 and 7-8 unknown persons standing there. By that time, his father, Rishikesh Mahto, came out of the house and seeing the deceased the 1st accused, Jainarayan Mahto, stated that he must not be left alive. All the accused went towards his house where his father was standing. PW-2 , out of fear, ran away from the place and while running, he raised alarm. He also heard the sound of gun shot and later returned to the house. In the meantime, the deceased, who came out of the house, was attacked by all the accused and 2nd accused Sanjay Mahto shot at the deceased and A-3 threw a bomb at him. This was witnessed by PW-4, Usha Devi, who is the daughter of the deceased and who had come to stay in the house of the deceased at that time. After the deceased fell down and died, all the accused went away. PW-4 informed PW-2 after he returned as to what transpired. Thereafter, Fardbayan, Ext.1, was given by PW-2 at 7.00 A.M. at Thakur Gangti out post and later crime was registered under Ext.2. Investigation of the crime was taken up by Investigating Officer( the officer, who conducted investigation, was not examined as a witness in this case). After the investigation was taken up by the police officer, inquest was conducted and the body was sent for autopsy (the doctor who conducted autopsy was not examined and the post mortem certificate, Ext.3 was marked through an Advocate Clerk).
4. After the completion of investigation, final report was filed and the appellants denied the circumstances, put against them under Section 313 of the Code of Criminal Procedure.
5. The learned Counsel appearing for the appellants in both appeals submits that the prosecution did not prove the cause of the death of the deceased, Rishikesh Mahto as the doctor who conducted autopsy was not examined and marking of post mortem report through an Advocate's clerk will not enable the prosecution to rely on the contents, since the contents do not stand proved by such examination of an Advocate's Clerk. He also submits that evidence of PWs-2 and 4 are artificial in nature and their evidence cannot be accepted.
6. We have heard Mr. Shekhar Sinha, learned A.P.P., appearing for the State, on the above contentions.
7. The case of the prosecution is that the accused and the deceased were inimical towards each other on account of land dispute and that in the civil litigations, which ensued, the deceased was successful. According to the prosecution, at about 1.00 a.m. on 6/7.9.1980 accused 1 to 7 alongwith 7-8 others went to the house of the deceased and after beating PW-2 on the temple, caused the death of the deceased by shooting him and throwing a bomb. PW-2 in his evidence stated that he was sleeping on a cot in front of the house of one Falguni Mahto and on receiving the said injury, he woke up and saw the accused along with 7-8 others standing there. He has further stated that his father had come out and that he ran away from the place. It is the further evidence of PW-4 , who is the daughter of the deceased , that the accused 1 to 7 dragged her father into the house and later 2nd accused shot at while the 3rd accused threw a bomb. She has further stated that after PW-2 returned, she informed him as to what transpired in the house. On going through the evidence of PWs-2 and 4, we find it highly artificial and unnatural. Admittedly, it was a dark night. PW-2 was sleeping outside the house in a cot in front of the house of one Falguni Mahto. We do not find any reason as to why the appellants-accused should beat PW-2 so as to awake him. Though, it is the case of the prosecution that PW-2 was beaten by the appellants, PW-2 did not come out with any version that while he was running from the place, he was prevented by the accused so that they could continue their attack and inflict injury on the deceased. It is also difficult to believe the evidence of PW-2 that on seeing the accused going towards his father, he ran away, as he was aware that his sister was in the house at that time. No brother is expected to leave his sister when many people enter the house, armed with various weapons, including fire arms.
8. We have also perused the evidence of PW-4 . She has come out with exaggerated version. She has said that the occurrence had taken place inside the house. We are at a loss to understand as to why the appellants-accused should drag the deceased inside the house and thereafter shoot him in a room in which she has entered. It is also unbelievable that the accused did not cause any harm to PW-4 and went away after shooting her father. There is also no evidence in respect of the nature of light available in the house, In the above circumstances, it is difficult to accept that PW-4 would have been in a position to identify the accused at the time of occurrence. It is also worthwhile to remember that though PW-2 and 4 have claimed that along with A-1 to A-7, 7-8 unknown persons were also present, the prosecution did not take any steps to trace the other accused for them to be arrested for the purpose of facing prosecution in this case.
9. We have already noticed that the Investigating Officer was not examined and the prosecution did not even examine the doctor, who conducted autopsy. We, therefore, cannot rely upon the post mortem certificate issued by the doctor, as the contents do not get proved. The Advocate's Clerk, who was examined before the trial court and through whom the post mortem certificate was marked, is not a competent witness to speak about the contents, since admittedly he was not present at the time of post mortem. We, therefore, find that the prosecution not only failed to establish the cause of death of the accused but also failed to establish the case against the accused beyond all reasonable doubt.
10. We, therefore, set aside the conviction and consequence sentence imposed upon the appellants by allowing the appeals.
The appellants, 1. Jai Narayan Mahto, 2. Nirmal Mahto, 3. Hansodhar Mahto, 4. Jitendra Mahto, 5. Moti Lal Mahto and 6. Sakaldeo Mahto (appellants in Cr.Appeal No. 66 of 1998), who are on bail; are discharged from the liability of their bail bonds. The appellant, Sanjay @ Gulabi Mahto (appellant in Cr.Appeal No. 228 of 1998), who is in jail, shall be released forthwith, unless he is wanted in connection with any other case(s).