Jharkhand High Court
Bhim Mahto And Ors. vs The State Of Bihar (Now Jharkhand) on 13 November, 2006
Equivalent citations: [2007(4)JCR610(JHR)]
Author: D.P. Singh
Bench: Amareshwar Sahay, D.P. Singh
JUDGMENT D.P. Singh, J.
1. The appellants (in Criminal Appeal No. 362 of-2000(R) and Criminal Appeal No. 384 of 2000(R)) on being tried, have been found and held guilty for the offence under Section 302/149 of the Indian Penal Code and the appellants in Criminal No. 411 of 2000 have been found and held guilty for the offence under Sections 302/34 and 302/149 of the Indian Penal Code, by the Additional Session. Judge-I, Bermo at Tenughat by common judgment dated 6.9.2000 and 7.9.2000 in Sessions Trial No. 228 of 1990/211 of 1994 and sentenced to undergo rigorous imprisonment for life on each count. As all the appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment.
2. The factual matrix leading to these appeals are as follows:
Informant, Phulchand Mahto was planting sweet potato (Shakarkand) along with deceased in the morning of 17.7.1987 in the field situated near their house in village Taranan, Tola- Beharatand, when appellants Kartik Mahto Sukar Mahto and Bhim Mahto came there with bulloik to plough and tried to plough the field belonging to them. As stated this was protested and they were forced to retreat by the informant side. However, within short time, all the above named accused persons along with appellants Beni Mahto, Manjhi Mahto, Nunuchandra Mahto, Latu Mahto, Koyla Mahto, Khiru Mahto, Mahru Thakur returned armed variously with 'Bhakuwa', 'Farsa', sword, 'lathi', bows and arrows. According to the informant, appellant Beni Mahto was carrying 'Bhakuwa', appellant Kartik was carrying sword, appellant Koyal Mahto was carrying 'Farsa', appellant Khiru Mahto was carrying Ballam, appellant Sukar Mahto was carrying bow and arrows appellant Nunuchand was caring Tangri appellant Bhim Mahto was carrying Bhakuwa, and others were carrying lathi.
3. According to informant P.W.4, Budhu Mahto, deceased was given Bhakuwa blow by appellant Beni Mahto on his neck after which he tell down Thereafter, appellant Kartik Mahto started giving sword blows on his father causing various injuries on his body. It is further asserted that when the informant and his uncle Bhola Mahto tried to intervene, they were also assaulted. Appellants further assaulted Sanjhwa Devi and Lakhan Mahto, who was ploughing the held thereby. During this incident, appellant Sukar Mahto was shooting arrows, on the informant side. The informant and other injured witnesses raised alarms on which, the villagers arrived there and saw the occurrence. The appellants thereafter fled away. The reason behind this incident was said to dispute regarding 'Gairmajarua' land, which was possessed by the informant in the same plot since before. The father of the informant, Budhu Mahto died on the spot.
4. The matter was reported to Nawadih Police, which arrived at the spot at about 11.00 A.M. The police recorded the statement of P.W. 4 on the spot in presence of witnesses and started investigation. The police prepared inquest report of the dead body of Budhu Mahto and seized bloodstained 'Bhakuwa', soil and seven arrows from the spot in presence of witnesses. On the basis of this fardbeyan, Nawadih P.S. Case No. 38 of 1987 was registered under Sections 117, 148, 149, 123, 324, 307, 302 and 147 of the Indian Penal Code. The police completed investigation and finally submitted charge sheet against eleven accused persons. Their case was committed to the Court of Sessions for trial. All the eleven accused persons were charged under Sections 326, 147, 148, 447 and 302/149 of the Indian Penal Code, to which they pleaded not guilty. They were further charged under Section 302/34 of the Indian Penal Code.
5. The main defence taken by the appellants was false of implication. They also claimed that they were ploughing the land in question since before. However, the learned trial court after examining the witnesses found and held all of them guilty under Section 302/149 of the Indian Penal Code. The learned trial court has further found and held guilty appellants Beni Mahto and Kartik Mahto in Criminal Appeal No. 411 of 2000 (R) under Section 302/34 of the Indian Penal Code. All the appellants have been sentenced to serve rigorous imprisonment for life for the offences proved against them. However, they have been not sentenced for any of the minor offences though found to be proved against them. It has been further submitted that appellants Koyla Mahto, Mahru Mahto and Khiru Mahto died during pendency of these appeals.
6. The present appeals are preferred, mainly, on the grounds that the learned trial court has mis-interpreted the facts and evidence available on record. It is also asserted that all witnesses were interested and related. Therefore, their statements should have been considered more strictly. It is also asserted that there were major discrepancies between the ocular version and medical evidence. It is also asserted that the materials exhibits were not sent for forensic report and it was not proved that in fact the bloodstains available on the weapons, 'Bhakuwa' and sword, were human blood. According to appellants in Criminal Appeal No. 362 of 2000 (R), it is submitted that they were not attributed any specific assault on the deceased. Therefore, their conviction under Section 302/149 of the Indian Penal Code cannot be sustained. Similarly appellants in Criminal Appeal No. 384 of 2000(R) submitted that their participation in causing death of Budhu Mahto has not been proved. It is also submitted that injuries found on P.W.3, P.W.4, P.W 5 have not been supported by proper medical evidence. Therefore, they may not be convicted for any offences. The learned Counsel for appellants in Criminal Appeal No. 411 of 2000 (R), asserted that witnesses have exaggerated and attributed to them a number of assaults which were not supported by postmortem report and cause reasonable doubt on the veracity of their testimony. Learned Counsel has further tried to point out that presences of P.W.3, P.W.5 and P.W. 6 is doubtful as they have admitted that they were not present at the place of occurrence. Therefore, the conviction may be set aside. Learned Counsel further submitted that the appellants have remained in custody for sufficient time, which may be considered for taking lenient view.
7 Learned A.P P. for the Sate opposed these contentions on the grounds that an old person was subjected to assault by all these appellants 'particularly by appellants Beni Mahto and Kartik Mahto with sharp cutting weapons resulting in instantaneous death. It is also asserted that all witnesses have supported the prosecution version beyond reasonable doubts and injuries on P.W.3, P.W.4 and P.W. 5 have been proved by P.W.13 Deoki Rana, who was a Compounder of the hospital in which injured Bhola Mahato and Sanjhwa Devi were treated vide Ext. 4 series. Therefore, the present appeals are without merit and deserve to be dismissed.
8. We have anxiously considered the points raised by the learned Counsels for the appellants. The facts on record as brought by witnesses and relied by the trial court are that in the morning of 17.7.1987, an incident took place, in which Budhu Mahot, father of P.W.3, P.W.4 and P.W. 5 died. The dead body of Budhu Mahto has been seized by police after 11.00 A.M. from the field situated near the house of the appellants. The inquest report was prepared by P.W. 16 in presence of P.W. 8 Mohan Mahto, P.W.9 Awadh Kishore Pandey who have supported the prosecution case. This inquest report has been marked Ext. The police has further seized bloodstained soil and 'Bhakuwa' and seven arrows from the place of occurrence, which were marked as material Exts. 1/2, 3 and 4. The prosecution has proved the seizure by examining P.W. 10 Shanu Mahto, P.W. 12 Deglal Manto, being the witnesses of the seizure list prepared on the spot. These items were produced before the court below by P.W.14 Shyam Narayan Yadav. The fardbeyan on the spot has been proved by formal witnesses, P.W. 2 Mukesh Kumar and P.W. 15 Bijay Kumar Sinha. The witnesses have stated specifically that the place of occurrence was situated by the side of the house belonging to the deceased, which was a paddy field ready for paddy planting. It is also admitted fact on record that this plot of land was the bone of the contention between the parties where the appellants have gone to plough the land in the morning. It is not disputed fact that in the morning of 17.7 1987, appellants Bhim Mahto, Kartik Mahto, Sukar Mahto were turned back by the deceased and his sons after which the said incident took place. The appellants have asserted in their statements under Section 313 of the Code of Criminal Procedure that they were ploughing the lands since time immemorial. Therefore, this fact remains that they had claimed the land as their own and on the date of occurrence they have gone to plough the land.
9. So far as the prosecution version is apparent from the first information report itself that the deceased along with his son Bhola Mahto was planting Shakarkand in the field, when three appellants reached there to plough the land. The informant has asserted specifically that they were turned back after which they returned armed variously in the mob, having prepared themselves to assault the informant side. P.W.1 Akal Mahto, P.W. 3 Lakhan Mahto, P.W.4 Phulchand Mahto, P.W. 5 Bhola Mahto and P.W. 6 Jaya Devi have asserted to be eyewitnesses of the occurrence. P.W. 7 Sumia Devi has been tendered by the prosecution. P.W. 8 Mohan Mahto, P.W. Awadh Kishore Pandey are hearsay witnesses of the occurrence, who have gone to the place of occurrence to find Budhn Mahto dead with various injuries on his person. P.W.10 and P.W.12 are the seizure list witnesses, who have also seen the dead body at the place of occurrence. The prosecution, therefore, has brought on record five eyewitnesses of the occurrence out of P.W.1 Akal Mahto as independent witness. We have gone through the evidence of P.W.1 minutely. He specifically mentioned the name of the appellants being seen by him coming armed with specific weapons and initiating assault on Budhu Mahto. He has named appellant Bern Mahto to have given the first blow with Bhakuwa on the neck, thereafter appellant Kartik Mahto giving a sword blows on Budhu Mahto after he fell down. According to him, when P.W. 5 tried to intervene but he was also assaulted by the appellants. He further named Sanjhwa Devi, wife of deceased Budhu Mahto who tried to intervene being assaulted by the appellants. He further gave details as to how P.W.4. Phulchand Mahto was assaulted. Thereafter, the appellants fled away leaving the weapons on the spot. He has been- cross-examined at length, in which he asserted that at that time he was tending cattle. He described the place of occurrence, a plot of land lying between other plots of paddy belonging to deceased. Nothing has been brought on record why he should take side of informant and make false allegation against the appellants. P.W.3, P.W.4 and P.W. 5 are brothers. P.W. 4 was planting 'Shakarkand' along with the deceased when appellants came there to plough the land. He further asserted that when they were turned back all of them came back various armed and started assaulting the deceased. He has been cross-examined in which he has admitted that for the disputed plot, dispute has continued since before. He has described the disputed plot as Plot No. 3562 from Khata No. 1, which was being claimed by the appellants also He specifically mentioned vide para-24 that Budhu Mahto died after being assaulted by appellants Bern Mahto and Kailil Mahto. He has mentioned about injuries found on P.W. 3 and P.W. 5 and him after caused by weapons being held by other appellants. P.W.3 Lakhan Mahto similarly supported m details the prosecution version. Fie further mentioned in para-2 that firstly appellant Beni Mahto assaulted the deceased with Bhakuwa on his neck and thereafter appellant Kartik gave sword blows many times resulting in instananeous death. He further asserted vide para-23 that the appellants Beni Mahato and Kartik Mahto gave several blows on the deceased. He has claimed to possess the documents connected with the plot in dispute. According to him, the disputed plot was situated in an area of 2.18 acres. Certain minor discrepancies have been pointed which does not make much difference regarding the statement of the occurrence and the manner in which assault was committed. P.W.5 Bhola Mahto similarly gave description of the incident and he with stood the test in the cross-examination. During his lengthy cross-examination, he gave vivid description how all the appellants assaulted the different witnesses and the deceased vide para- 24 and 25 PW6, wife of P.W. 4 further supported the prosecution version by giving detailed description of the occurrence. We do not find any material contractions in then statement regarding the manner of assault, participation of appellants in the whole occurrence.
10. P.W. 8 arrived at the place of occurrence immediately afterwards to find Budhu Mahto dead and the weapon of assault, Bhakuwa arrows, living on the spot while other witnesses, P.W 3, P.W.4 and P.W. 5 were present with bleeding injuries on their persons P.W.9 Awadh Kishore Pandey also arrived at the place of occurrence and supported the prosecution case. PW 12 Deglal Mahto has also supported the prosecution case and proved the seizure list along will P.W.10 , P.W.14 Deoki Rana, who is a compounder of sadar Hospital in Giridih, has brought bed head tickets of injured Sanjhwa Devi and Lakhan Mahto as Ext. 6 and 6/A on the direction of the court P.W. 16 is the Investigating Officer, who supported the prosecution case produced by the witnesses as mentioned above P.W. 11 is Dr. Shivnaryan Prasad, who has conducted the postmortem examination on the dead body of Budhu Mahto vide Ext. 3 and described thirteen injuries on the dead body caused by sharp cutting weapon. All these injuries combined together were sufficient in nature to cause death. Injuries Nos. (ii) and (viii) were found dangerous in nature appear sufficient to cause death. These injuries of different sizes on various parts of the dead body, right side of head behind right ears 1"x1/2"x3" deep, on the back, 5"x 4"x 4" deep on the left shoulder externally and thereafter on dissection fracture of two ribs both left and right chest shows that the deceased was brutally assaulted resulting in his instantaneous death. This witness has suggested that the death might have occurrence within 24.00 to 32.00 hours of the time prior to the time when the postmortem was held at 12.00 Noon on 18.7.1987. This further supports the prosecution version that the incident took place in between 5.00 A.M. to 6.00 A.M. on 17.7.1987. After considering all these facts and circumstances mentioned above, we are of the view that the prosecution has been able to prove that Budhu Mahto was assaulted with sharp cutting weapons in the morning of 17.7.1987 resulting in his instantaneous death.
11. The prosecution version is that appellant Beni Mahto firstly assaulted the deceased with 'Bhakuwa' on his head, which is supported by injuries Nos. (I) and (II) after which he tell down. It is further alleged that thereafter Budhu Mahto was assaulted with sword by appellant Kartik Mahto. Injury No. (II). Incised wounds 5"x 4" deep on left shoulder. Injury Nos. (iv) (v), (vi) and (vii), all other parts of the body arms chest shows that they were incised and deep, which may be caused a weapon may be likes sword. The fracture of ribs further shows that the deceased was given blows with lathi etc. P.W.1, P W. 3, P.W. 4,PW 5 and P.W. 6 have given the details of the manner in which the appellants also assaulted the deceased. We have no reason to disbelieve those eyewitnesses whose versions have supported the injuries found on the deceased by PW 11. The fact therefore, remains that the prosecution has been able to prove that the deceased was assaulted by appellants prior to his death in which appellants Bent Mahto and Kartik Mahto took lead by assaulting the deceased with Bhakuwa and sword causing as many as thirteen injuries on his body. It has also come on record that this assault took place after appellants Bhim Mahto, Kartik Mahto and Sukar Mahto were turned back and denied to plough the land claimed by the informant side. According to the prosecution case, thereafter all the appellants came there prepared to assault the informant side armed variously. It is also found that all the appellants have used the weapons in their hand resulting in injuries on P.W.3, P.W.4, P.W. 5 and one Sanjhwa Devi since dead which have been supported by bed head tickets brought on record by P.W.14. The learned court below has not sentenced the appellant for any of the offences caused by them by P W.3, P.W.4 and P.W. 5 and Sanjhawa Devi just because the doctor treating them has not been examined, but it was categorically held that the incident look place and injures were caused on the eyewitness by other appellants. Therefore the fact remains that all these appellants having prepared in furtherance of common object to commit assault took active part in the alleged occurrence in the morning of 17.7.1987 in which Budhu Mahto lost his life and other witnesses received various injuries on their persons. In the facts and circumstances mentioned above, we are of definite view that the conviction of the appellants under Section 302/149 of the Indian Penal Code is well proved and does not require any interference.
12. Learned Counsel for the appellants Beni Mahto and Kartik Mahto, submitted that they were not charged separately for offence under Section 302 of the Indian Penal Code, but sentenced to rigorous imprisonment for life separately on this count. According to the learned Counsel, in absence of separate specific charge under Section 302/34 of the Indian Penal Code, the conviction of the appellants for the said offence cannot, be sustained and deserves to be set aside. In this context, learned Counsel has relied a decision reported in the case of Subran @ Subramaman and Ors. v. Stare of Kerala and submitted that appellants Beni Mahto and Kartik Mahto may be convicted under Section 302/149 of the Indian Penal Code only and not separately under Section 302/34 of the Indian Penal Code.
13. We have gone through the charge framed by the learned trial court and found that in the combined charge framed against all the appellants, another charge under heading of Section 302/34 of the Indian Penal Code has been mentioned. It is true that separate charge form was not used by the trial court against these two appellants while framing charge, but the explanation of Charge has been made. It further appeals from the evidence of record that witnesses specifically asserted regarding the assaults made by those two appellants upon deceased Budhu Mahto with Bhakuwa and sword repeatedly. This point has been further explained to the appellants during their statements being recorded under Section 313 of the Code of Criminal Procedure. Therefore, we are of the view that no material prejudice cane be said to have occurred in defending themselves from the charge under Section 302/34 of the Indian Penal Code. Therefore, the conviction of appellants Beni Mahto and Kartik Mahto under Section 302/34 of the Indian Penal Code is hereby confirmed.
14. Having considered till those facts and circumstances, we are of the view that the present appeals have got no merit in it. Accordingly, the conviction of the appellants, and sentence passed against them are hereby confirmed. Accordingly, these appeals are dismissed. The bail bonds of appellants in Criminal Appeal No. 362 of 2000 (R) and Criminal Appeal No. 384 of 2000 (R) are hereby cancelled and they are directed to surrender forthwith before the court below for serving out the sentence. The learned court below is also directed to take all coercive steps in accordance with law for apprehension of a appellants to serve out the sentence.
Amareshwar Sahay, J.
15. I agree.