Jharkhand High Court
Chatuwa Mahto Son Of Late Bhukhla Mahto vs The State Of Jharkhand on 25 February, 2020
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (D.B.) No.834 of 2012
(Against the judgment of conviction dated 15.05.2012 and the order of sentence
dated 16.05.2012 passed by the learned Judicial Commissioner-II, Khunti in
Sessions Trial No.188 of 2008/317 of 2008)
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1. Chatuwa Mahto son of late Bhukhla Mahto
2. Nirmala Devi wife of Chatuwa Mahto, all resident of village-Lohardaga,
P.O-Lodhma, P.S-Karra, District-Khunti, State-Jharkhand ....... Appellants
Versus
The State of Jharkhand ...... Respondent
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PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants : Mr. Jitendra Shankar Singh, Advocate
Mr. Rakesh Kumar, Advocate
Mr. Randhir Kumar, Advocate
For the State : Mr. S. K. Srivastava, A.P.P
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JUDGMENT
Per, Shree Chandrashekhar, J. Dated 25th February, 2020 Oral Order On the basis of fard-beyan of Karmi Devi which was recorded at about 10:00 a.m on 11.10.2007 near the house of Chatuwa Mahto, Karra P.S Case No.61 of 2007 was lodged against Chatuwa Mahto, Pawan Mahto, Subhash Mahto, Nirmala Devi and Rekha Kumari under section 302/34 of the Indian Penal Code for causing death of Subodh Mahto. After the investigation a charge-sheet dated 31.12.2007 was submitted against Chatuwa Mahto and Pawan Mahto and vide a supplementary charge-sheet dated 14.04.2008 Nirmala Devi has also been sent up for trial.
2. During the trial, the prosecution has examined 12 witnesses; the informant is P.W 7.
23. In Sessions Trial No.188 of 2008/317 of 2008, the appellants have been convicted and sentenced to R.I for life and fine of Rs.10,000/-each under section 302/34 of the Indian Penal Code. During pendency of this criminal appeal, I.A No.7937 of 2018 was filed on behalf of Pawan Mahto raising a plea of juvenility. On this application the Juvenile Justice Board was directed to conduct an enquiry which has submitted its report dated 14.12.2018. The Juvenile Justice Board has found that on the date of the occurrence, that is, on 11.10.2007 Pawan Mahto was aged about 16 years 2 months and 5 days and thus a juvenile. On 14.01.2009, the following order has been passed by a co-ordinate Bench of this Court:
I.A. No. 7937 of 2018.
09/14.01.2019 Heard learned counsel for the appellant No.1 Pawan Mahto, and learned counsel for the State.
This appellant, along with other co-appellants have been convicted for the offence under Sections 302 / 34 of the Indian Penal Code, and sentenced to undergo R.I. for life and fine of Rs. 10,000/- each for the said offence.
During the pendency of the appeal, the appellant No. 1 Pawan Mahto, filed the present interlocutory application, claiming to be a juvenile on the date of occurrence, i.e., on 11.10.2007. It is submitted that this plea was not taken earlier before the Trial Court.
By order dated 12.10.2018, passed by this Court in the present I.A., the Juvenile Justice Board, Khunti, was directed to conduct an enquiry as to the claim of juvenility of the appellant No. 1 Pawan Mahto, in accordance with law and to submit its report.
The report has since been submitted by the Juvenile Justice Board, Khunti, which is on the record, and from the order dated 14.12.2018 passed by the Juvenile Justice Board, Khunti, it appears that after due enquiry into the matter, the appellant No. 1 has been found to be aged about 16 years, 2 months and 5 days on the date of occurrence, i.e., on 11.10.2007, his date of birth being 6.8.1991 as per the school records, first attended by him.
The impugned Judgment shows that there is allegation against the appellant to have assaulted the deceased by tangi on his head, and the deceased was assaulted by the other co-accused also, and he died. On the adjudication of the matter, the appellant No. 1 Pawan Mahto has been convicted and sentenced along with other co-appellants as aforesaid. The impugned Judgment further shows that the appellant No. 1 was in custody during trial, and it is submitted that he is remained in custody for more than 11 years.
Now that the appellant No. 1 Pawan Mahto has been held to be a juvenile on the date of occurrence, learned counsel for the appellant No. 1 submits that he does not challenge 3 the Judgment of conviction, passed by the learned Trial Court below, so far as this appellant is concerned. He submits that since the appellant has remained in custody for more than 11 years, he has served the imprisonment for the maximum period, which could be awarded to the appellant under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
Taking into consideration the submission of learned counsel for the appellant No. 1, since the appellant No. 1 Pawan Mahto has remained in custody for much more than 3 years, the maximum punishment, which could be awarded to the present appellant, while maintaining the conviction of the appellant by the impugned Judgment dated 15.5.2012, passed by the learned Addl. Judicial Commissioner-II, Khunti, in S.T. No. 188 of 20018 / S.T. No. 317 of 2008, we hereby, modify the order of sentence dated 16.5.2012 passed by the Trial Court below, so far as the appellant No. 1 Pawan Mahto is concerned, to the maximum period permissible under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
Since the juvenile appellant No. 1 Pawan Mahto has already suffered the imprisonment for more than the maximum period, as prescribed under the law, he is directed to be released and set at liberty forthwith, if his detention is not required in any other case.
The aforesaid interlocutory application, is accordingly, allowed.
The main appeal, is thus, disposed of, so far as the appellant No. 1 Pawan Mahto is concerned, and shall continue as regards the other appellants are concerned.
4. This criminal appeal qua Pawan Mahto was disposed of, in the above terms.
5. The case of the prosecution as narrated by the informant, who is mother-in-law of the deceased, is that in the morning of 11.10.2007 she was with Shila Devi, Guria Kumari and Dilip Mahto near the house of Guluwa Lohar. There was a dispute in respect of 5 decimals of land in connection to which Chatuwa Mahto, Nirmala Devi, Pawan Mahto, Subhash Mahto and Rekha Kumari started a quarrel with her. At that time Chatuwa Mahto was carrying a knife (chura) and Pawan Mahto who is his son was holding a Tangi. In the mean-time, her son-in-law Subodh Mahto came there and tried to pacify them, however, Chatuwa Mahto, Nirmala Devi, Subhash Mahto and Rekha Kumari exhorted to kill Subodh Mahto whereupon Pawan Mahto with an intention to kill him started assaulting Subodh Mahto. On receiving injuries on his neck, back and head Subodh Mahto fell on the ground and became 4 unconscious. On her raising hullah Gandura Mahto and other villagers when came there Pawan Mahto and Chatuwa Mahto carrying Tangi fled away. Subodh Mahto was brought to RIMS, Ranchi, however, he succumbed to his injuries.
6. The prosecution has projected P.W 1, P.W 2, P.W 3, P.W 4 and the informant who has been examined as P.W 7 as the eye-witnesses. These witnesses are closely related to the accused persons as well as the deceased. The informant is the first wife of Chatuwa Mahto. From this wedlock four daughters were born. She has stated that her husband has married Nirmala Devi and when she was carrying third child her husband deserted her. From the wedlock with Nirmala Devi two sons and one daughter have been born. P.W 1 is father of the deceased. He has deposed in the court that at about 7:30 a.m-8:00 a.m on 11.10.2007 he was standing near the house of Guluwa Lohar. The informant and others were also present there. A quarrel was started with them by Chatuwa Mahto, Nirmala Devi and Pawan Mahto and his son was trying to pacify them. He has stated that Chatuwa Mahto and Pawan Mahto have assaulted his son on exhortation of Nirmala Devi. After the assault Chatuwa Mahto and Pawan Mahto tried to flee away and he chased Pawan Mahto and confined him in his house. Thereafter police came there and arrested him. He is a seizure witness also. He has stated that the police has seized blood-stained soil and Tangi. P.W 2 is daughter of the informant and wife of the deceased. She has also stated about a dispute regarding 5 decimals of land, quarrel between her mother and her father who was accompanied by her step-brother and step-mother. From her evidence it appears that she has seen the occurrence which according to her has happened on exhortation of Nirmala Devi. P.W 3 is another daughter of the informant and P.W 4 is elder brother-in-law of the deceased. They have also narrated a similar story of the incident which has happened in the morning of 11.10.2007. In the court the informant has largely 5 reiterated her fard-beyan. She has described the incident in a similar manner as stated by her before the police.
7. Mr. Jitendra Shankar Singh, the learned counsel for the appellants has contended that in her fard-beyan the informant has not assigned any role to Chatuwa Mahto and according to her only Pawan Mahto has assaulted Subodh Mahto, but in the court she has tried to rope in Chatuwa Mahto who is her husband due to obvious reasons and, therefore, this part of her testimony should be excluded from consideration.
8. It has come in the prosecution's evidence that P.W 1, P.W 2, P.W 3 and P.W 4 who are relatives of the informant and the accused persons are the residents of the same village. The elder daughter of the informant was married to Subodh Mahto who was also living in the same village. It has also come on record that their house are adjacent to each other. Their presence in the village on the day of the occurrence is natural and from their testimony it is apparent that they are the eye-witnesses. All these witnesses have come to the court to depose that Pawan Mahto and his father Chatuwa Mahto both have assaulted Subodh Mahto. They have stated that first Pawan Mahto assaulted Subodh Mahto and thereafter Chatuwa Mahto has also assaulted him. The informant has also stated about assault by Pawan Mahto and Chatuwa Mahto. In her fard-beyan she has not stated that her husband has also assaulted her son-in-law, but she has said that her husband was carrying a knife (chura). But, during her cross-examination she was not confronted with her statements recorded in the fard-beyan or under section 161 of the Code of Criminal Procedure on this issue and while so, her statement in the court on complicity of Chatuwa Mahto has remained unchallenged. Through P.W 1, P.W 2, P.W 3, P.W 4 and P.W 7, the prosecution has proved presence of Chatuwa Mahto and Pawan Mahto at the place of occurrence and their participation in the incident.
69. However, on a careful scrutiny of the evidence laid by the prosecution, we find that there is substantial doubt on participation of Nirmala Devi in the occurrence. She has been roped in with the aid of section 34 of the Indian Penal Code for murder of Subodh Mahto. The allegation against Nirmala Devi is that on her exhortation her husband and son have assaulted Subodh Mahto. There was a land dispute between the parties. The informant is the first wife of Chatuwa Mahto. Previously the informant was cultivating a piece of land which was later on objected by her husband. This was the reason for dispute between the parties and it has led to a quarrel in the morning of 11.10.2007. In her fard-beyan, the informant has alleged that Chatuwa Mahto, Subhash Mahto, Nirmala Devi and Rekha Kumari have exhorted to kill her son-in-law who was trying to pacify them. But Subhash Mahto and Rekha Kumari have not been sent up for trial. There is no other evidence against Nirmala Devi on her participation in the occurrence. May be she has come to the place of occurrence with her son, daughter and husband and there was a quarrel between the parties but on application of section 107 of the Indian Penal Code or section 34 of the Indian Penal Code to convict her for murder of Subodh Mahto the prosecution's evidence lacks foundational details. The prosecution has also failed to establish that Nirmala Devi has shared common intention with others to commit murder of Subodh Mahto and that death of Subodh Mahto has been caused in furtherance of common intention of all. In fact, there is no discussion in the judgment under challenge on common intention of the accused persons to murder Subodh Mahto. This has also to be kept in mind that no charge under section 302/109 of the Indian Penal Code was framed against the accused persons, rather a charge under section 302/34 of the Indian Penal Code was framed against the accused persons. In "Girija Shankar vs. State of U.P." reported in (2004) 3 SCC 793, the Hon'ble Supreme Court has observed, thus;
7"9. ......... In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime........"
10. In the final analysis, we are inclined to extend benefit of doubt to Nirmala Devi and, accordingly, she is acquitted of the charge under section 302/34 of the Indian Penal Code.
11. The order of conviction dated 15.05.2012 and the order of sentence dated 16.05.2012 awarded to the appellant, namely, Nirmala Devi under section 302/34 of the Indian Penal Code are set-aside.
12. But, complicity of Chatuwa Mahto in the occurrence has been proved by the prosecution. He was present at the time of the occurrence and he has participated in the incident are beyond any doubt. The prosecution witnesses are consistent on his participation in the occurrence. However, we find that his conviction under section 302/34 of the Indian Penal Code is not proper.
13. There was a land dispute between the informant and Chatuwa Mahto, who is her husband. The prosecution witnesses have admitted that Subodh Mahto who is son-in-law of Chatuwa Mahto had no dispute with him. The father of Subodh Mahto who has been examined as P.W 1 has stated that he was on visiting terms with the accused and there was no dispute between them. He has also stated that a quarrel was going on between Chatuwa Mahto and his wife when his son had intervened. The wife of the deceased has also stated that her husband had no quarrel with any one. P.W 3, another daughter of the informant, has also stated in her cross-examination that her father was on visiting terms with her brother-in-law and they were on very good terms. The informant has also admitted that her son-in-law had been visiting her husband, who is an accused in this case.
814. From the aforesaid evidence it transpires that a quarrel in respect of a piece of land had ensued in the morning of 11.10.2007 which was subsequently aggravated and when Subodh Mahto tried to pacify them he was assaulted by Chatuwa Mahto and his son Pawan Mahto. When the quarrel was started Subodh Mahto was nowhere in the picture. He had no enmity with the accused persons rather he was on good terms with them. The assault on him has happened suddenly and in the heat of the moment Pawan Mahto has assaulted him and it is stated that Chatuwa Mahto has also assaulted him. It has also come on record that Pawan Mahto has assaulted him on back of his neck, but against Chatuwa Mahto no specific assault has been attributed. Dr. Anita Sundi, who has conducted the post-mortem examination, has found the following injuries on Subodh Mahto:
(i) 6 cm. x 1 cm. soft tissues of back of neck lower part,
(ii) 5 cm. x 1 cm. x bone deep over left lateral neck middle part cutting the soft tissue, blood vessels and fifth cervical vertebra including spinal cord,
(iii) 6 cm. x 1 cm. over frontal bone left side cutting the soft tissue and under lying bone.
15. All the three incised wounds have been found on back of neck of Subodh Mahto and these are grievous injuries. The prosecution witnesses have stated that Chatuwa Mahto has also assaulted him with Tangi which Pawan Mahto was carrying. It is not a case set-up by the prosecution that Chatuwa Mahto was also carrying a Tangi rather the informant has stated in her fard-beyan that he was carrying a knife (chura). On such evidence, all that the prosecution has established is that Chatuwa Mahto intended to cause grievous injury to Subodh Mahto and dimension of the injury on the neck of Subodh Mahto would reveal that such injury was likely to cause death and, therefore, Chatuwa Mahto is liable to be convicted under section 326 of the Indian Penal Code. How many injuries have been caused by Chatuwa Mahto has not been spoken by the prosecution witnesses and therefore on the question of sentence, 9 we hold that he is liable to be sentenced to R.I for ten years under section 326 of the Indian Penal Code [refer, "Vijay Singh and another Vs. State of Madhya Pradesh" reported in (2014) 12 SCC 293 and "Rama Meru and another Vs. State of Gujarat" reported in 1993 Supp(1) SCC 315].
16. Accordingly, the judgment of conviction dated 15.05.2012 and the order of sentence of R.I for life and fine of Rs.10,000/- under section 302 r/w section 34 of the Indian Penal Code dated 16.05.2012 awarded to the appellants, namely, Chatuwa Mahto and Nirmala Devi in Sessions Trial No.188 of 2008/317 of 2008 are set-aside.
17. The appellant, namely, Chatuwa Mahto is convicted and sentenced to R.I for ten years under section 326 of the Indian Penal Code.
18. Mr. S.K. Srivastava, the learned A.P.P states that the appellant, namely, Chatuwa Mahto has remained in custody for more than 10 years.
19. Accordingly, the appellant, namely, Chatuwa Mahto, who is in custody, shall be released forthwith if not required in connection to any other criminal case.
20. The appellant, namely, Nirmala Devi, who is on bail, shall stand discharged of liability of the bail-bonds furnished by her.
21. Criminal Appeal (D.B) No.834 of 2012 is partly allowed, in the above terms.
22. Let lower-court records be sent to the court concerned forthwith.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated:25/02/2020 Sudhir A.F.R