Jharkhand High Court
Urnesh Kumar Mahto vs Unknown on 9 March, 2021
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction}
Criminal Appeal (D.B) No. 762 of 2013
with
Criminal Appeal (D.B) No.763 of 2013
the judgment of conviction and the order of sentences, beth
2.08, 2013 ms assed by the learned Sessions Judges, Dhanbad in
Sessions Trial Na. 273 ef SO} i}
in Criminal Appeal (D.B} No.762 of 2013:
Urnesh Kumar Mahto, son of Somar Mahto, resident of
vilage-Bhagabandh Basti, PO & PS-Putki, District-Dhanbad
-. Appellant
in Criminal Appeal (p. B} No.763.of 2013:
Puspa Devi, ee Umesh Kurnar
vilage- 'Bhagab andh: fasti. | PO & PS-Put
Mahto, resident of
Print -Dyharnbe
paws Appellant
The Stat 'eof Jharkhand es eee in tit ey
oo in bath cas
(Heard through ¥.C on 08" March, 2021)
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
-HON'BLE MR. JUSTICE RATNAKER BHENGRA
x
For the Ap pellant(s) ovo. Arwind- Kar Si nigh, Advocate
For the State -- > Mr. Shola Nath Ojha, APP
Oral. Judgment
OG% March, 2021
er, Shree C} sandrashekhear,
On 2S" December, 2010 at about 03:00 PM the
fardbeyan of Mohan Mahto was recorded near river Kari by 8.K.
Suman, Officer incharge of Bhagabandh Outpost within Putki
PS. An infermiation along with the fardbeyan of Mohan Mahte
s
Was Serf fo Putki PS at O8:00 PM and on that basis Purtki
(Shagabandh) PS Case No. 115 of 2010 was lodged against
Urnesh Kumar Mahto and Puspa Devi for committing murder of
their sor Ajay Kumar Mahto ~ Puspa Devi is the step rnother
bh
Ce dap LOBE oe
In Ris fardbeyan, Mohan Mahto has stated that at about
O1:00 PM Babha Mahto inforrned him that Aiay Kumar Mahto
was murdered and his deac hody was concealed at cremation
ground near river Kari - Ajay Kumar Mahto was son af his
daughter. Upon receiving this information he had gone to the
house of his son-in-law who was not there at that tume and his
grand children told him that on 26.12.2010 Ajay Kumar Mehto
was strangulated by their father and step mother with a cloth.
The informant has further stated that Umesh Kumar Mahto
threatened his younger son mot to disclose the incident to
vi
anyore and or 2, ods 2€010, early morning at 0200 AM, buried
the dead body ¢ sor in the crematic wid: The informant
has seen that head ard feet of the dead body. MS. grandson
were out of the ground and expr essed his apprehen ier that hi
sorvin-law and Puspa_ Devi had killed Ajay Kumar Mahto
because Umesh Kumar Mahto was suspecting illicit relationship
of his som with Puspa Devi, his fourth wife. In COUrSE oF
investigation statement of Vijay Kumar Mahto, younger son of
Umesh Kumar Mahto, was recorded but ne information is
available on record about Nandini Kumari the sister of the
deceased who was aged about 9 years, fat the time of the
ocourrence. The statement of Pr Vijay Kumar Mahto was recorded
also under section 164 of the "Code of Criminal Procedure
{hereinafter referred to as CrPC}, PW2 and FPWé4 are distantly
related to PWS, the informant. PW6 was Officer Incharee of
bandh OP, PWS is the Circle Officer whoa has conducted
the inquest proceedings and PWS is the Judicial Magistrate who
has recorded statement of Vuay Kumar Mahto under
section 164 CrPCoon PS.O1L 2011.
e, Dr Shatlendra Kumar who has conducted the
postmortem examination on 29.12.2010 at PMCH, Dhanbad
around 12:30 PM found one ligature mark on front of the neck
1% inch wide, below the vocal cord. The Heature mark which
surrounded the neck cornpletely and horizontally had become
hard, dark brown leathery and like parchment. On dissection
Sawa
ecchymosis was seen underne: ath the Hgature mark all aver
trent of the neck on both sides. In the opinion of the doctor
death was caused due to asphyxia resulting frorn strangulation
and time elapsed since death was 48 hours lfA}{-}12 hours}, On
eempletion of the Wivestigation a char gesheet was fled a against
the accused and both have faced the trial on the charge under
sections 302/201 /34 of the] Inclian Penal Code.
3, The learned Sessions Judge, Dhan bad has held that
in his statement under section 164 CrPC which was recorded
within one month of the occurrence Vijay Kumar Mahto has
given a similar fhe Yratior of P the: oveur ren c€ as he deposed in the
Court and the 'refore chance of h cared evidence or
he ground that he had ren uence of his
mate acpial cr graridfa sther was = 20
&
Sabable,. His evidence that his
parents strangulated to death was corroborated
co
by the meclical evidence. and therefore on the ground af
Noneproduction of the. seized €fticles such ae
bedsheet and hoe ( a the prosecution Story 'cannot be
disbelieved. The learned tie tial Judge has ve ntured to consider
character of the witnesses. and conduct of. the accused who
according - ta the 'Prosecution did. Rot in
f orm the "police abet
missing of his. son. in paragraph no. 23. oF the judement in
. Aaah Re
Sessions Trial No. "2? 3 of 2011, the learned Sessions Judee has
held that the accused intended to kill Ajay Kumar Mahto and
"Heir criminal act was Het covered by any EXCEPLON in section
300 of the Indian Pen: al Code. The learned sessions Judge has
held as under:
"28, in this Case, Prosecution evidence is thar murder of
Ajva Mahto was tonunited by Both the ACCUSEd persons
inside their }
POUSE, Section 34 IPC ens saged when a
creminal aet is done BY several persons ih furtherance of
the common. intention of all euch ef such Persons is Hable
for that act in the same PRGNKEePr Gs it were done by him
cone, Wricherlitrg prmeiple 2 of section af is thet f tea or
'ad
Me BErsons intentionally do an act jomtly, the position in
S just the same as Uf each of them has cone it
ined ally by himself or Herself. fis not hecessary
several PEFSONS Charged unth
;
1ee Jointly rust be the same cr ie dentic :
may be different ty character but must have been
ninton Duertion in order fo
which has been erinictecd
Me
mr the princtole of jomt ability i ut the « doing of a crumineal
evidence and does nal create
actuated by one and the same c
2
attract the provision of section Ss
2 :
oe
a substantive offence, fetention is always gathered from
the surrounding circumstances, Te s strangulate nee a 'of a
gnerson is suggestive that accused had intention fo kill the
deceased. TE om eis prosecution evidence that reck k of Ajay
Mahio was strar guiated and this ecular y version alse find
support from medical evidence, Therefore, act of both ihe
fd persons come Ltn armpit of m murder and does
aFLLy EXCePUort of section GO PC.
o
ose
eo
&
oy
case, there is consistency in n eular y version and
l evidence. Previous and subsequent conduct af both
accused persons is deplorable. Ree covery of bed sheet
used for stra ngulation, Rudal used for diggiig the
ing the dead body, was
' persons, Though
Rot admssibie
heen
wei of > cider sion, a8 court comes to coriclusion
'SECON AON hee succeeded to explain delay in FIR,
and sub se qu went CONC duct of the accused person
*
ss from their house has als 1 preved. 7 "Therefore. prosecution proved its case against, the accused. Persons by adducing reel 'able, cogent, clnichinig and coarisistey in the light of LECISTIMN 2 of the Hon' e e Apex ¢ @ prt b "hoth the accused persons are not entitled for benefit i the accu sed persons guilty of " death ¢ ot AQAY 12.10 naling hus dead the bunk of Ke are wr - within "Se oe ae fm, oe
--
a g 3 of 2 penis & Sy 5 ena.
.
sep ont Toy:
* as 8 "ES 4 f v, s t z hold beth hy According to the prosecution, Viay Kumar Mahto saw > the appellants committing murder of his brother. There seems two eyewitnesses in the case but Nandini Bunari, younger daughter of the victim, was not produced during the trial. She WAS aged about 9 years at the time of the occurrence and seeping in mind that age of a witness may be relevant bat not a ground to discard her testimony, non-examination of Nandini Kumari may affect the prosecution case. However, if the prosecution produces cogent and consistent evidence and Vijay ~ ° suumar Mahto is found a reliable and trustworthy witness merely on the ground that Nandini Kurnarl was not examined during the trial the prosecution story about the appellants commit ting lta murder of their son cannot be disbelies effect of no case can be examined after scrutirizing other x the trial, weet abs oo pe oA ¢ woo ~ anes evidences
5. In "Sawa! Das uv State of Bihar" (1974) 4 SCC 193 the Hon'ble Supreme Court has observed as under:
bby an reghs Saye sep Eb eee pea pee he Pigh Court had correctly of cree evidence of Rive el, » PW i, Ne and B share, PW 2, Radhey ; Vv 16, and Basdeo aed or watched from rom varying | as MAPLCRS, oft nak was going on in the :
2 UuLGe ne murder was rt ee x.
- plac Ce ud, Sey ee the fe mead servant, Geeta.
tehTR? CASE, ee AS also ine Re prosect triad CREPE i cS "oy £ svidden oe Act | LEW Re 1ery "well | have Shown. Pig leg aug part in bri af (Om t Dent There is 8 SOME § evide PEL LU vho i ints ie "whied A moh, ray tom the cf "Cut stances of + the case, Geeta Servant was @ iness essential to the o There is no prohibition in law in convictin g the gO accused on the basis of testimony of a solilary eyewitness provided Ius evidence inspires confidence of the Court -- as a yemeral rule the Court may act on the testimony of a single eyewitness, Section 194 of the Evidence Act provides that no particular number of witnesses is required in army case for the a vd proof of a fact.
import of section 134 of the Evidence Act is the Court may act on the testimony of a Single witriess provided he is wholly reliable, 6 Ca dane (28) Ne Seber eis ms > P Strictly speaking, at the time of the occurrence Vijay Kurnar Mahto was a child. From his testimony we gather that before his evidence was recorded in the Court the learned trial Judge did not assess his maturity. The reason seems to be that at that time he was aged about 1S years. &. The prosecution case is that around 03:00 PM on 26.12.2016 the appellants strangulated Ajay Kurnar Mahto to death in their house and the dead body was concealed there for about L2 hours. Early morning, on 37.12.2010, Umesh Kumar Mahto forced His younger som to help Him causing risappearance of the dead body and on 28.12.2010 sorneone has seen a part of the dead b ady of Alay Kerr AY. Mahto visible in the cremation ground near river Kari. Who has free aden dead body of Ajay Kumar Mahto is not know n and who is the wornan whn y of Ajay Kumar Mahta™ informed PW4 about murder | t revealed by him. The dete nee CASS is that Atay Kummer Mahta Was missing since 26.12.2010 and - p ie 4e home stealing Rs. "500/+, aw > The prosecution has tr Jed to demonstrate that to misicad the villagers Umesh Kumar Mahto had spread a false information that his elder son had fled away, but no se ager has come forward. to suppor rt the prosecution on th s point. Q, The testimony of PWi has" "been challenged by the deferice on the ground of his unnatural conduct. He is younger brother of the victirn who remained at horne and for three days did not disclose the incident to ary other person. His maternal andfather was Hving riearby, his maternal uncle had a shop fust about 50 feet away arvl there was a temple whic th WAS thronged by local people playing cards there. Conduct of a witness per se is not a ground to discard his testimony but we are requirerl to examine whether there is any satisfactory hg explanation for his urnisual conduct. PWI has deposed in the Court that his father had threateried him and we would assume hat he was afraid, but then, if that is so how he could 5 gather eourage to inform his maternal grandfather about the occurrence is difficult to see, "ad LO. In "Merutt Rama Naik uw. State af Maharashtra » 2003) $0 SCC 870 4 witness, who was a close relative of deceased Krishna Mahada Naik, was going te the bus-stand to board a bus to reach his factery where he was working. On the way he saw the assault on the Krishna Mahada Naik by the assailants melding the appellants. But having noticed the incident, he dic net go to any one of his relatives ar the police to inform about the attack In question. He went to the factory, worked there fora while and thereafter gone home. The Hor ble Supreme Cerurt has observed that the Court w ould be hesitant to place any relkance on his evidence. | Eh. oF rom: Cross: examina tion. of = utes Op patent ¢ hat the PW on the groune 4 that h r influence of his qnate nal eran father, and the wit ations against Umesh Kumar Mahto which were not supported by other cutig n 'independer evidence, Ina. sessions trial, where the pro witnesses have tender "ed unsubstantiated allegations and the defence has challenged their testimony or the ground of animosity, the learned Judge in-charge of the séssions trial must remain alert at al umes. 7 |
12. She - Aden ce of PW1 is' not 'free from doubt. His statements in the cross-examiriation nrovide a solid background for the defence that there was probability of a tutored evidence tendered by hirn, His admission in the cross-examination that he would ask his father not to marry again gives a hint about his dislike for his father. He had lost his mother and according to his maternal grandfather she was burnt to de cath } by his father. Naturally he would not have such affection for his father as 4 loving son may demonstrate. There is evidence om record which indicates that the probability of his living with his maternal grandfather cannot be ruled out. These circumstances mnidicals &. reason for him to give a tutored false evidence against iis father. it is also eurprising that he has not stated anything about the iffairs of house, if he was staying with his father. And, he has He "
y not made any allegation of harassrnent, torbure or beating at the hands of fis step mother. His statements in the cross- smamination which have rio fourclation ar corroboration by other riats create further dewbt on his testimony.
3. The fardbeyan of PW2 was baseci on the information given to him by FW and PW4. However, in the fardbeyan and wher he deposed in the Court, PWS has not stated about beating of his grand children at the hands of his son-in-law whereas PWi has made specific allegations against his father that he used to beat his brother. In the First information Report here ig an allegation that the appella Wis strangulatedl Ajay ¥.
Rauimar MM: ahte with eloth but there is sno referer <a of a bedshert erm for strangulation. Apparently, wh used by th we : Ak & POPS or & cloth which would have ft in the stery given by the informant VIREO was not found in the house of ' ° " Jot ~ Beg gee BY GC CUSEC SLory SPHEET ant a 4 :
for strangulation was floated. The dimension of the bedsheet has been given by PWi in his evidence and by any ae + held that a bedsheet of the stretch of uragination it cannot be size S feet x 3 feet would cause strangulation mark of 1M inches. lho. PWS, Dr. Shalendra Kumar r though has stated in huis evidence that lg: x ay Kumar Mahto can be caused °y a beds sheet but Ais of iniéir he ibe im the realm of confurictures because the bedsheet allegedly used im the crime x was not shown ta him. The evidence of a medical man is his opinion and it is mot conclusive or atleast carinct be the sole for conviction. + x, SR Pa Fe OX gee ho Rp be bees elt ; Ryryssey? ey f fF OOH iS in "Aindan Gopal Kakkad v. Naval Dubey" {1992} pooh the Hon''ble Supreme Court has held as under: i ¥ he. Poi tt all auiterials oy ye Ry ey oy ey tte! ; on the technical asp ; SNS et one Oo ny gaat saience se that the Court QE Jud gment on Tose :
tes the exnertUs EArior. EYOU OTL is MOCED IE d, Hors rnot fae 9 me RUUON C ofthe Cart."
16, There may appear doubt on involvement of Umesh Kumar Mahto in murder of his son, but once evirlence of PW Lis exchided what remains on record is dewht only. The basis of suspicion: was delay on his part to inform the police aberut missing of his son, but when there is clear doubt whether Ajay Kumar Mahto was living with his father no adverse inference on the conduct of Umesh Kumar Mahto can be drawn. On the other mand, he has taken @ position that on 28.12.0010 he had e Sone te the police station ta lodge a report of missing of his son and he Was & rrested there.
under the ini uence e 0 fr his broth er-inele @hto was arrested According to the prosecution Umesh Kamar M rom his house and he snih red @ disclosure ent in the same evening but there is. no conclusive eviderice on this point, rather in the cross- -examinatior apeciiic question WAS pur to the witness about arrest of Umesh K LUTLaYr Mahte potice station. We further find that the disclosure statement of Urnesh Rumer Mahto is not in tune with the prosecution. story masmuch as no witness has spoken about iulicit re Hatioriship of Ajay Suumar Maht co who was aged about TG: years eo cowith His Wr. Se ate SR EG A Ler POUATYET Mahto to change z nominee ai nis service recor d would also not be a reason to kill him, for on his death name of Puspa Devi would mot automatically be recorded as nominee of Umesh EKurnar Mahto. It seems that the prosecution has not disclosed true facts and there is no witness who has seen mur der of Sumar Mahto. Any recovery was made at the instance of the accused has not been proved, still, the learned trial Judge has maced rellance on the recovery evidence. We further find that the learned trial Judge has committed serious error in law in holding that Puspa Devi was liable for murder on the principle of joint criminal Habflity. The learned trial Judge has recorded laxity on the part of the investigating officer and we also find that there are missing materials, which could have been Appianl 38) Xe ae ith sy x peilants w set the ap LER ~ :
a Hor, To co 4 choad we folleo tec a LF das une sy} 2 ad 3a8 he sure F Ci RRC PEO NUE Ort SE LES S&S Bese Of PPG).
x ie A <> yD ed i fo fake ge i PREPS sat POG GPLSUPE, Pha US a am CLES c.
Ped POPLO RL r 3 2 FUL nto & x mar M y ¢ x wo ws the by = Ne ojiects pro} ahito Live:
'THO He, yt :
a was mot proved, M s Ajay Kuni ep Ot ce:
aay YrRar : f ws i.
x 8 fe 1S g YC x Nh + at * TL OVER ytio gary yt LPR x OS et x Sot The AYVES.
£3 Sv he appell Orvict e a re ft ace relar to ple a y ok NY s imprope is .
find that there £ ax Ww PEeAsSoms, phicity of OOET ¥ ad oO + x v doubt oe sau} Shei ties x SUD 3 3 4 ATES 2 x 30% a section Y :
& reir conviction U th re 3 ?
> {34 IPC "$ 2OT TRC OF.
> sect x :
+ e orde x 2 rs & ANIC w scording re Ag Snead > ley 3 xbite z x ar M ii} bout .
ee ont et A eas Ur mely, t of 2 x Xi ATItS, af] meee Appe Pa x > of the f serterice Q qd fee aye and infe wi for i ty?
iy * Sy '% SCUTLY roa >.
-
SE ar ted a AP} \ t MS mks edb cc 2k.
3 oy page iI Cr daeetd (DEI Ne. 262 af 2013 Cr dament Penal Code and RJ fer two years and a fine of Rs 1Q00/- each ander section @O1 of the Indian Penal Code, both dated 02.08.2013, passed by the learned Sessions Judge, Dhanbed in Sessions Trial No. 273 of 2011 for causing death of Ajay Kurnar Mahto and disappearance of his dead body, are set-aside,
2. Mr. Bhola Nath Ojha, the learned APP states that the appellants above-named, who have served the sentence for more than iS years and 4 months, with remission, are in custody.
see Accordingly, the appellant, namely, Umesh Kumar Mahto a Cy ruminal, Appeal (D.B} . No, FO of 2O1S]) and the neal (D.B) No.7 S&S forthwith, if rot ' Be sary elic TY na ap DEMETE Dt ame f y, Puspa Devi fin » Crint :
af SO13) "be are in custacky shall he setelt wanted in connection to any other criminal case. wk. in the result, Criminal Appeal (D.B) No, 762 3 of 2013 and Criminal Appeal (D.E} No "763 of 2013 are allowec we, Let the lower Court. records be sent to the'C sonar ecmeerned forthwith. oo, Let a copy of the judgment be transm ited to the Court concerne d and the cancerned Jail Supert fenident through 'Fax', foes. - Sd . (Shree Chandrashekhar, J) Sd/-
(Ratnaker Bhengra, JO