Jharkhand High Court
Uttam Mahato vs The State Of Jharkhand on 21 August, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.212 of 2004
(Against the Judgment of conviction dated 5th January, 2004 and the order of
sentence dated dated 6th January, 2004, passed by the learned Additional
District and Sessions Judge-VIII, Dhanbad, in Sessions Trial No.229 of 1989).
Uttam Mahato, S/o Late Somar Mahato, resident of Village-
Ranglitarh, P.S.- Topchanchi, District - Dhanbad. Appellant
Versus
The State of Jharkhand. ..... Respondent
PRESENT
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
.....
For the Appellant : Ms. Madhulika Dasgupta, Advocate
Mrs. Jasvinder Mazumdar, Advocate
For the State : Mr. Shekhar Sinha,
Additional Public Prosecutor
.....
By Court:- Heard Ms. Madhulika Dasgupta assisted by Mrs. Jasvinder Mazumdar, learned counsels for the appellant and Mr. Shekhar Sinha, learned Additional Public Prosecutor appearing for the State.
2. The instant Criminal appeal is directed against the judgment of conviction dated 5th January, 2004 and the order of sentence dated 6 th January, 2004, passed by the learned Additional District and Sessions Judge- VIII, Dhanbad, in Sessions Trial No.229 of 1989, whereby the sole appellant, Uttam Mahato has been convicted for the offence committed and punishable under Section 304 Part II read with Section 34 of the Indian Penal Code and awarded rigorous imprisonment for 5 years and also a fine amount of Rs.1,000/- and in default of payment of fine, to further undergo simple imprisonment for three months.
3. The prosecution case is based upon 'fardbeyan' of the informant, Jhari Mahto (P.W.1) recorded by the Police officer, wherein, the informant has alleged that at around 7.00 p.m. in the night on 04.09.1984, while his uncle, Daso Mahto was returning with his rickshaw to his house and as soon as he reached near the house of Somar Mahto, the informant saw some thorns on his way. Then Daso Mahto asked, who has done this. Thereafter, suddenly Uttam Mahto, having tangi in his hand, assaulted Daso Mahto on his head, causing bleeding injury and the tangi remained inserted in the head of Daso Mahto. Thereafter, Somar Mahto assaulted Daso Mahto by means of lathi on different parts of the body and in the meantime, on brawl, co-villagers, Bhola Mahto, Dharam Mahto, Bachan Mahto etc., came, who have witnessed the occurrence. The informant has claimed that he has also witnessed the occurrence, as he was first to reach the place of occurrence before arrival of co-villagers there. Both the accused persons fled away, leaving tangi there. The informant has claimed that the accused persons, with an
-2- [ Cr. Appeal (SJ) No.212 of 2004 ] intention to kill his uncle, Daso Mahto, assaulted him by means of tangi, which remained in the head of his uncle..
On the basis of the aforesaid 'fardbeyan' of Jhari Mahto, informant, the Police instituted First Information Report bearing Topchanchi P.S. Case No. 132 of 1984 dated 03.09.1984 corresponding to G.R. No.788 of 1984 under Sections 324 /307 /323 of the Indian Penal Code against both the accused persons.
4. After investigation, the Police submitted charge-sheet vide No.109 of 1984 dated 30.11.1984 under Sections 302/34 I.P.C. against both the accused persons, Uttam Mahato and Somar Mahato.
5. The cognizance of the offence has been taken vide order dated 30.01.1985 and the case has been committed to the Court of Sessions vide order dated 08.06.1989. The charge has been framed against both the accused persons, Uttam Mahato and Somar Mahato on 4 th September, 1992, under Sections 302/34 I.P.C., to which the accused persons pleaded their innocence and thus, they were put under trial.
6. During pendency of the trial, co-accused, Somar Mahato died, as such, his case has been dropped vide order dated 21.01.2003.
7. The prosecution has examined altogether nine witnesses and also exhibited three documents and one material exhibit to prove its case beyond all reasonable doubt against the accused /appellant.
Jhari Mahto, informant of the case, has been examined as P.W.1, Bhola Mahto has been examined as P.W.2, and Dharam Prasad Mahato has been examined as P.W.3. All these three prosecution witnesses have been declared hostile by the prosecution though they are named in the First Information Report, as eye-witnesses to the occurrence.
Bachan Mahto, brother of the deceased (Daso Mahto) has been examined as P.W.4. This witness has also claimed himself to be an eye- witness to the occurrence. Mahavir Pramanik has been examined as P.W.5 and this witness has also claimed himself to be an eye-witness, who came after the occurrence. Gangia Mahtain, wife of the deceased has been examined as P.W.6 and she is an eye-witness to the occurrence, as claimed by her. Narain Singh, a Police constable, who has produced the tangi in the Court which has been marked as Material Exhibit-I, has been examined as P.W.7. Dr. Renu Bala, who conducted the post -mortem of the deceased (Daso Mahto) on 09.09.1984, has been examined as P.W.8 and she has proved the post- mortem report prepared in her hand-writing and bears her signature marked as Exhibit-1. Kansari Mandal, a formal witness and Advocate Clerk has been
-3- [ Cr. Appeal (SJ) No.212 of 2004] examined as P.W.9 and he has proved the hand-writing of the Officer-in- Charge, Ramdeo Prasad on First Information Report and 'fardbeyan' and marked as Exhibit-2.
8. After closure of the prosecution evidence, the statement of accused/appellant has been recorded under Section 313 Cr.P.C. on 06.11.2003, to which the accused/appellant has pleaded his innocence and has stated that due to old dispute and enmity between his father and Daso, he has been implicated in this case.
The defence has also examined one witness and adduced documentary evidence to prove his innocence.
The defence witness, Rohan Mahto has been examined as D.W.1 and School Leaving Certificate has been proved and marked as Exhibit-A and Voter Identity Card of Uttam Kumar Mahto issued by the Election Commission of India, has been proved and marked as Exhibit-B .
9. After hearing the learned counsel for the parties and on perusal of the records, the learned trial court has passed the impugned judgment of conviction and order of sentence .
Being aggrieved at, and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant/accused, Uttam Mahto has preferred the present Criminal Appeal before this Hon'ble Court, assailing the impugned judgment of conviction and order of sentence passed by the learned trial Court.
10. Heard Ms. Madhulika Dasgupta, assisted by Mrs. Jasvinder Mazumdar, learned counsels appearing for the appellant.
Learned counsel appearing for the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law.
Learned counsel appearing for the appellant has further submitted that falsity of the case is apparent on record, as the informant, Jhari Mahto (P.W.1) has been declared hostile by the prosecution, as he has not supported the case of the prosecution.
Learned counsel appearing for the appellant has further submitted that from perusal of the records, it appears that only wife of the deceased, Gangia Mahatain (P.W.6) is an eye-witness to the occurrence. Witnesses, Jhari Mahto (P.W.1), Bhola Mahto (P.W.2) and Dharam Prasad (P.W.3), who are named as the eye-witnesses in the First Information Report, have been declared hostile by the prosecution and on perusal of their evidence, it appears that they have not supported the case of the prosecution. Bachan Mahto (P.W.4), who is brother of the deceased (Daso Mahto), has been examined in this case though he has claimed himself to be an eye-witness to the
-4- [ Cr. Appeal (SJ) No.212 of 2004] occurrence, but when his evidence is scrutinized and compared with the evidence of P.W.6 (Gangia Mahatain), it appears that Bachan Mahto (P.W.4) is not the witness, who has seen the occurrence and is not an eye-witness to the occurrence, as this witness has admitted in Para-2 of his examination-in-chief that on brawl, he reached to the place of occurrence and saw that Uttam Mahto assaulted Daso Mahto by means of tangi on his head and Somar Mahto assaulted Daso Mahto by means of lathi in different parts of body causing him unconsciousness. When this witness has objected, the accused persons have also given threatening to him. Further, Daso Mahto had been admitted at Topchanchi Hospital, where the axe, inserted in the head of Daso Mahto has been removed and thereafter, Daso Mahto was referred to Ranchi, where he died after 2 -3 days. This witness has further stated in Para-10 of his cross-examination that at the time of occurrence, there were 10-15 persons at the place of occurrence, but no one has intervened in the matter. When this witness has tried to do the same, he was threatened with dire consequences. This witness has stated that the deceased has sustained injury because of assault made by Somar Mahto by means of lathi on the waist, back and shoulder. When the evidence of this witness (P.W.4) is compared with the evidence of P.W.6 (Gangia Mahatain), wife of the deceased, who has categorically stated that she heard the brawl and came out of the house then she saw her husband fallen on the ground and thereafter the villagers came, meaning thereby, the presence of Bachan Mahto (P.W.4), brother of the deceased along with 10-15 persons has not been supported by the sole eye- witness P.W.6 (Gangia Mahatain), wife of the deceased.
Besides, evidence of Mahabir Pramanik (P.W.5), who has categorically stated in Para-1 of his examination-in-chief that he inquired from the wife of the deceased, P.W.6 (Gangia Mahatain) with respect to the occurrence, meaning thereby, on careful scrutiny of evidence of Bachan Mahto (P.W.4), Mahabir Pramanik (P.W.5) and P.W.6 (Gangia Mahatain), it is clear that Gangia Mahatain (P.W.6), wife of the deceased has reached the place of occurrence first and witnesses, Bachan Mahto (P.W.4), and Mahabir Pramanik (P.W.5) reached after the occurrence, as such, they are not eye-witnesses to the occurrence because by that time, occurrence has been committed.
Learned counsel appearing for the appellant has further submitted that the contents of the First Information Report have not been proved in this case, as the prosecution has only proved the post- mortem report and the same has been marked as Exhibit-1 and the hand-writing and signature of the Officer-in-Charge on the 'fardbeyan', who recorded the same has been proved and marked as Exhibit-2. Apart from the seized tangi produced in the Court, which has been proved and marked as Material Exhibit-1, the contents of the First Information Report has not been proved by the prosecution in this case, where the informant of the case (P.W.1) has been declared hostile by the prosecution.
-5- [ Cr. Appeal (SJ) No.212 of 2004] Learned counsel appearing for the appellant has further submitted that the place of occurrence has not been proved. If the evidence of P.W.2 (Bhola Mahto) in Para-3, Bachan Mahto (P.W.4) in Para-12 and Mahabir Pramanik (P.W.5) in para-5 are compared with each other, then place of occurrence is not established in the case. The non-examination of the Investigating officer has caused serious prejudice to the appellant, as in this case the First Information Report has not been proved, the informant has been declared hostile and the place of occurrence has not been established, as such, non-examination of the Investigating officer has caused serious prejudice to the appellant, as the appellant could not cross-examine him to elucidate the fact with regard to innocence and false implication at the hands of persons with whom they have animosity.
Learned counsel appearing for the appellant, Ms. Madhulika Dasgupta has further submitted that, from perusal of evidence of Bachan Mahto (P.W.4), in para-15 of his cross-examination, the present First Information Report is hit under Section 162 Cr.P.C., as the initial information which was given to the Police by one Arjun Mahto, who has also not been examined in this case with respect to the cognizable offence, has not been produced in the Court, as such, the First Information Report is hit under Section 162 Cr.P.C. This fact has also been corroborated by Mahavir Pramanik (P.W.5) in Para- 6 of his cross-examination, who has stated that on the information given by Arjun Mahto, Dharam Mahto, Mahgi Hazam, Ranjit Pramanik, the Police came to the Village.
Learned counsel appearing for the appellant has further submitted that in view of evidence of Bachan Mahto (P.W.4) and Mahavir Pramanik (P.W.5), the present First Information Report is hit under Section 162 Cr.P.C.
Learned counsel appearing for the appellant has further submitted that the Doctor, who has examined the victim (Daso Mahto) at Topchanchi Hospital, has not been examined in this case nor initial injury report of Daso Mahto has been brought on record and, as such, only on the basis of the oral testimony of the witnesses that axe was inserted in the head of Daso Mahto, which was subsequently removed by Doctor at Topchanchi Hospital, the appellant cannot be convicted without having any legal and cogent material against him.
Learned counsel appearing for the appellant has further submitted that, Dr. Renu Bala (P.W.8) has only mentioned about one injury on the right parietal region of the deceased in her post- mortem report . If the post- mortem report (Exhibit-1) is compared with the evidence of prosecution witnesses, such as , Bachan Mahto (P.W.4) and Mahavir Pramanik (P.W.5), then vital contradiction with regard to the oral testimony and medical report is found. As per the evidence of, Bachan Mahto (P.W.4) and Mahavir Pramanik (P.W.5), Somar Mahto has assaulted Daso Mahto by means of lathi on his waist, back and shoulder, but no such injury was found by the Doctor (P.W.8), who has
-6- [ Cr. Appeal (SJ) No.212 of 2004] conducted the post- mortem of the deceased nor any medical paper has been produced to corroborate such evidence.
Learned counsel appearing for the appellant has further submitted that under the aforesaid background, where the place of occurrence has not been proved nor the contents of the First Information Report has been proved and there is vital contradiction with regard to the place of occurrence coupled with the fact, that non-examination of the Investigating Officer has caused serious prejudice to the appellant , as the appellant could not get an opportunity to cross-examine him to elucidate the fact to prove his innocence.
Learned counsel appearing for the appellant has further submitted that the present First Information Report is hit under Section 162 Cr.P.C., as the initial version disclosed to the Police by Arjun Mahto has not been brought on record nor the initial Medical Report issued at Topchanchi Hospital has been brought on record.
Learned counsel for the appellant, Ms. Madhulika Dasgupta has placed reliance on the judgments, as reported in 2008 (17) SCC 273, in the case of Chetu and Anr. Vs. State of Madhya Pradesh and in view of the judgment, as reported in (2013) 6 SCC 417, in the case of Lahu Kamlakar Patil and Anr. Vs. State of Maharashtra, the appellant deserves to be acquitted of the charge and conviction under Section 304 Part II read with Section 34 I.P.C., as such, the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law.
11. Heard Mr. Shekhar Sinha, learned Additional Public Prosecutor appearing for the State.
Learned Additional Public Prosecutor appearing for the State has submitted that the impugned judgment of conviction and order of sentence is based upon material available on record, as such, the learned trial has rightly passed the impugned judgment of conviction and order of sentence against the appellant. The appellant is the person, who has assaulted Daso Mahto (deceased) by means of axe (tangi) on his head which was inserted in his head causing injury and the said tangi was removed by the Doctor and seized by the Police, which has been proved and marked as Material Exhibit-1.
Learned counsel appearing for the State has further submitted that the deceased was referred to Ranchi, where in course of treatment, he died after 3 days, as such, the injury sustained by the deceased, resulted into his death, as such, learned trial court has rightly convicted the appellant under Section 304 Part II read with Section 34 I.P.C.
Learned counsel appearing for the State has further submitted that the writing and signature of the Officer-in-Charge on 'fardbeyan' and First Information Report has been proved and marked as Exhibit-2 and that will suffice the purpose as the entire First Information Report has been exhibited in this case and as such, the statement made by
-7- [ Cr. Appeal (SJ) No.212 of 2004] the learned counsel for the appellant with respect to the proof of First Information Report is not sustainable in the eyes of law.
On the aforesaid premises, learned counsel appearing for the State has submitted that the the impugned judgment of conviction and order of sentence is based on the evidence brought on record and this Court may not interfere with the the impugned judgment of conviction and order of sentence, at this stage.
12. After hearing learned counsels for the appellant, Ms. Madhulika Das Gupta, assisted by Mrs. J. Mazumdar and Mr. Shekhar Sinha, learned Additional Public Prosecutor appearing for the State and from perusal of the entire records, such as, the First Information Report, framing of charge, evidence of nine prosecution witnesses, two exhibits, one material exhibit, the statement of the appellant recorded under Section 313 Cr.P.C. and defence witness, being D.W.1 and two of the exhibits with respect to the age of the appellant. This Court is of the opinion, that defence exhibits are of no help to the appellant. As per the Exhibits- A and B, the date of birth of the appellant is itself contradictory and as such, this Court as well as learned trial Court has rightly rejected the defence evidence of D.W.1, who has been examined as defence witness whose evidence is of no use for the appellant, to disbelieve the prosecution case and as such, this Court is only relying upon the prosecution evidence which had been laid by the prosecution and the exhibits.
From perusal and scrutiny of the prosecution evidence of Jhari Mahto (P.W.1- Informant), including two eye-witnesses who are named in the First Information Report, namely, Bhola Mahto and Dharam Mahto, who have been examined as P.Ws.2 and 3, they have not supported the prosecution case. Learned counsel for the appellant has rightly submitted that the informant of the case has not supported the prosecution case, and as such, serious prejudice has been caused because of non-examination of the Investigating officer. Bachan Mahto (P.W.4) is the brother of deceased (Daso Mahto). This witness (P.W.4) has claimed to be an eye-witness to the occurrence, but when his evidence is compared and scrutinize with the evidence of P.W.6 (Gangia Mahatain), it appears that he is an interested witness, who reached the place of occurrence after occurrence was committed, as such, he cannot be considered as an eye-witness to the occurrence. Mahavir Pramanik (P.W.5) has himself admitted, that he reached the place of occurrence and inquired from wife of the deceased, as such, he is not an eye-witness to the occurrence. Gangia Mahatain (P.W.6) is an eye-witness to the occurrence, but her evidence is contradictory, as she has said that in the night, they did not went to the Police Station, but from perusal of the First Information Report, it appears that in the night of the date of occurrence, fardbeyan was recorded and as such,
-8- [ Cr. Appeal (SJ) No.212 of 2004] her evidence is of no credential to be relied upon for convicting the appellant under Section 304 Part II read with Section 34 I.P.C.
Further, Narain Singh (P.W.7), who is a Police Constable and has produced the seized tangi in the Court which has been proved and marked as Material Exhibit-1. The said tangi which has caused the injury upon the deceased, has not been proved by the prosecution by examining blood stain of the tangi. As per the prosecution case, tangi has been recovered from the head of the deceased by the Doctor, meaning thereby, after recovery of blood stained tangi, no such expert opinion was brought on record by the prosecution, as such, material Exhibit-1 is of no help to prove the prosecution case beyond all reasonable doubt against the appellant coupled with the fact that initial injury report of treatment at Topchanchi Hospital has not been brought on record.
Dr. Renu Bala (P.W.8) is the Medical Officer, who conducted the autopsy of the deceased, has only found one injury. If the evidence of Jhari Mahto (P.W.1), Bhola Mahto (P.W.2), Dharam Mahto (P.W.3) and Bachan Mahto (P.W.4) are compared with the contents of the post -mortem report marked as Exhibit-1, it appears that there is vital contradiction, as the consistent case of the prosecution is that Somar Mahto assaulted Daso Mahto by means of lathi on the waist, back and shoulder, but no such injuries were found by the Doctor, who conducted autopsy of the deceased. Kansari Mandal, Advocate Clerk (P.W.9) has proved the signature and hand-writing of the Officer-in-Charge on the fardbeyan and First Information Report which has been marked as Exhibit-2.
The place of occurrence has not been established by the prosecution, as Bhola Mahto (P.W.2) in Para-3, Bachan Mahto (P.W.4) in Para-12 and Mahavir Pramanik (P.W.5), in Para-5 have given description of the place of occurrence and from the perusal of the same, it appears that the prosecution has not been able to prove as to whether, the assault took place in front of the house of Uttam Mahto or assault took place in front of the house of Daso Mahto, as these houses are not contiguous to each other. These three witnesses have categorically stated that house of Daso Mahto and house of Uttam Mahto is at a distance of 100 feet, whereas, Gangia Mahtain (P.W.6) has categorically stated that occurrence took place in front of her house, as such, considering inconsistent evidence which is contradictory in nature, this Court is of the view that the place of occurrence has not been proved by the prosecution.
Furthermore, this Court has also found that initial information was given by Arjun Mahto to the Police with respect to commission of a cognizable
-9- [ Cr. Appeal (SJ) No.212 of 2004] offence and on the basis of the same, the Police came to the place of occurrence. This has been admitted by almost all the prosecution witnesses, but the said statement of Arjun Mahto, disclosing a cognizable offence before the Police, has not been brought on record, as such, the present First Information Report is hit under Section 162 Cr.P.C. and cannot be relied upon Further, the initial medical treatment given by the Doctor at Topchanchi Hospital has not been brought on record nor the Doctor has been examined in this case, who has removed the axe from the head of Daso Mahto as per the prosecution case, as such, there is lacunae in the prosecution case. The prosecution has to prove the case beyond all reasonable doubt, as onus is upon the prosecution.
This Court has further found that non-examination of the Investigating Officer, under the aforesaid background, has caused serious prejudice to the appellant, as the appellant could not cross-examined the Investigating officer with respect to such vital lacunae and contradiction in the prosecution case. The statement recorded under Section 313 Cr.P.C., is sufficient to prove that the appellant has falsely been implicated in this case, as his father had a litigation with the deceased (Daso Mahto).
Under the aforesaid background, this Court is of the opinion that the appellant cannot be convicted, under such material brought on record, under Section 304 Part II read with Section 34 I.P.C.
In the result, the appellant is acquitted of the charge and conviction under Section 304 Part II I.P.C. by giving benefit of doubt in favour of the appellant.
13. Accordingly, the judgment of conviction dated 5 th January, 2004 and the order of sentence dated dated 6th January, 2004, passed by the learned Additional District and Sessions Judge-VIII, Dhanbad, in Sessions Trial No.229 of 1989, being non-sustainable in the eyes of law, is hereby set aside.
14. Thus, the instant Criminal appeal stands allowed.
15. The appellant, who is on bail, as such, is discharged from the liability of his bail bonds.
16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi.
Dated 21st August, 2018.
sandeep/