Jharkhand High Court
Jhandu Mahto & Ors. vs State Of Jharkhand on 13 May, 2009
Author: Pradeep Kumar
Bench: Pradeep Kumar
Criminal Appeal (S.J.) No.41 of 2002
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Against the judgment of conviction dated 10.1.2002 and order of sentence dated
15.1.2002 passed by Shri Ramnath Ram Mahto, 1st Additional Sessions Judge,
Giridih in Sessions Trial No.25 of 1979.
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1.Jhandu Mahto
2.Raghunath Mahto
3.Parmeshwar Modi
4.Meghlal Singh
5.Baso Pandey
6.Janardhan Pandey
7.Tejo Rai
8.Hari Mahto
9.Fagu Dhobi -------Appellants
-Versus-
The State of Jharkhand ------- Respondent.
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For the Appellants : Mr. A.K.Kashyap, Advocate
Mr. Vikash Kishore Prasad, Advocate
Mr. KamDeo Panday, Advocate
For the Respondent : Mr. Vinod Singh, A.P.P.
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PRESENT
THE HON'BLE MR JUSTICE PRADEEP KUMAR
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C.A.V on 16.4.2009 Pronounced on 13th May 2009
By Court: This appeal is directed against the judgment of conviction
dated 10.1.2002 and order of sentence dated 15.1.2002 passed by Shri Ramnath Ram Mahto, 1st Additional Sessions Judge, Giridih in Sessions Trial No.25 of 1979 arising out of 1/71-72 whereby and where under all the appellants have been convicted and sentenced u/s 147 I.P.C. to undergo R.I. for 2 years, u/s 395/148 of the I.P.C to undergo R.I. for 7 years and u/s 307/149 of the I.P.C. for 7 years. Further the appellant no. 7, Tejo Rai, who is stated to have died during the pendency of the appeal, was separately convicted and sentenced u/s 397 of the I.P.C. to undergo R.I. for 7 years. All the sentences were directed to run concurrently.
2. The prosecution case was started on the basis of the F.I.R. lodged by Mathura Rai, brother of the victim, Muni Rai, stating 2 therein that Muni Rai had lands at village Baliari, P.S. Birni, Dist. Giridih under khata no.1which are his ancestral lands, while lands of khata no. 3 and 9 were acquired by purchase from Most. Khagia, w/o Budhan Mahto. He has stated that in khata no.3 he has acquired 7.90 2/3 lands and Tikait Khagendranath Singh has also acquired 7.902/3 lands in the name of Raja Mani Singh. Mani Rai had instituted case no.1/71-72 under the Land Ceiling Act being the land holder. He has stated that the lands falling in the hands of Muni Rai and the share falling in the hands of Sanichar Mahto, jointly cultivated and used to divide the products. He has also stated that paddy grown on the field had become ripe for harvest, hence on 3.11.1971, Muni Rai had gone to the field with gun for the purpose of engaging some labourers for harvesting the paddy. In the village he contactedBandhua Dhobi, Qadir Mian, Dilo Mahto, who were near the field and they agreed to engage labourer for harvesting the paddy. There after when he was crossing the river and going towards Gordih village, then in the meantime, he saw about 250-300 persons having Talwar, Barcha, lathi, rod and farsa came towards him. They wanted to surround him and Tikait Khagendranath Singh and Somar Baitha ordered to kill him and looted the gun from him. After surrounding him they started pelting stone upon him. Then he went behind a palash tree and in order to save himself, he made two air fires. He started loading cartridge in his gun, but in the meanwhile, Tikait Khagendranath Singh came from behind and assaulted on his head with farsa causing head injury. There after Tejo Rai(since deceased) assaulted on his right arm with Barcha causing injury while Raghunath Mahto(Gope) assaulted on his hands with farsa. Sanjho Singh(since deceased) assaulted with farsa. Receiving the aforesaid injuries, he fell down, but, while falling trigger was pushed making another blank fire. The further case is that Manjho assaulted him with barcha while Basudeo Pandey assaulted with rod and Badri Singh inflicted injury on his leg by Talwar. Thereafter, Tikait Khagendranath Singh, Tejo and Badri pounced upon his hand and snatched his gun. The further case is that Fago 3 Dhobi, Somar Baitha, Manjho Singh,Sanjho Singh and Baidnath Singh dragged him to the paddy field and Fago and Somar assaulted him with handle of the farsa breaking his teeth. After assaulting him all the accused persons flew away. There after the informant's brother Mathura Rai, Sukhdeo Rai, Dilo Mahto and Qadir Mian came, then the injured Muni Rai disclosed about the occurrence. Then the victim was brought to the Hospital for treatment where he was treated. Thereafter, Mathura Rai gave his written report to the Officer In-charge Birni P.S.; which was registered and after investigation submitted charge sheet against 26 accused persons under various sections including section 307/149,395/149 and 397 of the Indian Penal Code. Cognizance of the offence was taken against all the accused persons and the case was committed to the court of sessions, since the same was exclusively triable by the court of Sessions.
3. It appears that during investigation and trial some of the accused persons died, hence finally only nine accused persons faced the trial and were convicted. It is submitted by learned counsel for the appellants that during the pendency of this appeal, the appellant no.7, Tejo Rai also died and affidavit to this effect has been filed by Debaki Rai S/o Tejo Rai. Hence appeal of Tejo Rai has finally abated as per section 394 of the Cr.P.C.
4. Learned counsel for the appellants submitted that the conviction of the appellants u/s 307/149 of the I.P.C. is bad in law and fit to be set aside. It is submitted that as per the deposition of P.W.6 , injured and victim of the case, except appellant no.2 Raghunath Mahto, appellant no. 5 Baso Pandey, Appellant no.7 Tejo Rai(since deceased) and Appellant no. 9 Fagu Dhobi, there is no specific allegation against the appellant no.1,3,4,6 and 8 for commission of any overt act. He has not stated that they had come with any arms or weapon and they had any motive behind the alleged occurrence. Learned counsel has relied on various judgment of Hon'ble Supreme Court to show that the aforesaid appellants cannot be convicted with the help of section 149 I.P.C. He has relied upon the judgment reported in "2005(vol-1) Eastern 4 Indian Criminal Cases page 10. He has further argued that appellant no. 2,5 and 9 have not assaulted on any vital part of the body and all the injuries were not grievous in nature and they have also not motive to cummit the murder of the injured, P.W.6. In that view of the matter there conviction u/s 307 I.P.C is also bad in law. He has further contended that the conviction of the appellant u/s 395/149 of the I.P.C is also un-warranted in view of the judgment of Supreme Court since as per the evidence of P.W.6 only Tikait Khagendra Nath Singh(Since deceased), Appellant no.7,Tejo Rai(since deceased) and Badri Singh(Since deceased) had allegedly snatched away the gun and as such there was no motive of snatching the gun against the other accused persons nor they made any attempt to do the said act of snatching the gunr and as such the conviction of the appellant is bad in law and fit to be set aside.
5. On the other hand learned counsel for the state submitted that although there is no direct evidence that appellant 1,3,4,6 and 8 participated in the assault of the victim, P.W.6, but they all surrounded him when appellant no. 2,5,7 and 9 were assaulting him as such they also had motive to commit the murder of the injured/victim. Hence, all of the them have been rightly convicted and sentenced as aforesaid.
6. After hearing both the parties and going through the evidences on record, I find that the injured P.W.6 stated in court that he had sufficient land in khata no. 1,3 and 9 and out of them khata no.1 was his ancestral land and the lands of other khata had been purchased from Khagia Devi. He acquired 7.90 2/3 acres of land by registered deed and the lands were jointly cultivated with co-holder Sanichar Mahto. He has stated that paddy crops of khata no. 3 was ripe for harvesting and on 3.11.1979 he had gone to the field for engaging some labourers for harvesting the paddy. He contacted Bandhua Dhobi, Qadir Mian, Dili Mahto and thereafter he proceeded towards village Gordih. After crossing the river with the D.B.B.L. gun in his hand, he saw Tikait Khagendranath Singh along with 200-250 persons possessing Talwar, Lathi, Barcha and 5 farsa coming towards him. They surrounded him and by the order of Tikait Khagendranath Singh to kill him and to loot his gun, all the accused persons started pelting stone towards him. He went behind the palash tree and made blank fire from his gun and again he loaded the gun, but in the meanwhile Tikait Khagendranath Singh came from behind and assaulted him on his head by farsa causing head injury. Thereafter Tejo Rai assaulted on his right arm by Barcha while the accused Raghunath assaulted on hand with farsa. Sanjho assaulted with farsa. He fell down on the ground and while falling the trigger of the gun was pressed causing fire . His further evidence is that Manjho assaulted with Barcha, Baso with rod, Badri with Talwar causing injuries. Thereafter Tikait Khagendranath Singh, Tejo Rai and Badri Singh pounced upon his hands and snatched his gun. The gun was taken away by Tikait Khagendranath Singh. It is stated that thereafter, Fagu, Somar, Manjho, Sanjho and Baidnath Singh dragged him to the field were he was again assaulted by Fagu and Somar with the handle of the farsa, as a result of which his teeth were broken. He also received injuries on his thigh. Thereafter, accused persons fled away. His brother Mathura Rai with Sukhdeo Rai, Dilo Mahto and Qadir Mian came to him to whom he disclosed the name of the accused. He identified all the accused in the court. He was cross examined at length about the land of Baliari village. He clearly stated that he has ancestral lands as well as purchased lands in village Bhargore, Kharkhari and Baliari. On the manner of occurrence , he has been minutely cross examined and he stated that from the distance of 24-25 yards away he saw all the accused persons coming towards him. When they came near him or when the assault was given by Tikait Khagendranath Singh, then he flee away behind the tree and fired from the gun to save his life. Thereafter, he stated about the assault on him by the accused persons as stated above. In the cross examination he stated that the entire mob had not come to the field and only 10-12 persons had assaulted him coming there. The witnesses clearly stated that he received injury on head by farsa, in the right arm by Barcha and also by farsa , sword and rod.
6The second main witness is the Doctor , P.W.9 Ambika Prasad Singh who examined the injured Muni Rai. He has stated that he examined the injured on 3.11.1971 about 9 p.m. and found the following injuries:-
i) Incised wound on the middle of skull 6"x4" bone deep.
ii) Two incised wound on the lateral side of the right leg just below knee joint.
a) 4 ½ "x ½ "x cutting and fracturing the tebial bone.
b) 3"x1"xbone deep.
iii) Incised punctured wound on the right dealtwide region 1"x ¾ " x 2".
iv) Incised would on the middle of right forearm on the middle size 1"x ½ " x ¾ "
v) Abrasion involving the right middle side of right forearm 6"x2".
vi) Incised would on the back of right hand 3"x ½ "x ¼ ".
vii) Breakage of two lower left teeth.
viii) Fracture of right thigh bone.
ix) Bruise on the left buttock 4"x2".
In the opinion of the doctor, injury no. i,(ii)(b), iii,iv,v,vi and ix were simple injury and injury no. i,ii,iv,vi caused by sharp cutting weapon like farsa and sword. Rest injuries were caused by hard and blunt substance. In the opinion of the doctor, if the injuries taken together can be dangerous to life and sufficient to cause death. He has stated that the injuries were caused within last 12 hours. Thus the doctor has fully supported the evidence of P.W.6 and as stated by the injured P.W.6, the doctor found injuries on his head, arm, leg and hand. He also found breakage of two lower left teeth and fracture of right thigh bone. As stated by P.w.6, it appears that other witnesses have also supported the prosecution case.
Dilo Mahto, P.W.1 deposed in the court that while he was fishing in the river he heard hulla. Then he went over the hill top where he saw Muni Rai is surrounded by many persons. Muni Rai made blank fire where upon Tikait Saheb assaulted Muni Rai with 7 farsa on the head. Badri assaulted on the leg with Barcha. Baso assaulted on the right arm with iron rod and Tejo Rai assaulted with Barcha in the hand of Muni Rai. Muni Rai fell down. Thereafter, Tikait Saheb, Badri Singh and Tejo Rai pounced Muni Rai and snatched his gun which was taken by Tikait Saheb. He has stated that the place of occurrence land was jointly cultivated by Muni Rai and Sanichar Mahto.
P.W.2 is Qadir Mian also supported the prosecution case and stated that he was also fishing near the river and on hearing hulla he went up to the hill along with Dilo Mahto, Bandhan Dhobi and saw that about 250-300 people have surrounded Muni Rai variously armed with Farsa, Talwar and lathi whereupon Muni Rai made a blank fire, but in the meanwhile Tikait Saheb came from behind and assaulted Muni Rai on his head. Thereafter, Tejo Rai assaulted with Barcha on his right hand. Badri assaulted with sword. Thereafter Badri Singh, Tikait Sahab and others looted gun from Muni Rai on his head.
P.W.3 - Bandhan Dhobi, P.W.4-Kolha Mahto have also stated the same thing. Other witnesses , P.W.5 Hemaraj Mahto and P.W.8 Kailash Choudhary who are also chance witnesses have supported the prosecution case that Muni Rai was assaulted by Tikait Sahab with farsa on his head from behind. Thereafter, Tejo and Baso assaulted with Talwar and when Muni Rai fell down receiving injuries, then he was assaulted by other accused. P.W.7 was only tendered for cross examination.
7. The prosecution has also proved the seizure list marked as ext.4 and deposition of Sadan Kumar Srivastav in G.R. case no. 77/98 as ext. 5 who stated that he recovered the stolen gun from the possession of Gopal Narayan Singh S/o Tikait Khagendranath Singh of village Jaridih P.s. Birni for which a separate case was registered and Gopal Narayan Singh was tried. Gopal Narayan Singh S/o Tikait Khagendranath Singh now dead.
8. The prosecution has not examined the Investigating Officer. It was argued by the learned counsel for the defence that non examination of Investigating Officer has caused prejudice to the 8 defence case and cross examination of the witnesses on their statement before the Investigating Officer could not be tested due to non-examination of the Investigating Officer. The defence has also examined witnesses as D.W.s 1, 2, and 3. D.W.1 Nago Ram has stated that on the date of occurrence, Tikait Khagendranath Singh was performing yagna. In his cross examination he has stated that he is servant of accused Tikait Khagendranath Singh and in his presence no paddy was cut. D.W.2 Kaila Turi also stated the same thing and admitted that he was along with Badri Rai, Lali Rai, Badri Turi and claimed to see Muni Rai and others preparing to cut the paddy. He has submitted that by the fire of Muni Rai, Lali Rai and Badri Rai sustained injuries. But no injury report was proved nor Lali Rai or Badri Rai have been examined. D.W.3 is Kamdeo Choudhary is a formal witness who has proved the complaint petition of Tikait Khagendranath Singh marked as ext.D.
9. Thus, after going through the prosecution case and the evidences as discussed above, it is clear that all the accused persons had not come to the place of occurrence. P.W.6 himself admitted in his cross examination that only 10/11 persons came to the field where he was assaulted and out of them he has stated that only accused Tikait Khagendranath Singh assaulted him from behind causing head injury by farsa, thereafter, Tejo Rai assaulted him with Barcha on his right arm and Raghunath Gope assaulted him on his hand by farsa. Sanjho assaulted with farsa due to which he fell down. Thereafter, accused Manjho assaulted with farsa, Baso assaulted with rod, Badri assaulted with Talwar. Apart from them he has alleged that Fagu, Somar assaulted with handle of Farsa causing breakage of his teeth. Hence, only eight persons came to the filed with intention to cause the death of the injured, Muni Rai and assaulted him. The doctor has stated that he found all the injuries on the injured P.W.6 as stated against the accused persons and the doctor opined that the injuries were sufficient to cause his death.
10. In that view of the matter, all the aforesaid accused persons have rightly been convicted and found guilty u/s 307/149 of the 9 I.P.C. As held by the Hon'ble Supreme Court in the case of "2005(1) Eastern India Criminal Cases page10, Parsuram Pandey & others Vrs. State of Bihar" relied by the appellants. In the said case the learned Supreme Court has found in para 12 of its judgment that although accused were armed with gun and spear, since the weapons were not used either on the deceased or on the witnesses and in absence of evidence that they participated in the assault, it cannot be said they have common object and intention with the main accused to commit the murder and hence they cannot be found guilty for the offence u/s 149 of the I.P.C. and conviction u/s 307/149 I.P.C. is bad. In the instant case also except the aforesaid 8 accused persons other accused persons who were present at the place of occurrence had not participated in the assaulted. They had neither assaulted the injured P.W.6 Muni Rai nor had they assaulted any other witnesses.
11. In that view of the matter, their conviction u/s 307/149 of the I.P.C. is unwarranted. Accordingly, appellant no. 2 Raghunath Mahto (gope), appellant no.5 Baso Pandey , appellant no. 7 Tejo Rai (since deceased) and appellant no.9 Fago Dhobi are found guilty u/s 307/149 of the I.P.C. and they have rightly been convicted. Their appeal is dismissed. But, so far as appeal of appellant no.1, Jhandu Mahto, appellant no.3 Parmeshwar Modi, appellant no.4 Meghlal Singh, appellant no. 6 Janardhan Pandey and appellant no. 8 Hari Mahto is concerned, it is accordingly allowed. They are acquitted from the charges u/s 307/149 I.P.C. However, their conviction and sentence u/s 147 is maintained and affirmed.
Since, from the evidence of P.W.6 and other witnesses, it is clear that so far as snatching of gun is concerned, it is attributed only against three accused persons i.e. Tikait Khagendranath Singh, appellant no.7-Tejo Rai and Badri Singh, all of them are deceased and there is no allegation that other appellants also participated in snatching the gun and the gun was taken away by the accused Tikait Khagendranath Singh and was recovered from the possession of his son as has been found in ext.4 and 5. Hence, 10 the conviction of the other appellants u/s 395/149 I.P.c. is also bad in law and the same is set aside. They are acquitted from the charges u/s 395/149 of the I.P.C.
12. In the result, the appeal is allowed in part. Since the appellants namely appellant no. 2 Raghunath Mahto (gope), appellant no.5 Baso Pandey and appellant no.9 Fago Dhobi are found guilty u/s 307/149 of the I.P.C. and they are on bail, the learned trial court is directed to issue warrant of arrest against them for serving the sentence. However, the sentences already undergone by them during the trial and appeal will be set of.
Since, appellant no. 1,3,4,6 and 8 have been found guilty u/s 147 of the I.P.C., the trial court will issue warrant of arrest against them also for serving out the sentence. If they have already remained in jail for two years during trial and appeal, then the same will be set off.
13. With the aforesaid observation, the appeal is allowed in part.
[Pradeep Kumar, J] Jharkhand High Court, Ranchi The 13th Mayl, 2009 A.K.M./NAFR