Jharkhand High Court
Indradeo Dangi @ Inderdeo Mahto vs The State Of Jharkhand on 15 May, 2019
Author: Sanjay Kumar Dwivedi
Bench: H. C. Mishra, Sanjay Kumar Dwivedi
Cr. Appeal (D.B.) Nos.72 and 120 of 2001
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 72 of 2001
With
Cr. Appeal (D.B.) No. 120 of 2001
(Against the Judgment of conviction dated 9.2.2001 and Order of sentence
dated 13.2.2001, passed by the Additional Session Judge-I, Chatra, in S.T.
No. 44 of 1992.)
......
1. Indradeo Dangi @ Inderdeo Mahto
2. Jeolal Dangi @ Jeolal Mahto
3. Munna Devi
4. Savitri Devi ... ... Appellants (In Cr. Appeal (D.B.) No. 72/2001) Nageshwar Dangi @ Nageshwar Mahto ... ... Appellant (In Cr. Appeal (D.B.) No. 120/2001) Versus The State of Jharkhand ... ...Respondent (In all the above appeals) ......
PRESENT HON'BLE MR. JUSTICE H. C. MISHRA HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ......
For Appellants: Mr. Binod Kumar Dubey For Respondent: Mr. Satish Kumar Keshri.
......
C.A.V. 29.04.2019 Pronounced on: 15.05.2019 S.K. Dwivedi J.:- As both these appeals arise out of the same impugned Judgment, they have been heard together and are being disposed of by this common Judgement.
2. Heard learned counsel for the appellants and the learned counsel for the State in both these appeals.
3. The appellants are aggrieved by the impugned Judgement of the conviction dated 9.2.2001 and Order of sentence dated 13.2.2001, passed by the learned Additional Session Judge-I, Chatra, in S.T. No. 44 of 1992, Cr. Appeal (D.B.) Nos.72 and 120 of 2001 -2- whereby, these appellants have been found guilty and convicted for the offences under Sections 302, 201 and 120B of the Indian Penal Code. Upon hearing on point of sentence, the appellants have been sentenced to undergo R.I. for life, for the offence under Section 302 of the Indian Penal Code and rigorous imprisonment of three years for the offence under Section 201 of Indian Penal Code. No separate sentence for the offence under Section 120 B of Indian Penal Code was awarded.
4. The prosecution case was instituted on the basis of the written report of the informant Kanhai Mahto, the father of the deceased Ramkali Devi, resident of village Uto, P.S. Chatra, District Chatra on 13.06.1991, wherein he has stated that he solemnized the marriage of his daughter, Ramkali Devi with Nageshwar a few years back. On 12.6.1991(Wednesday) at about 3 P.M., Byasdeo Dangi of village Pitij informed him that his daughter had been beaten up by the in laws and due to this his daughter had become sick. On getting this information he came to village Pitij at about 5 P.M., where he was informed by Ladiya Devi and Jeevlal Dangi that his son in law Nageshwar Mahto, and Indradeo Mahto, Jeevanlal Mahto, Savitri Devi, Munna Devi together murdered his daughter Ramkali Devi in the house itself and they went to burn the body. The above two witnesses informed that in burning the body illegally, there are hands of Kishori Dangi, Virendra Dangi, Bhusi Dhangi, Sukhdev Dangi, Deodhari Mahto, Ato Mahto, Jammuna Mahto and Gulam Dangi who are residents of village Pitij P.S Ithkori. When he reached cremation ground he found the above named persons taking bath. When he enquired about the incident from them, all of them ran to beat him up. The cause of incident is said to be illicit relation of the son-in-law (Nageshwar Mahto) with his aunt Munna Devi, as his daughter (Ramkali Devi) was resisting this relationship and due to this his daughter had been murdered. Along with him his co- villagers Govind Ram, Arjun Prasad, Tuleshwar Dangi and Krishna Kumar Das, had also gone to cremation ground and due to rain in the last night he could not go to the police station in that night. On the basis of written report of Kanahi Mahto, formal F.I.R was drawn and it was registered as Itkhori P.S. Case No. 51 of 1991 dated 13.6.91 under Sections 302, 201 / 34 of Indian Penal Code. After investigation Police submitted the charge-sheet, pursuant to which, six accused persons were sent up for trial.
Cr. Appeal (D.B.) Nos.72 and 120 of 2001 -3- During the pendency of this appeal accused Gurdayal Mahto died, and by order dated 25.4.2019 of this Court, the name of Gurdayal Mahto was deleted from the array of the appellants.
5. After commitment of the case to the Court of Session, charge was framed against the six accused persons, namely, Nageshwar Mahto, Indradeo Mahto, Jeewlal Mahto, Sabitri Devi, Munna Devi and Gurdayal Mahto for offences under sections 302 / 34, 201 and 120B of the Indian Penal Code and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial.
6. In course of trial, thirteen witnesses were examined by the prosecution, including the I.O. as P.W.-11 Mithilesh Kumar Singh, who has proved the F.I.R as Exhibit- 2, and P.W.-6 Sushil Kumar, a formal witness has also proved the same as Exhibit-1. He has not said anything on the point of occurrence. P.W.-13 Niranjan Mahto is a formal witness who has proved an agreement as Exhibit-3. He has not said anything on the point of occurrence. Out of the material witnesses examined, P.W.-3 Vyas Deo Dangi and P.W.5 Lachhia Devi have turned hostile and have not supported the prosecution case at all.
7. P.W.-12 Kanhai Mahto is the informant of the case and father of the deceased Ramkali Devi. This witness has said that he has been informed about the occurrence and thereafter he reached at the spot of the occurrence. He almost repeated the statements as made in the written report, thus, supporting the prosecution case.
8. P.W.-1 Govind Ram Dangi has also supported the case. He said that he went to cremation ground along with Kanhai, and saw the dead body burning. Gurudayal Mahto, Nageshwar Mahto,Jeevlal Mahto, Indredeo Mahto, Gulab Mahto, Munshi Mahto were there. Kanhai asked his Samdhi that why they were burning the dead body. Nageshwar replied that they would burn it. Kanhai said that he was going to police station.
9. P.W.-2 Tuleshwar Dangi, has said that the incident took place on 12.06.1991. He has said that on that day he went to the house of son-in-law of Kanahai Mahto, namely, Nageshwar Mahto, along with Kanahai Mahto and came to know that they had taken the dead body for Cr. Appeal (D.B.) Nos.72 and 120 of 2001 -4- burning to the cremation ground. We went to cremation ground and saw that the dead body being burnt. Gurdayal Mahto, Nageshwar Mahto, Jeevlal Mahto, Indradev Mahto, Hulao Mahto, Dansi Mahto were present there. Kanahai Mahto enquired from his samdhi / father-in-law of the deceased that why body was being burnt, but he insisted that they would burn the dead body.
10. P.W.-4 Muneshwar Dangi said that the incident is of 12.06.1991. Ramkali Devi was his sister-in-law. Ramkali Devi suffered from diarrhoea and loose motions and due to this she died. He went to inform Kanahai Mahto, and along with him he came back to village Pitij and went to the house of Nageshwar Dangi, and found Ramkali Devi dead. He enquired from them and accused informed that she died due to diarrhoea. Thereafter, they took her to the cremation ground and burnt the dead body. Later on, he came to know that Ramkali Devi had been murdered by Nageshwar Dangi. This had been informed by the elder son of Ramkali Devi namely, Govind Dangi. In his cross-examination he has stated that the house of Nageshwar Dangi and his house are in the same locality. Nageshwar Dangi resides along with his family. On information from Gurudayal he had not gone to the house of Nageshwar Dangi. His in-laws had gone there. He has stated that he had also participated in burning the body of Ramkali Devi. The dead body was burnt on the approval of Kanahai Mahto. After cremation they came back at 6:00 P.M.
11. P.W.-7 Arjun Dangi, has stated that incident is of 12.07.1991. The information was received that after murder of Ramkali Devi her dead body was being burnt by Nageshwar Mahto, Indradeo Mahto, Gurudayal Mahto, Savitri Devi etc. He has further said that when he reached along with others near the river, the body was already burnt by Munshi Dangi, Gulab Dangi, Gurudayal Mahto, Yamuna Mahto, Indradeo Mahto, Jeevlal Mahto and some others, who fled away.
12. P.W.-8 Govind Kumar Dangi is the son of the deceased. He is a child witness, and has stated that he is residing with his maternal grandfather (Nana). He said that he is not remembering as how many days earlier the incident took place. He further said that his mother died four years ago. His father had killed her. His father Nageshwar Dangi pushed his mother in the Cr. Appeal (D.B.) Nos.72 and 120 of 2001 -5- courtyard and pressed her neck due to which she died. The other family members were present there. Thereafter she was taken away for burning. Thus, this child witness has not stated about any assault by the other family members.
13. P.W.-9 Arjun Dangi, has said that the incident is of 12.06.1991. He further said that on that day he was at his home and Vayas and Bhuneshwar Dangi of Pitij village came to his village for calling Kanahai Mahto. They told that his daughter is ill. Kanahai Mahto went there and came to know that his daughter had been murdered. He further stated that when he reached the cremation ground Munshi Dangi, Gulab Dangi. Indradeo Dangi and 50 to 60 other people were burning the body. On being threatened by them they came back.
14. P.W.-10 Krishna Kumar Das has stated that on 12.06.1991 Vayas and Bhuneshwar Dangi of Pitij village came to his village and told Kanhai Mahto that his daughter was serious. Then he along with Kanhai came to village Pitij, where he was informed that Nageshwar Dangi, Indradeo Dangi, and her father-in-law, mother-in-law had murdered Ramkali and had gone to burn the dead body. He went to cremation ground and saw the dead body burning. Accused were also there, and upon asking, they threatened to assault them. Thereafter they went to police station, where written report was given by Kanhai Mahto. He has proved the written report as Exhibit-2.
15. P.W.-11 Mithilesh Kumar Singh is the I.O., who has proved the F.I.R as Exhibit-2. He has stated about the investigation made by him. At the place of occurrence he had found the ground smeared, due to which no blood stain was found by him. At the cremation ground also he did not find anything as the place was washed by water.
16. The statements of the accused persons were recorded under section 313 of the Cr.P.C., wherein they have denied the evidence against them. The defence had examined three witnesses to prove themselves innocent. D.W.-1 Satrangun Prasad is the ex-mukhiya and he has said that on 11.06.1991 Ramkali Devi died due to diarrhoea. The defence has examined D.W.-2 & D.W.-3 namely, Gopi Krishna Prasad and Mathura Ram Dangi, who have proved a sale deed as Exhibit- A, executed Cr. Appeal (D.B.) Nos.72 and 120 of 2001 -6- by the Nageshwar Dangi in favour of his sons Govind and Vikas. On the basis of the evidence on record, the appellants have been convicted and sentenced as aforesaid, by the Trial Court below.
17. Learned counsel for the appellants has submitted that impugned Judgement of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, in as much as the I.O. P.W.11 Mithilesh Kumar Singh had not found anything incriminating at the house of the accused or at the cremation ground. Out of the material witnesses examined P.W.-3 and P.W.5 have turned hostile and have not supported the prosecution case at all. P.W.-8 Govind Kumar Dangi was in the clutch of his maternal grandfather, who is the informant, thus his evidence is not reliable. Though he has stated that his father strangulated his mother to death, but his evidence is not corroborated by any other evidence. There is evidence that dead body was burnt on the approval of the informant Kanhai Mahto. As such the prosecution has failed to prove the case beyond all doubts.
18. Learned counsel for the state has opposed the prayer, submitting that the prosecution case is fully supported by eye witness, who is the son of the deceased. The other witnesses had seen the dead body being burnt by the accused persons. There may be minor discrepancies in the evidence of the witnesses, but that is due to lapse of time, and submitted that minor discrepancies or some improvements also would not justify rejection of the testimonies of the witnesses, if they are otherwise reliable.
19. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that the evidence of the child witness P.W.-8 Govind Kumar Dangi, the son of the deceased is very important. He has stated that his father Nageshwar Dangi pushed his mother in the courtyard and pressed her neck, due to which she died. Thereafter she was burnt. As it is argued by the learned counsel for the appellants that this child was in clutch of his maternal grandfather, in the interest of justice, we have looked in the case diary, and we find that similar statement was given by him before the police also. As such his testimony is trustworthy. His mother was assaulted within the house, and the family members are accused. There was no one else at that time. Therefore the corroboration of his evidence by any independent witness was not possible. In his evidence there Cr. Appeal (D.B.) Nos.72 and 120 of 2001 -7- is no allegation of assault against any other accused. But the manner of assault stated by this witness does not make out the offence under section 302 of the Indian Penal Code even against the accused Nageshwar Dangi, as there is nothing to show that the neck was pressed with the intention to kill. In our considered view the offence is made out only under Section 304 Pt. II of the Indian Penal Code, against the accused Nageshwar Dangi. There is evidence on record to show that accused Nageshwar Mahto, Indradeo Mahto and Jeewlal Mahto, were burning the dead body. As such, the offence under section 201 of the Indian Penal Code is made out against them. There is no positive evidence against the female accused Sabitri Devi and Munna Devi of committing any offence.
20. Thus, on the basis of the evidence on record, we find and hold that the prosecution has failed to bring home the charge for offence under Sections 302 of Indian Penal Code against all the appellants. Rather the offence is made out only under Section 304 Pt. II of the Indian Penal Code against the accused Nageshwar Dangi only. The offence under section 201 of the Indian Penal Code is made out against the accused Nageshwar Dangi, Indradeo Mahto and Jeewlal Mahto. No offence is made out against the female accused Munna Devi and Savitri Devi.
21. For going reasons, the impugned Judgment of conviction dated 9.2.2001 and Order of sentence dated 13.2.2001, passed by the Learned Additional Session Judge- I, Chatra in S.T.No. 44 of 1992, are hereby, modified to the effect that the appellants Munna Devi and Savitri Devi are found not guilty and acquitted of all the charges, and their conviction and sentence passed by the Trial Court are hereby, set aside. The Judgment of conviction of the appellants, Indradeo Dangi @ Inderdeo Mahto and Jeolal Dangi @ Jeolal Mahto, is hereby, modified to the effect that they are found guilty and convicted for the offence only under Section 201 of Indian Penal Code and their conviction and sentence passed by the Trial Court for the offences under Sections 302 and 120B of Indian Penal Code are hereby, set aside. They are sentenced to undergo R.I. for three years for the offence under Section 201 of Indian Penal Code. The Judgment of conviction of the appellant Nageshwar Dangi @ Nageshwar Mahto is hereby, modified to the effect that his conviction and sentence for the offences under Sections 302 Cr. Appeal (D.B.) Nos.72 and 120 of 2001 -8- and 120B of Indian Penal Code are set aside, but he is found guilty and convicted for the offences under Sections 304 part-II and 201 of the Indian Penal Code. He is sentenced to undergo R.I. for three years for the offence under Section 201 of Indian Penal Code, and R.I. for eight years for the offence under Section 304 Part-II of Indian Penal Code.
22. The record shows that the appellants Indradeo Dangi @ Inderdeo Mahto and Jeolal Dangi @ Jeolal Mahto have remained in custody for 3&1/2 years. The accused Nageshwar Dangi has remained in custody for eight years and seven months. As such, all the convicted appellants have already served their sentence. All the appellants are on bail, and they are discharged from the liabilities of their respective bail bonds.
23. Cr. Appeal (D.B.) No. 72 of 2001 is allowed as regards the appellants Munna Devi and Savitri Devi, but as regards rest of the appellants, both these appeals are accordingly, dismissed with the modification in the Judgment of conviction and order of sentence as aforesaid. Let the Lower Court records be sent back to the Court concerned forthwith, along with a copy of this Judgement.
(Sanjay Kumar Dwivedi, J.) H.C. Mishra, J.:- I agree.
(H.C. Mishra, J.) Jharkhand High Court, Ranchi Dated, the 15th May, 2019 MM /NAFR