CASE NO.: Appeal (crl.) 588 of 2005 PETITIONER: Rabindra Mahto & Anr. RESPONDENT: State of Jharkhand DATE OF JUDGMENT: 06/01/2006 BENCH: S.B. Sinha & P.P. Naolekar JUDGMENT:
J U D G M E N T
WITH
CRIMINAL APPEAL NO. 589 OF 2005
Balram Mahto ————Appellant
Versus
State of Jharkhand ————Respondent
WITH
CRIMINAL APPEAL NO31.. OF 2006
(Arising out of S.L.P. (Crl.) NO. 2218 of 2005)
Girish Chandra Mahto @
Girish Mahto & Ors. ————–Appellants
Versus
State of Jharkhnd ————Respondent
P.P. NAOLEKAR, J.
Leave granted in S.L.P. (Crl.) No. 2218 of 2005
The accused appellants were convicted and sentenced by the
Additional Judicial Commissioner. The appellants Rabindra Mahto,
Balram Mahto and Lemboo Mahto were found guilty under Section 302
IPC and were sentenced to undergo rigorous imprisonment for life and
to pay a fine of Rs.10,000/- and in default to further undergo rigorous
imprisonment for two years. The appellants Jag Mohan Mahto, Fagu
Mahto, Dhananjay Mahto, Huna Mahto and Girish Mahto were found
guilty under Section 302 read with Section 149 I.P.C. and were
accordingly convicted and sentenced to undergo rigorous imprisonment
for life and to pay a fine of Rs.500/- and in default to further undergo
rigorous imprisonment for one month. Further appellants Jag Mohan
Mahto and Lemboo were found guilty under Section 323 IPC and were
convicted and sentenced to undergo rigorous imprisonment for five
months. All the sentences were directed to run concurrently. The
appeal preferred by the accused-appellants was dismissed by the High
Court, aggrieved by the same, the present proceedings were taken up
by the appellants.
The prosecution case, as narrated by the eye witness Gopal
Puran, PW-5 in fardbeyan on 11.7.1989 at 8.30 P.M. before Sub-
Inspector N.P. Singh of P.S. Jopno Puti Tola, is that at about 9.00
A.M. he had gone to his field lying in Jopno Puti Tola Kend Tand with
Sohrai Puran, Ram Mohan Puran, Cheta Puran, and others. They
sowed Gunja in the field and thereafter they were taking rest under the
Kend Tree. They saw that from the side of Jopno Village Balram
Mahto, Rabindra Nath Mahto, Girish Mahto, Fagu Mahto, Huna Mahto,
Dhananjay Mahto, Lemboo Mahto, Laloo Mahto, Jagmohan Mahto
along with five-six other persons, armed with tangi, lathi, farsa and
sword came to the spot and enquired from them as to why they plowed
the field, whereupon there was an exchange of hot words. All of a
sudden Huna Mahto pelted stone on Sohrai Puran, the deceased, as a
result of which Sohrai Puran fell down. Balram and Rabindra
assaulted Sohrai Puran and also assaulted Ram Mohan Puran.
Thereafter Jagmohan, Laloo, Lemboo, Fagu and others attacked Ram
Mohan and Sohrai Puran with lathi, farsa and sword as a result of which
Sohrai Puran and Ram Mohan Puran died. Gopal Puran, PW-5 and
Cheta Puran, PW-9 were also assaulted by lathi. Thereafter they ran
towards Village Puti Tola and raised alarm whereupon villagers came
to the spot but before they could arrive, the accused fled away from the
scene of occurrence. As mentioned above this fardbeyan was recorded
on 11.7.1989 at 2030 Hrs. i.e. 8.30 P.M. and the FIR was registered at
10.00 A.M. on 12.7.1989. The copy of the FIR was sent to the
concerned Magistrate on 13.7.1989.
The Additional Judicial Commissioner and the High Court, on
the basis of the evidence placed on record by the prosecution, found
that the prosecution proved beyond reasonable doubt that the accused
Rabindra, Lemboo and Balram committed the offence of murder of
Sohrai Puran and Ram Mohan Puran and other appellants committed
crime in furtherance of their common object forming unlawful
assembly, which was formed to commit murder of the deceased persons
and attack on the members present with them. On the basis of evidence
of eye-witness, as there was specific evidence of assault by accused
Rabindra Mahto, Balram Mahto and Lemboo Mahto on the deceased
with tangi, sword and farsa, which was corroborated by the medical
evidence, they were found guilty of the offence under Section 302 IPC
and other accused persons who assaulted the deceased with Lathi were
held guilty of an offence under Section 302 read with Section 149 of
Indian Penal Code.
The post mortem report prepared by PW-7, Dr. Niranjan Minz
found the following injuries on deceased Sohrai Puran:
1. Incised wounds:-
(a) 8.3 cm x bone deep on the front part of
the left side of the chest and adjoining left
shoulder cutting the soft tissues, under bones
partially and the first and the second ribs left
side completely;
(b) 11×3 cm x cavity deep on the left
tempro parietal region of the head cutting the
left external on the head cutting the left
external ear partially and cutting the left
tempro parictal bone completely and the
underlying brain partially;
(c) 4x1 = cm x soft tissue on the right arm medial side; (d) 8x4 cm x soft tissue on right chest
lateral side situated 3 cm below the right
axilla;
(e) 6×2 cm x bone deep on the left
bottom upper part cutting the soft tissues and
the underlying bone partially.
2. Lacerated wounds:
2×1 cm x soft tissues on left leg front middle.
3. Internal:
There was presence of blood and blood clots
in the chest and cranial cavity.
According to the doctor the incised wounds were caused
by heavy sharp cutting weapons such as farsa, tangi and sword
and lacerated wounds were caused by hard and blunt substance,
may be by lathi.
On the same day at about 1330 Hrs. said doctor conducted
postmortem examination on the dead body of Ram Mohan and
found the following ante mortem injuries:
1. Abrasion:
(i) 2 x 2 cm on right leg front
upper part
2. Bruise:
24 x 2 cm, and 16.2 cm on the back
of the chest left side lateral part
3. Incised wounds:
1. 11 x 1/4 cm x soft tissues on the right
scapular region.
2. 8 x 2 cm x cavity deep on the left
occipital parietal region of the head cutting
the underlying bone and the brain matter.
3. 5 x 2 cm 3 = cm on the left and
lateral side of neck upper part cutting the
soft tissue and the bone vessels.
4. 4 x 1/4 cm x soft tissues on left
elbow lateral side.
4. Internal:-
There was contusion of soft tissues of the
chest wall left side. There was fracture of
third to 10 ribs with laceration of the left
lung. There was presence of blood and
blood clots in the chest and cranial cavity.
According to the doctor, the injuries were caused by hard
and blunt substance, may be by lathi and stone and incised
wounds were caused by heavy sharp cutting weapons such as
farsa, tangi or sword.
It is urged by Shri D.N. Goburdhan, learned counsel for
the appellants that the delay in lodging of the FIR and thereafter
further delay in sending the same to the concerned Magistrate,
clearly indicates that the accused-appellants have been falsely
implicated and on this count alone the prosecution case fails and
is required to be discarded. It is further urged by Shri Goburdhan
that the accused-appellants could not have been convicted for the
offence under Section 302 IPC with the aid of Section 149 of the
Indian Penal Code when there is no evidence of a common object
of the assembly to commit murder of Sohrai Puran and Ram
Mohan Puran.
Shri Anil Kumar Jha, learned counsel appearing on behalf
of the State, on the other hand, inter alia submitted that the
common object of the assembly has to be gathered from the facts
and circumstances of the case and that in this case there is
enough evidence on record to indicate that all the accused-
appellants have formed unlawful assembly to commit an offence
of murder of two deceased persons, namely, Sohrai Puran and
Ram Mohan Puran. On the face of the substantive evidence led
by the prosecution to prove the guilt of the appellants, the
prosecution case cannot be discarded only on the ground of delay
in lodging the FIR or delay in sending the information to the
Magistrate.
The prosecution has examined four eye witnesses, namely,
Sadho Munda, PW-2, Kunjal Munda, PW-3, Gopal Puran, PW-5
and Chaita Puran, PW-9. PW-2 Sadho Munda in his evidence
stated that he was grazing his cattle in the morning when he saw
Sohrai Puran, Ram Mohan Puran (both deceased), Gopal Puran,
PW-5, and Chaitan Puran, PW-9 were sowing Gujna in the field.
He further stated that he saw the accused persons along with
some unknown persons who came towards the field from the side
of Jopno Village. Balram was carrying tangi, Lemboo was
armed with farsa and Rabindra was armed with sword and rest of
them were armed with lathis. They came and assaulted Sohrai
Puran and Ram Mohan Puran and also assaulted Gopal and
Chaita. Gopal and Chaita fled away from the field. After the
accused ran away from the scene of incident, he came near the
injured persons who were then breathing and they were taken to
their houses but they died on the way. To the same effect is the
statement of PW-3 Kunjal Munda, who was also grazing his
cattle in the nearby field and saw the complaining party plowing
the field for sowing Surguja. He stated that after sowing they
were taking rest under the tree when he saw from the eastern side
of the village Jopno, the accused party proceeding towards the
place of incident. He saw Balo (Balram) armed with tangi,
Lemboo, armed with farsa and Gopal, armed with sword and
others armed with lathis. He saw the accused party assaulting
Sorhai Puran and Ram Mohan Puran. He also saw Gopal and
Chaita were inflicted injuries. PW-5, Gopal Puran’s evidence
was to the effect that he went to the field for plowing it and for
sowing Sarguja and when they were taking rest under the tree, he
saw all the accused persons approaching them from the village
Jopno, armed with sword, tangi and farsa. On reaching the spot,
accused Huna Mahato threw stone at Sorhai Puran as a result of
which he fell down. Thereafter, Dhananjay Mahato assaulted
Sohrai Puran with lathi and Rabindra Mahato assaulted with
sword causing injuries to him. Lemboo also assaulted Sorhai
Puran with farsa. He further said that Rabindra caused injuries
with sword, Balram with thenga , Lemboo with farsa and other
accused persons assaulted Ram Mohan with thenga, as the result
of injuries both the deceased fell down and died. He further
deposed that Girish Mahato assaulted him with thenga on head
and Fagu Mahato hit him on the right arm with lathi. Jag Mohan
hit Chaita with Thenga. Thereafter, he along with Chaita fled
away to Puti Tola. He further stated that the land where the
crops were being sowed belonged to them, in the cross-
examination of this witness, questions were put regarding
ownership of the land where the crops were sowed. He was
asked whether there was any case in respect of the land between
the parties. From this line of cross-examination, it is apparent
that the defence is claiming ownership over the land.
Another eye witness examined by the prosecution is Chaita
Puran, PW-9. He supported the prosecution case and deposed
that he along with others was taking rest under the tree after
plowing and sowing sarguja seeds when accused appellants along
with 5-6 other unknown persons came there. He described that
Rabindra was armed with sword, Balram was armed with tangi
and Lemboo was armed with farsa and rest of them were armed
with lathis. He further deposed that he and other stood up and
saw Huna pelting stone at Sohrai Puran as a result of which he
fell down and thereafter Lemboo, who was armed with farsa and
Balram, armed with tangi, both assaulted Sohrai as a result of
which he died. Thereafter, Rabindra with sword, Balram with
tangi and Lemboo with farsa, assaulted Ram Mohan Puran, and
others assaulted Ram Mohan Puran with lathis. He was also
assaulted by Jag Mohan and Laloo with lathi. Thereafter, they
fled from the spot. This witness stated that the occurrence took
place due to the land in Kend Tad. He further deposed that it
was not correct that the accused persons had at all told that they
had purchased the Kenda Tad land in auction. For the first time
the accused persons told on the day of occurrence that it was their
land.
The main thrust of the argument of the learned counsel for
the appellants is that evidence on record shows that only three
accused-appellants, namely, Rabindra Mahato, Lemboo and
Balram Mahato have assaulted the deceased persons with sharp
edged weapons and in the absence of proof of common object of
the assembly to cause death of two deceased persons the other
accused persons could not have been convicted by taking aid of
Section 149 of the Indian Penal Code. Section 149 of the Indian
Penal Code postulates an assembly of 5 or more persons having a
common object i.e. one of those named in Section 141 of
Indian Penal Code and then doing of the act as by the members
of it in prosecution of that object. The basis of constructive guilt
under Section 149 is mere membership of an unlawful assembly.
Under Section 149, if the accused is a member of an unlawful
assembly, the common object of which is to commit a certain
crime, and such a crime is committed by one or more of the
members of that assembly, every person who happens to be a
member of that assembly would be liable for the commission of
the crime being a member of it irrespective of the fact whether
he has actually committed the criminal act or not. There is a
distinction between the common object and common intention.
The common object need not require prior concert and a common
meeting of minds before the attack, and an unlawful object can
develop after the assembly gathered before the commission of the
crime at the spot itself. There need not be prior meeting of the
mind. It would be enough that the members of the assembly
which constitutes five or more persons, have common object and
that they acted as an assembly to achieve that object. In
substance, Section 149 makes every member of the common
unlawful assembly responsible as a member for the act of each
and all merely because he is a member of the unlawful assembly
with common object to be achieved by such an unlawful
assembly. At the same time, one has to keep in mind that mere
presence in the unlawful assembly cannot render a person liable
unless there was a common object and that is shared by that
person. The common object has to be found and can be gathered
from the facts and circumstances of each case.
From the facts found in the present case it appears that the
appellants claimed ownership of the land in question, when they
came to know that the deceased and their men plowed the land
which they claimed to be their, they armed with weapons came to
the place of incident to vindicate their right to the land by show
of force or use of force. The intention to assert the right by force
is apparent from the fact that the appellants were armed with
deadly weapons such as sword, tangi and farsa and some of them
were carrying lathis. All the persons came together at the spot
armed with weapons and immediately after reaching the spot,
after short exchange of words, they started assault and caused
grievous injuries to two persons who died on the spot. It is
alleged that the two eye witnesses namely PW-5 and PW-9 have
also been assaulted. The nature of the injuries found on the
deceased gives clear indication of a common intent of the
assembly to go to the extent of causing death of the persons who
have plowed their land. All the members reaching to the spot
together armed with weapons and immediate attack on the
persons present there ,clearly exhibits the intention of the
unlawful assembly. In the facts and circumstances of the case
we can safely infer the common object of the unlawful assembly
to do away with the deceased persons. We have been taken
through the evidence and cross-examination of the witnesses by
learned counsel for the appellants. We do not find any reason to
disbelieve the version of these witnesses which found approval
of two courts.
Learned counsel for the appellants has then urged that the
delay in lodging the FIR and thereafter further delay in
forwarding the same to the Magistrate concerned would lead to
the conclusion that FIR had been recorded much later than one as
shown in the document and as such the very genesis of the
prosecution case belies and cannot be relied upon to convict the
accused appellants. Learned counsel relied upon the decisions of
this Court in the matters of Meharaj Singh vs. State of U.P.
(1994) 5 S.C.C. 188, Arjun Marik and others vs. State of
Bihar, 1994 Supp. (2) S.C.C. 372 and Suresh Chaudhary vs.
State of Bihar (2003) 4 S.C.C. 128.
In the matter of Meharaj Singh (supra), this Court in Para
12 has stated as under:
“FIR in a criminal case and particularly in
a murder case is a vital and valuable piece of
evidence for the purpose of appreciating the
evidence led at the trial. The object of insisting
upon prompt lodging of the FIR is to obtain the
earliest information regarding the circumstance in
which the crime was committed, including the
names of the actual culprits and the parts played
by them, the weapons, if any, used, as also the
names of the eyewitnesses , if any. Delay in
lodging the FIR often results in embellishment,
which is a creature of an afterthought. On account
of delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also creeps in of
the introduction of a coloured version or
exaggerated story. With a view to determine
whether the FIR was lodged at the time it is
alleged to have been recorded, the courts
generally look for certain external checks. One of
the checks is the receipt of the copy of the FIR,
called a special report in a murder case, by the
local Magistrate. If this report is received by the
Magistrate late, it can give rise to an inference
that the FIR was not lodged at the time it is alleged
to have been recorded, unless, of course the
prosecution can offer a satisfactory explanation
for the delay in dispatching or receipt of the copy
of the FIR by the local Magistrate . Prosecution
has led no evidence at all in this behalf. The
second external check equally important is the
sending of the copy of the FIR along with the dead
body and its reference in the inquest report. Even
though the inquest report, prepared under Section
174 Cr.P .C., is aimed at serving a statutory
function, to lend credence to the prosecution case,
the proceedings get reflected in the report. The
absence of those details is indicative of the fact
that the prosecution story was still in an embryo
state and had not been given any shape and that
the FIR came to be recorded later on after due
deliberations and consultations and was then ante-
timed to give it the colour of a promptly lodged
FIR. In our opinion, on account of the infirmities
as noticed above, the FIR has lost its valu and
authenticity and it appears to us that the same has
been ante-timed and had not been recorded till the
inquest proceedings were over at the spot by PW-
8.
In the matter of Arjun Marik (supra), this Court in Para
24 has stated as follows:
“The matter does not stop here. There is yet
another serious infirmity which further deepens the
suspicion and casts cloud on the credibility of the
entire prosecution story and which has also been
lost sight of by the trial court as well as the High
Court and it is with regard to the sending of
occurrence report (FIR) TO THE magistrate
concerned on 22-7-1985 i.e. on the 3rd day of the
occurrence. Section 157 of the Code of Criminal
Procedure mandates that if, from information
received or otherwise, an officer in charge of
police station has reason to suspect the
commission of an offence which he is empowered
under Section 156 to investigate, he shall forthwith
send a report of the same to the Magistrate
empowered to take cognizance of such offence
upon a police report. Section 157 Cr. .C. thus in
other words directs the sending of the report
forthwith i.e. without any delay and immediately.
Further, Section 159 Cr. P.C. envisages that on
receiving such report, the Magistrate may direct
an investigation or, if he thinks fit, to proceed at
once or depute any other Magistrate subordinate
to him to proceed to hold a preliminary inquiry
into the case in the manner provided in the Code
of Criminal Procedure. The forwarding of the
occurrence report is indispensable and absolute
and it has to be forwarded with earliest dispatch
which intention is implicit with the use of the word
“forthwith” occurring in Section 157, which
means promptly and without any undue delay. The
purpose and object is so obvious which is spelt out
from the combined reading of Sections 157 and
159 Cr. P.C. . It has the dual purpose, firstly to
avoid the possibility of improvement in the
prosecution story and introduction of any distorted
version by deliberations and consultation and
secondly to enable the Magistrate concerned to
have a watch on the progress of the investigation”
In the matter of Suresh Chaudhary (supra) this Court in
Para 9 (bottom) has held that:
“That apart, the express message which
PW-13 sent to the Jurisdictional Magistrate
reached the said Magistrate at his place only on
1012.1092 nearly 1 = days after the said
complaint was registered and we find no
explanation from PW-13 as to this inordinate
delay which only adds to the doubtful
circumstances surrounding the prosecution case”.
There cannot be any manner of doubt that Section 157 of
Criminal Procedure Code requires sending of an FIR to the
Magistrate forthwith which reaches promptly and without undue
delay . The reason is obvious to avoid any possibility of
improvement in the prosecution story and also to enable the
Magistrate to have a watch on the progress of the investigation.
At the same time, this lacuna on the part of the prosecution would
not be the sole basis for throwing out the entire prosecution case
being fabricated if the prosecution had produced the reliable
evidence to prove the guilt of the accused persons. The
provisions of Section 157, Cr. P.C. are for the purpose of having
a fair trial without there being any chance of fabrication or
introduction of the fact at subsequent stage of investigation. The
cases cited by the learned counsel for the appellants do not lay
down any law that simply because there is a delay in lodging the
FIR or sending it to the Magistrate forthwith, the entire case of
the prosecution has to be discarded. The decisions rendered by
this Court and relied upon by the learned counsel for the
appellant would only show that this will be a material
circumstance which will be taken into consideration while
appreciating the evidence on record.
After going through the material on record, we are of the
view that the prosecution has led reliable evidence the veracity of
which is not dislodged by delay in recording of the FIR and delay
in sending the same to the Magistrate in the facts and
circumstances of this case. At best it can be taken to be an
infirmity in investigation.
For the aforesaid reasons, the appeals are dismissed.