Criminal Appeal No. 213 of 1991(R)
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Against the judgment of conviction and order of sentence dated 16.9.1991
passed by 7th Additional Sessions Judge, Palamau in Sessions Trial No.74
of 1985.
—
1. Ram Das Choudhry
2. Sita Ram Choubey
3. Prem Nath Choudhary
4. Abhilakh Mahto
5. Harihar Mahto
6. Sudama Mahto
7. Kanhai Mahto
8. Bigan Mahto
9. Sheo Dhari Mahto
10.Surja Deo Yadav
11.Ganesh Mahto
12.Munesh Mahto
13. Sheo Pujan Mahto ……………………….Appellants
VERSUS
State of Bihar now Jharkhand ……………………… Respondent
For the Appellant : Mr. A.S.Dayal
For the State : Mr.T.N.Verma, A.P.P
P R E S E N T
THE HON’BLE MR. JUSTICE AMARESHWAR SAHAY
THE HON’BLE MR. JUSTICE R. R. PRASAD
Reserved on 12.2.2009 Pronounced on 6.3.2009.
R. R. Prasad, J. All the appellants were put on trial to face charges under sections
447,379,147,148, 302/ 149, of the Indian Penal Code on the allegations
that they in prosecution of their common object did commit murder of
Chhatan Mistry. The trial court having found the appellants guilty for the
said charges sentenced them to undergo life imprisonment under section
302 read with section 149 of the Indian Penal Code. Further they were
sentenced to undergo rigorous imprisonment for two years under section
147 of the Indian Penal Code. Both the sentences were ordered to run
concurrently. However, no separate sentence was passed for the offence
under section 379 and 447 of the Indian Penal Code.
The case of the prosecution is that the informant Murari Mistry
(P.W.13) when came to his field on 6.7.1984 along with his father
Chhatan Mistry, who was having gun and also a bag containing
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documents relating to the land, they saw all the appellants variously
armed present over there and of them, the appellant, Abhilakh Mahto
was ploughing the field to whom Chhatan Mistry (the deceased) asked not
to plough from the field as the case has been decreed in his favour. But
Charitar Dubey, who in course of trial died, exhorted others to kill him and
by saying so he fired shot which hit on the leg of Chhatan Mistry, as a
result of which, he fell down and then all the appellants started assaulting
him with lathi indiscriminately. Thereafter, Sita Ram Choubey and
Charitar Dubey sat over the chest and started pressing it. Thereupon all
the accused persons started dragging him who raised alarm and upon it
informant came over there to rescue him but he was also assaulted by
the appellant Surya Deo Mahto and, therefore, he ran away from there
raising alarm, upon which when villagers assembled, accused persons fled
away by breaking the gun into pieces and also by taking away the bag.
Thereafter when the family members as well as villagers came over there,
they took Chhatan Mistry to Bishrampur Police Station on cot from where
he was taken to Hospital where he succumbed to his injuries. There at
State Dispensary Bishrampur, Fardbeyan (Ext.4) of Murari Mistry, son of
the deceased was recorded on the same day, i.e, on 6.7.1984 at 2.30 P.M.
and the matter was taken up for investigation by Nageshwar Prasad
Singh (P.W.14) who held inquest over the dead body and prepared an
inquest report (Ext.5) and then inspected the place of occurrence from
where he seized broken gun and a bag under seizure list (Ext.6).
Thereafter dead body was sent for post mortem examination which was
conducted by Dr. Ranjan Kumar Pandey (P.W.12) who found the following
injuries on the person of the deceased.
(i) Multiple abrasions on the sizes varying from ½ ” x ½
” x skin deep to 3″ x ½” x skin deep on right knee
and leg.
(ii) Multiple contusions of the size varying from 3″ x 1″ to
5″ x 1″ on the right knee with swelling of the knee
and fracture of right patellar bone.
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(iii) Oval lacerated wound 1- ½” x1″ x ½ ” on the middle
of the left leg with ecchymosis around the wound.
(iv) Contusions 3″ x 1″ and 3- ½ ” x 1″ on the left knee.
(v) Incised wound 2- ½ " x 1- ½ " x ¼ " on the upper
part of the right side of the scrotum.
(vi) Abrasion of the size 6" x 4- ½ " x skin deep on the
right glottal region.
(vii) Abrasion ½ " x ½ " on the lower part of the right side
of the back.
(viii) Lower part of the right arm and elbow swollen black
in Colour with fracture of the obecranon process of
the right ulnar bone.
(ix) Abrasion 3″ x 1″ x skin deep on the middle of the left
arm.
(x) Multiple abrasions of the size ½ ” x ½ ” and skin
deep to 1- ½ ” x ½ ” x skin deep on the left elbow
and upper part of the left forearm.
(xi) Incised wound of the size 1″ x ¼ ” x bone deep on
knuckle of the left index finger with fracture of the
underlying bone.
(xii) Black coloured defused swelling of the right side of
the face.
Accordingly, Doctor issued post mortem examination report
(Ext.3) with an opinion that death was caused by shock and haemorrhage.
After completion of investigation, police submitted charge sheet,
upon which cognizance of the offence was taken and in due course when
the case was committed to the court of sessions, charges were framed
against the appellants to which they pleaded not guilty and claimed to be
tried.
In course of trial, the prosecution has examined altogether 14
witnesses. Of them, Lalanji Vishwakarma (P.W.1) and the informant
Murari Misitry (P.W.13) claimed to have seen the occurrence whereas
P.Ws.4,5,7 and 8 claimed to have come to know about the occurrence and
the name of the assailants from he deceased whereas P.W.11 has claimed
that he was told about the occurrence not only by the informant but also
by the deceased and has also claimed to have seen certain accused
persons dragging the deceased. The trial court having placed its reliance
on the testimonies of the witnesses as aforesaid did find the appellants
guilty and hence recorded the order of conviction and sentence.
Being aggrieved with that order this appeal has been preferred.
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Learned counsel appearing for the appellants submits that the
informant (P.W.13) in course of his evidence has only named three
persons as assailants whereas P.W.11 claimed himself to be an eye
witness cannot in the facts and circumstances have opportunity to see the
entire occurrence when he had been informed about the occurrence by
P.W.13 and that other witnesses, namely, P.Ws. 4, 5,7,8 and 11 claimed
to have come to know about the occurrence and the name of the
assailants from the deceased but the informant is conspicuously silent
either in his fardbeyan or in his evidence over this matter and as such, the
trial court should not have placed any reliance on any of the witnesses but
the trial court without considering the material points showing
untrustworthiness of the witnesses did record the finding of the guilt of
the appellants and hence judgment of conviction and sentence is fit to be
set aside.
Having heard learned counsel appearing for the parties and on
perusal of the record, we do find that P.W.1 and the informant (P.W.13)
have claimed to have seen the occurrence as according to P.W.1 when he
was ploughing a field, he saw the appellants, namely, Ganesh Mahto,
Kanhai Mahto, Harihar Mahto ploughing a field and at that point of time
when the deceased Chhatan Mistry came over there he asked them to
plough the field only after the enquiry is made by the Circle Officer, upon
which the appellant Munesh Mahto caught hold of him and Charitar Dubey
(since died) fired shot hitting on the leg of the deceased, as a result of
which he fell down and then Charitar Dubey sat over the chest of the
deceased and then appellants, Munesh Mahto, Abhilakh Mahto and Sita
Ram Choubey assaulted him with lathi. Thereafter the appellants, Sheo
Dhari Mahto, Surya Deo Yadav, Sheo Pujan Mahto, Kanhai Mahto, Ganesh
Mahto, Harihar Mahto, Bigan Mahto and Sudama Mahto and also two
other persons took the dead body to some distance and when the
informant (P.W.13) reached over there, he was also assaulted by Surya
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Deo Yadav and then Charitar Dubey took away his paper and also broke
the gun into pieces and thereupon Munesh Mahto pushed lathi in the anus
of the deceased. The evidence of P.W.1 does not seem to be consistent
with the evidence of P.W.13, where he has testified that Charitar Dubey
fired shot on the leg of his father, who fell down and thereafter the
appellants, Abhilakh Mahto, Sheo Dhari Mahto, Ram Das Choudhary, Prem
Nath Choudhary, Sheo Pujan Mahto, Harihar Mahto and Sudama Mahto
started taking his father towards forest. Thus, it is evidently clear that
P.W.13 has not named any of the appellants who did assault the deceased
whereas according to P.W.1, Munesh Mahto, Abhilakh Mahto and Sita
Ram Choubey did assault the deceased when he fell down on the ground
and this assertion of P.W.1 about the persons who did assault the
deceased gets support from the evidence of P.Ws.4 and 7 and also from
P.W.5, who has disclosed the name of assailant as Sita Ram Choubey and
Abhilakh Mahto whereas P.W.8 had disclosed the name of assailant as
Abhilakh Mahto and Munesh Mahto and also the name of other
appellants, such as Sheo Dhari Mahto, Sudama Mahto, Bigan Mahto, Sheo
Pujan Mahto but they have not been named as assailants by other
witnesses. It would be worth while to note here that all the aforesaid
witnesses have claimed to have derived the knowledge of the occurrence
and also the name of the assailants from the deceased but such
statement about the disclosure being made by the deceased to the
aforesaid witnesses never find mentioned either in the evidence of
P.W.13 or in his fardbeyan but that appears to be an omission as it would
be evident from the medical evidence that none of the injuries found on
the persons of the deceased were on vital parts, rather those injuries
were found either on the leg or in the hands and in that situation, it can
easily be assumed that the deceased may have been in sense when the
witnesses came at the place of occurrence and, therefore, reliance can be
placed on the testimonies of those witnesses, though there are some
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contradictions relating to the persons who did assault the deceased but
names of the assailants could be confined to Sita Ram Choubey, Munesh
Mahto and Abhilakh Mahto, who have been named by all P.Ws. 4, 5, 7
and 8 as the assailants who did assault the deceased. So far the
appellants other than the aforesaid three persons are concerned, there is
no consistent evidence that they did assault the deceased in any manner
or did commit any other offence as alleged. Accordingly, they are
acquitted of all the charges levelled against them.
However, having found the witnesses to be trustworthy on the
point that Sita Ram Choubey, Munesh Mahto and Abhilakh Mahto did
assault the deceased, who died, still in face of medical evidence question
would be as to whether those three appellants can be held guilty for the
offence under section 302/149 of the Indian Penal Code as recorded by
the trial court or under section 302/34 of the Indian Penal Code ?
From the medical evidence as has been recorded earlier, it does
appear that Doctor did find as many as 12 injuries on the person of the
deceased but none of the injuries was on the vital parts, rather all the
injuries seem to be there either over the leg or on the hands. Moreover,
Doctor (P.W.12) who held post mortem examination has never opined
that those injuries caused on the person of the deceased was sufficient to
cause death and hence, they can not be held liable for the offence of
culpable homicide. That apart there is no evidence against them of
committing other offences as alleged.
In that view of the matter, finding of the guilt of culpable homicide
and also of other charges recorded by the trial court and also the order of
sentence passed against Sita Ram Choubey,, Munesh Mahto and Abhilakh
Mahto are hereby set aside though they are held guilty for the offence
under section 323 of the Indian Penal Code. Accordingly, they are
convicted and are sentenced for the period already undergone. So far
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other appellants are concerned, they are acquitted of all the charges
levelled against them.
In the result, this appeal is allowed but in part.
( R. R. Prasad, J. )
Amareshwar Sahay, J,
( Amareshwar Sahay, J. )
Jharkhand High Court, Ranchi
The 6th March, 2009.
NAFR/ N.Dev