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Rit Lal Mahto vs State Of Bihar on 29 March, 2010

Patna High Court
Rit Lal Mahto vs State Of Bihar on 29 March, 2010
Author: Dharnidhar Jha
                                CRIMINAL APPEAL No.156 of 1988
                                             WITH
                                CRIMINAL APPEAL NO.98 of 1998

                       Against the judgment of conviction and order of
                       sentence dated 11th February, 1988 passed by 6th
                       Additional Sessions Judge, Munger in Sessions
                       Case No.324/83.

                                 Cr.Appeal No.156 of 1988

                   RIT LAL MAHTO------------------------Appellant
                                         Versus
                   STATE OF BIHAR----------------------Respondent

                                 CR. APP (DB) No.98 of 1988
           1.    BHOLA MAHTO
           2.    PARMESHWAR MAHTO
           3.    LUKHAR MAHTO &
           4.    JHUPAR MAHTO--------------------------Appellants
                                          Versus
                STATE OF BIHAR------------------------Respondent
                                          ------
                       For the appellants:-Sri Farooque Ahmad Khan
                                           Sri Indu Bhushan Prasad,Advocates
                                           (in Cr.Appeal No.98 of 1988)
                      For the appellant:- Sri Rakesh Kumar Sinha No.1
                                           Sri Anuj Prakash,Advocates
                                           (in Cr.Appeal No.156 of 1988)
                      For the State:-       Sushri Shashi Bala Verma,A.P.P.

                                             P R E S E N T

                           THE HON'BLE SRI JUSTICE DHARNIDHAR JHA
                          THE HON'BLE SRI JUSTICE AKHILESH CHANDRA


  Dharnidhar Jha &                     Six accused persons were put on trial by the
Akhilesh Chandra,JJ.

learned 6th Additional Sessions Judge, Munger in

Sessions Trial No.324 of 1983. They had been charged

together under Sections 302 and 149 of the IPC

except acquitted accused Dwarika Mahto who was

charged under Section 302 read with 120B of the

Penal Code. The appellant Rit Lal Mahto was also
-2-

separately charged under Section 302 of the Penal

Code. The learned trial Judge while delivering the

judgement on the 11th of February,1988 acquitted

accused Dwarika Mahto of the charges framed against

him and found the five appellants of the two appeals

guilty. Appellant Rit Lal Mahto was found guilty of

committing offence under Section 302 of the Penal

Code and was directed to suffer rigorous

imprisonment for life. The two appellants Bhola

Mahto and Parmeshwar Mahto-appeal of Jhupar Mahto

and Lukhar Mahto having abated-were convicted of

offence under Sections 302 and 149 of the Penal Code

and each of them was directed to suffer rigorous

imprisonment for life. The two appeals were

preferred by them for challenging the conviction and

sentences inflicted upon each of them.

2. We have heard the two appeals together

and we are disposing of them by this common

judgement.

3. P.W.8 Most. Paitri Devi, who happened to

be the wife of the deceased Lakhan Mahto, gave her

fardbeyan to the officer-in-charge of Chakai police

station stating that she and her husband were

sleeping outside their house by the side of the wall

on two separate cots. The wife of the younger
-3-

brother of the deceased, namely, Kaili

Devi(P.W.2)was also sleeping with her child just

near by. When it was about mid-night and when the

moon had come out, she woke up on picking up the

sound of arrival of some persons and found the eight

accused persons named in the FIR there who were

armed with lathi, farsa and tangi. They all came

near the deceased who was sleeping. P.W.8 stated

that accused Jhupar Mahto and Lukhar Mahto(died

during the pendency of the trial) were armed with

farsa, whereas appellant Rit Lal Mahto had a tangi

in his hand. Other accused persons were armed with

lathi.

4. P.W.8 specifically alleged that appellant

Rit Lal Mahto gave a blow with tangi on the left

temporal region of the deceased while he was

sleeping on the cot as a result of which he wreathed

in pain and died instantaneously. Other accused

persons, thereafter, started dragging out the dead

body of her husband. The informant raised a cry

imploring the people of village to come as the

accused persons were attempting to take away the

dead body of her husband. The cries of P.W.8

attracted Sukho Mahto(P.W.8), Sarju Mahto(P.W.1),

Kaili Devi(P.W.2), Mahadeo Mahto(P.W.5) and others
-4-

upon which the accused persons fled away leaving the

dead body of her husband. The informant claimed that

the witnesses had seen the occurrence and had

identified the accused persons.

5. As regards the motive for commission of

the offence it was stated by P.W.8 that about four

days prior to the date of occurrence there had been

some quarrel between the deceased and accused

Dwarika Mahto and during that course Dwarika Mahto

had given out that he will behead the deceased and

it was why the husband of P.W.8 had been murdered.

6. The investigating officer of the case has

not been examined. As such, we do not know as to how

the investigation proceeded, but this much appears

clear that on the basis of Ext-2, the fardbeyan of

P.W.8, FIR of the case, Ext-4 was drawn up and

inquest report was also prepared, after holding

inquest on the dead body of the deceased. P.W.9 Dr.

Narendra Mohan Sharma appears holding postmortem

examination on the dead body and preparing the

report in that behalf which was marked Ext-3 during

trial. The witnesses who have been examined must

have been cited as a chargesheet witnesses and might

have been questioned by the investigating officer

before closure of investigation. From these
-5-

documents, we could gather that materials had been

found sufficient for putting the accused persons up

on trial.

7. The defence of appellants was of false

implication on account of the dispute for land in

between accused Dwarika Mahto, who was the father of

appellant Rit Lal Mahto and who was acquitted by the

learned trial Judge. The other appellants of

Cr.Appeal no.98 of 1988 pleaded false implication

for reasons best known to the informant.

8. The prosecution examined a total number

of ten witnesses in support of the charges, out of

whom P.W.5 Mahadeo Mahto was declared hostile though

the witness appears stating one important fact in

his examination-in-chief that when he reached at the

scene of occurrence, the wife of Lakhan Mahto, i.e.,

P.W.8 stated to him that appellant Rit Lal Mahto,

Jhupar Mahto(since dead)and 2-4 other persons had

murdered her husband Lakhan Mahto by a tangi. P.W.7

Angrej Mahto was tendered for cross-examination.

P.W.10 Suresh Prasad was a witness of formal nature

who proved the writings of a particular police

officer appearing on the FIR and this is how that

document was marked Ext-4. Other witnesses who also

fall in the same category of formal character was
-6-

P.W.6 Bhuneshwar Mahto who had signed the fardbeyan

as a witness to it besides signing the inquest

report too.

9. Out of remaining witnesses, except P.W.8

Paitri Devi, none of the witnesses, like, P.W.1

Sarju Mahto, P.W.2 Kaili Devi and P.W.4 Sukho Mahto

were witnesses to the real part of the occurrence

and they stated that when they reached the scene of

occurrence, they found appellant Rit Lal Mahto and

accused Jhupar Mahto(since dead) dragging the dead

body in an attempt to take it away. P.W.5 as just

pointed out did not state the above facts though

stated that P.W.8 had stated to him that it was Rit

Lal Mahto and others who had killed her husband. The

other witnesses like P.Ws.1, 2 and 4 have stated

that when they reached they also learnt from P.W.8

that it was appellant Rit Lal Mahto who had killed

her husband with a Kulhari.

10. While criticizing the judgments of the

learned lower court, it was contended by the learned

counsel appearing for appellants Bhola Mahto and

Parmeshwar Mahto that except P.W.8 none of the

witnesses like P.Ws 1, 2, 4 or 5 has stated that he

had seen any of the two appellants even dragging

away the dead body. It was contended that only P.W.8
-7-

stated that the accused persons started dragging

away the dead body so as to taking it away but her

evidence in paragraph 1 at page 28 of the paper book

is also not specific as she does not name any

particular accused in that connection and simply

implicated the accused persons generally. It was,

contended as such, that the two appellants, namely,

Bhola Mahto and Parmeshwar Mahto deserved to be

acquitted on account of not being named by any of

the witnesses as persons who had attempted to take

away the dead body by dragging it.

11. As regards Rit Lal Mahto, the learned

counsel appearing on his behalf contended that his

implication is by the evidence of solitary witness

P.W.8 and when the court considered her evidence in

paragraph 5 at page 29 of the paper book, what it

could find is that she woke up after hearing the

cries of her husband and, as such, she may not be an

eye witness to the assault part of occurrence. It

was further contended that the other witnesses did

not implicate the appellant Rit Lal Mahto by stating

that any of them had seen him giving the decisive

blow so as to killing the deceased Lakhan Mahto. It

was, lastly, contended that it was a case of

solitary blow and it may not be a case under Section
-8-

302 of the Penal Code and the facts may attract the

offence under Section 304 part II IPC.

12. Sushri Shashi Bala Verma, the learned

Additional Public Prosecutor, has contested the

contentions as regards the proof of charge against

appellant Rit Lal Mahto by submitting that the FIR

recites that the blow was given with full force.

P.W.8 supports her allegation contained in Ext-2 by

stating in her examination-in-chief as also in her

cross-examination that it was only appellant Rit Lal

Mahto who had assaulted her husband by a tangi and

the doctor who held the postmortem examination found

the corresponding injury which was the cause of

death. It was contended that the appellant Rit Lal

Mahto had the intention to kill the deceased and

that could be gathered from many circumstances

attending upon the facts of the case. Sushri Verma

submitted that it could never be a case under

Section 304 part II Penal Code and it could be out

and out an offence under Section 302 IPC.

13. The case of the prosecution is confined

to the solitary eye witness P.W.8 Paitri Devi who at

the relevant time was the wife of the deceased. She

appears having married another man after her husband

was killed by the accused persons, as per her
-9-

allegation. The fact that she married another man is

stated by P.W.2 Kaili Devi also who happens to be

the wife of the younger brother of the deceased

Lakhan Mahto and who could very well be supposed to

know the subsequent events which could have occurred

after murder of Lakhan Mahto. We are not concerned

much about that evidence of P.W.8. What we find

after considering the evidence of P.W.8 is that she

personally did not have any reason to falsely

implicate any person in a charge of murdering her

husband. Nothing was brought on the record of the

case by cross-examining P.W.8 or any of the ten

witnesses to indicate that P.W.8 could be deeply

motivated or interested in seeing that the charge

framed against appellant Rit Lal Mahto or against

any of the accused persons be proved by her

evidence on account of any particular reason. The

fairness of the witness could be gathered from one

line of her evidence in paragraph 6, which is the

cross-examination part of the evidence of P.W.8,

when she stated that her husband was assaulted only

by Rit Lal Mahto and by none of the other accused.

She further stated that the other accused persons

were simply standing near the place of occurrence.

This single line of evidence of P.W.8 brings the

– 10 –

quality of the witness to such a standard as not be

said to be tainted by any particular reason. No

witness could be as fair as we find P.W.8 to be.

For this reason, we place our implicit faith on the

evidence of P.W.8.

14. It is true that P.W.8 has stated that

all accused persons came together and some of them

were armed with some weapons also, but when we read

the evidence of P.W.8 in her examination-in-chief in

paragraph-1, what we find is that she had

generalized the allegation by giving a general type

of evidence that after Rit Lal Mahto had given a

blow with tangi so as to cutting and killing Lakhan

Mahto, the accused persons started dragging away the

dead body. She had not specified any particular

accused who was catching hold of the deceased so as

to dragging him away. This part of the story appears

narrated by other witnesses like P.Ws.1, 2 and 4

each of whom has stated that when he or she reached

at the scene of occurrence after picking up the

cries of the lady, they found two accused, namely,

Rit Lal Mahto and accused Jhupar Mahto(since dead)

dragging the dead body so as to taking it away. None

of them stated that they had seen any other accused

persons except the above two even standing or moving

– 11 –

along with the above two on or about the scene of

occurrence. What they have further stated is that

they heard P.W.8 stating that it was appellant Rit

Lal Mahto who had killed the deceased with a tangi.

Thus, we find that the complicity of the two

appellants, namely, Bhola Mahto and Parmeshwar Mahto

in dragging away the dead body of Lakhan Mahto after

he had been killed, appears not properly and

satisfactorily established.

15. Besides the evidence of P.W.8 Paitri

Devi, witnesses like P.Ws.1, 2, 4 and even 5-who was

declared hostile-have stated that P.W.8 was stating

that it was appellant Rit Lal Mahto who had killed

her husband with a weapon like tangi. We have

consulted the provisions of Section 6 of the

Evidence Act which makes the evidence of hearsay

admissible under a particular exceptional

circumstance as is stated to by that particular

provision of Evidence Act. That provision reads as

under:-

Relevancy of facts forming part
of same transaction.-Facts which,
though not in issue, are so
connected with a fact in issue as to
form part of the same transaction,
are relevant, whether they occurred
at the same time and place or at
different times and places.

For the purposes of the present discussion

– 12 –

we also want to refer to illustrations A appended to

Section 6 which reads as under:-

A is accused of the murder of B by
beating him. Whatever was said or done
by A or B or the by-standers at the
beating, or so shortly before or after
it as to form part of the transaction,
is a relevant fact.

16. On a composite reading of the main

provisions of Section 6 read with illustrations A of

the Evidence Act what may transpire is that any word

which was spoken by either the deceased or any one

who could be present at the place of occurrence when

the occurrence was being committed may be a relevant

fact. We could admit the evidence of P.Ws.1, 2, 4

and 5 under Section 6 of the Evidence Act when they

stated that P.W.8 was giving out that it was

appellant Rit Lal Mahto who had killed her husband

with a tangi/Kulhari. The evidence of the other

witnesses lends corroboration to evidence of P.W.8

and we find that the complicity of Rit Lal Mahto was

established beyond doubt.

17. This brings us to consider as to what

offence could be constituted under the facts of the

case. The allegation is that Rit Lal Mahto dealt a

forceful blow with tangi on the left temporal region

of the deceased. This statement appears in the FIR

but we are not concerned much about that as we have

– 13 –

the evidence of P.W.8 before us and she has stated

that the appellant Rit Lal Mahto dealt a tangi blow

on a temple of her husband and killed her. P.W.9 Dr.

Narendra Mohan Sharma who held the postmortem

examination on the dead body of Lakhan Mahto found

an incised wound on the left side of the face in

front of left ear. It was above and down- words

measuring 4 ½”x1″x bone, cutting left parietal,

temporal and upper part of mandible. We also find

after perusing the original document which was

marked Ext-3 that the meninges of the brain had also

been damaged on account of the above blow and the

above injury was the cause of death which was caused

by heavy sharp cutting weapon like an axe. The

evidence of doctor could, thus, give a clear picture

as to how heavy was the blow which was wielded by

appellant Rit Lal Mahto. While deciding to give the

blow, the appellant appears chosing one of the most

vital parts of the human body. Not only that, for

committing the offence the appellant has also chosen

the most unearthly hour of the day, i.e., the mid-

might when few souls could be awoke. This may give

an inkling as to the intent and knowledge of the man

who was wielding the blow. He did not want any one

to be a witness of the occurrence. He wanted his

– 14 –

blow to be so decisive, as not to leave any chance

for the deceased to survive

18. Considering these circumstances

together, we could not reach any other conclusion

than that the appellant was moving with a clear

intention that he had to kill the deceased Lakhan

Mahto. The evidence of P.W.8 indicates that after

the blow had been given by the appellant Rit Lal

Mahto, the deceased died instantaneously on the

spot.

19. Considering these aspects of the matter,

we are of the view that it could not be any other

offence than the offence of murder and the

contention of the learned counsel for the appellants

that the case could be one under Section 304 part II

of the IPC appears to us not acceptable.

20. After having discussed the evidence

available to us on the record of the case, we find

that the appeal of appellant Bhola Mahto and

Parmeshwar Mahto has to be allowed on account of

extending the benefit of doubt to the above named

two appellants. As regards appellant Rit Lal Mahto

his conviction under Section 302 of the Penal Code

appears properly recorded and we, accordingly,

dismiss his appeal, i.e., Cr.Appeal no.156 of 1988.

– 15 –

21. Cr.Appeal No.98 of 1988 is allowed in

the light of the above findings. Appellant Rit Lal

Mahto is on bail on account of being granted the

privilege by order dated 3.5.1989 passed in

Cr.Appeal No.156 of 1988. His bail bonds are

cancelled. He shall surrender to serve out his

sentence. As regards appellants Bhola Mahto and

Parmeshwar Mahto, they shall stand discharged from

the liabilities of their respective bail bonds on

account of being acquitted.

( Dharnidhar Jha, J. )

( Akhilesh Chandra,J. )
Patna High Court,
Dated, the 29th of
March,2010,
Brajesh Kumar/NAFR

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