Judgment:
1 Criminal Appeal (DB) No. 393 of 2008 With Criminal Appeal (DB) No. 322 of 2008 (Against the Judgment of conviction dated 15.01.2008 and order of sentence dated 18.01.2008 passed by the learned Additional Judicial Commissioner No. XVIIth, Ranchi in Session Trial No. 234 of 2002) Matan Mahto ...........APPELLANT [In Cr. A.(DB) 393/2008] Choto Singh @ Chotnath Singh …........APPELLANT [In Cr. A.(DB) 322/2008] Versus State of Jharkhand ….……RESPONDENTS (In both appeals) …… For the Appellants : Mr. Sanjay Kumar Pandey, Advocate. Mr. Suraj Deo Munda, Advocate. For the State : Mr. S.K. Srivastava, A.P.P. …… P R E S E N T HON’BLE MR. JUSTICE H.C. MISHRA HON’BLE MR. JUSTICE ANANDA SEN …...... C.A.V. On: 02.11.2017 Pronounced on: 08/11/2017 Ananda Sen, J: These two criminal appeals, being Cr. Appeal (DB) Nos. 393 of 2008 and Cr. Appeal (DB) No. 322 of 2008 have arisen out of common judgment of conviction dated 15.01.2008 and order of sentence dated 18.01.2008, were heard together and are disposed of by this common judgment. 2. These two appellants Matan Mahto (appellant of Cr. Appeal (DB) No. 393/2008) and Choto Singh @ Chotnath Singh (appellant of Cr. Appeal (DB) No. 322/2008) have been convicted and sentenced by judgment of conviction dated 15.01.2008 and order of sentence dated 18.01.2008, passed by the learned Additional Judicial Commissioner No XVII th, Ranchi in Session Trial No. 234 of 2002, arising out of Chanho P.S. Case No. 71/2001, corresponding to G.R. No. 2526 of 2001, whereby and whereunder, the learned trial court having found both the appellants guilty, convicted them for committing the offence punishable under Sections 364/34, 302/34 and 201/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for 10 years and 2 to pay a fine of Rs.5000/ each for committing the offence punishable under Section 364/34 IPC, rigorous imprisonment for 5 years and to pay a fine of 2000/ each for committing the offence punishable under Section 201/34 IPC and lastly rigorous imprisonment for life and to pay a fine of Rs.10,000/ each for committing the offence punishable under Section 302/34 IPC and it was ordered that all the sentences shall run concurrently. It was ordered that in default of payment of fine, further imprisonment for 6 month. 3. The prosecution case is based upon the fardbeyan of one Kameshwar Mahto (P.W.5). He stated that his maternal aunt (Maasi) Bandhan Devi (the deceased) is residing with her four minor children and is earning her livelihood by working in brickkiln. On 8.9.2001, she returned from Chapra. On 9.9.2001, the informant was working in his agricultural field, when his cousin Muni Kumari aged about 7 years, came crying and narrated before him, that on the last night Ropana Oraon and Biglah Oraon came to her house and demanded money for the purpose of consuming liquor but her mother did not pay the same. At night, when they were sleeping at about 21 hours, her uncle Matan Mahto and Banda Budhwa @ Konka Budhwa and two others persons entered their room after dislodging the tiles (Khapras) of the roof. Two persons had covered their faces so she could not identify them. Those persons assaulted her mother and dragged her out of house by help of a rope and took her away. She also narrated to the informant that her uncle Matan Mahto, in greed of money, could commit murder of her mother. 4. The fact, which was narrated by Muni Kumari to the informant was told by the informant to the police officials at Chanho Police Station, which was reduced in writing and is the fardbeyan, giving rise to Chanho P.S. Case No. 71/2001. Initially the FIR was lodged under Sections 364/34 IPC. During investigation, the dead body of the deceased was found, as such Sections 3 302/201 were added. 5. After completion of investigation, the police submitted chargesheet against these two appellants and one Bando Budhwa under Sections 302/34, 364/34 and 201 IPC. The case was committed to the Court of Session. Charges were framed under the said Sections against the accused persons, which was read over and explained to them, but the accused pleaded innocence and claimed to be tried. 6. It would be pertinent to mention herein that Bando Budhwa died during the pendency of the trial, as such, proceeding against him was dropped vide order dated 27.9.2007. 7. The prosecution, to prove its case, has examined altogether following ten witnesses: 1. P.W.1 Dr. A.K.Choudhary. . 2. P.W.2 Bigan Sah @ Birendra Sahu 3. P.W.3 Shiv Charan Mahto. 4. P.W.4 Munni Kumari. 5. P.W.5 Kameshwar Mahto. 6. P.W.6 Suresh Gupta. 7. P.W.7Umesh Sahi. 8. P.W.8 Piyush Kumar 9. P.W.9 Ram Swaroop Ram, and 10. P.W.10 Bijay Singh. 8. After closure of the evidence of the prosecution, the statements of the appellants were recorded under Section 313 Cr.P.C. They denied their involvement and claimed that they have been falsely implicated in this case. The defence did not produce any witness.
9. The trial court, after hearing the arguments on behalf of the parties and after going through the materials available on record, vide judgment dated 15.01.2008, convicted the appellants for the offence under Sections 364/34, 302/34 and 201/34 of the Indian Penal Code and sentenced them by order dated 18.1.2008 to undergo imprisonment for life. 4 10. Challenging the said judgment of conviction dated 15.01.2008 and order of sentence dated 18.01.2008, these two appellants have preferred these two separate appeals.
11. We have heard the learned counsel appearing for the appellants and the learned Addl. P.P. We have also scanned the evidences and gone through the lower court records. 12. The counsel appearing on behalf of Choto Singh @ Chotnath Singh (appellant of Cr. Appeal No. 322/2008) submits that there is no evidence against this appellant in this case. He submits that in fact, this appellant is not even named in the FIR. As per him, the FIR is against two named persons and two unknown persons. He further states that as per the evidence of sole eye witness i.e. P.W.4Munni Kumari, the two persons, who are not named in the FIR, had covered their faces by cloths so she could not identify them. That being the position, then how the name of this appellant surfaced in this case is a mystery. Learned counsel for the appellant also submits that none of the witnesses have stated that how this appellant has been made accused and how he was identified, and what are the materials to implicate this appellant in this case. He further submits that in court for the first time, P.W. 4, who is a child witness, has taken the name of this appellant as one of the miscreants, but how she could identify this appellant, has not be substantiated by the prosecution. He further submits that it has come in evidence that the members of banned organization i.e. MCC have committed the crime, which is evident from the evidence adduced by the prosecution. As per him, as because, the appellant Matan Mahto had some dispute with the deceased, these appellants have been made accused in this case. It is further stated that admittedly no overt act has been attributed by the appellant nor any motive has been attributed. In absence of any overt act and motive, the appellant could not have been convicted in this 5 case. 13. On behalf of accused Matan Mahto [Cr.Appeal (DB) No. 363/2008], it has been argued that since there was previous enmity between the deceased and this appellant, this appellant has falsely been implicated in this case. He submitted that from the evidence of the witnesses, it is quite clear that the occurrence has been executed by the banned Maoist group but because of enmity, this appellant has been falsely implicated in this case. It is submitted that the investigation in this case is perfunctory, which is apparent from the evidence of Investigating Officer himself. It is further argued that identification of the dead body that to be of the deceased is doubtful. It is further submitted that the entire case hinges on the testimony of P.W.4, a child witness, aged about 7 years and the said witness is not capable to depose in court and it would be apparent from perusal of her deposition and the way she answered the questions. He further submits that the trial court had wrongly relied upon the evidence of this witness and solely on that basis, this appellant has been convicted. It is submitted that the entire case hinges on different circumstances, whose chain is not complete and thus, the appellant is entitled to get the benefit of doubt in this case. 14. On the contrary, the learned Addl. P.P. submits that the conviction of the appellant is absolutely justified, which needs no interference by this Court in view of the evidences produced by the prosecution. It is further submitted that there is no occasion to disbelieve the testimony of the sole eye witness, i.e. P.W4 (Munni Kumari). He submits that the said witness had categorically stated that these appellants had assaulted and dragged the deceased from her house after trespassing and later on, the dead body was recovered from the banks of the river. He also submits that this circumstance clearly suggests that the appellants have committed the murder of the deceased. He further submits 6 that there is sufficient motive to kill the deceased as the appellantMatan Mahto has serious property dispute and was in inimical terms with the deceased and therefore, the trial court has rightly convicted the appellants. 15. While scrutinizing the evidence, we find that in this case, there are 10 witnesses who have been examined by the prosecution. P.W.1 Dr. Ajit Kumar Choudhary: is a doctor, who conducted the postmortem of the deceased. He stated that he conducted the postmortem of the deceased on 22.09.2001 and the report was marked as Ext.1. As per his report, the dead body of a female was identified by Choukidar. He deposed that the dead body was in highly decomposed state with peeling of skins. The soft tissues of front of chest, abdomen, neck, right lower limb, anterior points of ribs, thoracico abdominal viscera were eaten away by animal, except small portion of abdominal viscera, which was converted into a mass. As per the said Doctor, there was no evidence of any mechanical injury (antemortem) on the available portions of the body. The cause of death could not be ascertained by the doctor and a portion of abdominal viscera was preserved for chemical examination. It was opined by the Doctor that the time of death of the deceased is between 1 3 weeks as the dead body was in highly decomposed state. The head was present. P.W.2 Bigan Sah: This witness stated that he came to learn that the deceased was murdered by MCC people. He was declared hostile. . P.W.3 Shiv Charan Mahto: This witness is the father of the deceased. He is a hearsay witness. He stated that he received information that the deceased was dragged by the appellants towards the river side with the help of rope tide around her neck. He stated that on receipt of the said information, he reached the village. He stated that his daughter returned from Chapra one day ago. He stated that the dead body was recovered from the river bank after 13 days and 7 they informed the police. Police came and took the dead body. He further stated that he had signed the inquest report. At this stage, the learned APP who was conducting the trial, after going through the case diary as well as other records, informed the trial court that the Inquest report is not the part of the record. He stated that there was a land dispute between the deceased and Matan Mahto as the deceased wanted to purchase a piece of land, which Matan Mahto also wanted to buy. This witness after seeing the accused identified him as Matan Mahto, but latter on he stated before the Court that Matan Mahto was not present in Court. Further this witness has categorically stated that what he has narrated in court has not been stated by him before the police. He stated that he is saying what he has heard from his grand daughter. He stated that the deceased had dispute in relation to a land with Matan Mahto. He stated that his daughter (deceased) had narrated this 8 days before the date of occurrence. To a Court's question, he stated that his daughter has gone to Chapra 45 months ago as she was working as a labour supplier. This witness could not even identify the accused Matan Mahto, though as per the ordersheet of the trial court, he was physically present in court on that date. P.W.4 Munni Kumari: is a child witness and the daughter of the deceased. She stated that her mother was dragged by tying a rope around her neck. She stated that she had heard the sound of firing. She stated that Matan Mahto had taken her mother and had also taken the money after breaking open the box, which was kept in her room. She also stated that she and her siblings were threatened when the incident was taking place. She stated that Matan Mahto, Konka Budhwa, Chotu and Bara Budhwa took her mother. She stated that she alone by catching 407 Vehicle went to her maternal aunt 's (Maasi) house and with her maternal aunt went to the police station. She stated that in 8 police station she has narrated that Matan Mahto, Bara Budhwa, Konka Budhwa and Chotu had taken away her mother. She stated that she returned from police station in police vehicle. She stated that her mother was about to purchase a land. She further stated that the dead body of her mother was found near the river but she did not go there to see the dead body. She stated that Matan Mahto came and demanded money, which her mother refused and thus, she was dragged away. She identified all the appellants, who were present in Court. She stated that Matan Mahto is their adjoining neighbour. She further stated that her mother used to work in brick kiln. She stated that she had narrated before the police that she heard the sound of firing of gun. She denied the suggestion that she is a tutored witness and was tutored by the maternal grand father. P.W.5 Kameshwar Mahto: is the informant of this case. He supported the statement of P.W.4 given to him, which forms the fardbeyan. He stated that when he was working in the field, Munni Kumari came and narrated to him that at night, by removing the tiles (Khapra) of the roof, her uncle Matan Mahto and Konka Budhwa entered into the house and others were not identified by her. They, by putting rope around the neck of her mother, dragged her out of the house and took her towards the river side. He stated that he took Munni to Chanho Police Station and he narrated the story, which he heard from Munni. The police recorded his statement and finding the statement to be true, this witness has put his signature, which was marked as Ext.2. This witness could only identify Matan Mahto in court. He also stated that he has not stated before the police that the deceased had illicit relationship with Chotu Singh. Nothing more was extracted from him in cross examination. P.W.6 Subhash Gupta: has been declared hostile. 9 P.W.7 Umesh Sahi: has also been declared hostile. P.W.8 Piyush Kumar: is a Judicial Magistrate, 1st Class and had recorded the statement under Section 164 Cr.P.C. given by one Vijay Singh. He stated that he had recorded the statement of Vijay Singh in his own pen and the said statement was read over to Vijay Singh and thereafter, finding the same to be correct, Vijay Singh has put his LTI. The said document was marked as Ext.3. LTI of Vijay Singh is marked as Ext.3/1. P.W.9 Ram Swarath Ram: is the Investigating Officer. He stated that he was posted as SubInspector of Police at Chanho Police Station on 9.9.2001. He stated that he recorded the fardbeyan, which was marked as Ext. 4 and the formal FIR was prepared on the basis of said fardbeyan, which was marked as Ext.4/1. He stated that he recorded the restatement of the informant and the statement of other witnesses. He described the place of occurrence (i.e. the house of the deceased) and stated that the tiles of the roof of the house were damaged. He stated that from the roof, the accused persons entered into the room and thereafter by assaulting the deceased dragged her and took her towards the river side. He stated that he heard rumour on 21.9.2001 that a dead body was found near the bank of river. He stated that he did not go to the place after hearing such rumour. He stated that inquest report was prepared and signatures of independent witnesses were taken on it. He stated that the apparels and other cloths which were found on the dead body was not seized by him. He also stated that he did not find any rope tied with the neck of the deceased. He stated that he proceeded in this case after hearing rumour that in the village one lady has been kidnapped. He denied the fact that the investigation is perfunctory. P.W.10 Bijay Singh: is the brother of the accused, Chotu Singh. He admitted that he has got his statement recorded under Section 164 Cr.P.C. before the 10 Magistrate. In crossexamination, he stated that Chotu Singh was in visiting terms with the deceased and he often used to go to her house. 16. From the evidences what has been led by the prosecution, we find that the entire case hinges upon the statement of the sole eye witness (Munni Kumari) i.e. P.W.4, who is a child witness and is the daughter of the deceased. There are no other witnesses who had seen any part of the occurrence. P.W.3 Shivcharan Mahto, is the father of the deceased and the grandfather of P.W.4. He has been examined to prove that there was a property dispute between Matan Mahto and the deceased, in relation to purchase of a land. He also stated that the dead body was found after 13 days from the date of occurrence and he is a signatory to the inquest report. He also stated that 8 days prior to the date of occurrence, his daughter told him that she wanted to purchase of a land, which was the subject matter of the dispute between the deceased and Matan Mahto. When we analyze this evidence, we find that this witness is absolutely unreliable witness and cannot be trusted. The reason for coming to such conclusion is that this witness has stated that 8 days prior to occurrence, this witness was informed by the deceased (his daughter) that she intended to purchase some land, which was the genesis of the dispute between Matan Mahto and his daughter. This fact is absolutely incorrect and a blatant lie as it is the constant prosecution case, that a day prior to the occurrence, the deceased along with her children had returned from Chapra after working in brickkiln. This P.W.3 himself has stated that since last 45 months, his daughter was residing in Chapra. If that be so, there was no occasion that the deceased had narrated the fact about her intention of purchasing a land and also about the dispute with Matan Mahto 8 days before the occurrence. Further this witness stated that he had seen the dead body of the deceased and has signed the inquest report, but surprisingly enough that 11 there is no inquest report in the record and the same has not been exhibited, which is apparent from the evidence of this witness itself as discussed above. This clearly goes to show that the prosecution has withheld the important document i.e. the inquest report. Thus on the aforesaid count, this witness is not a trustworthy witness. 17. The Doctor, who has conducted the postmortem, has opined that the dead body which was brought to him for conducting the postmortem was highly decomposed. The doctor has stated that major portion of the body was eaten away by animals, except small portion of the abdomen viscera. As per the Doctor, there was no evidence of any mechanical injury on the available portion of the body. As per the doctor, the head was present. Now the question is that who has identified the dead body. As per the postmortem report, the dead body was brought and identified by a Choukidar of the village. The said Choukidar was not produced as a witness. It is also surprising as to how, the Choukidar can identify a woman of the village. This fact creates a serious doubt about the identification of the dead body to the extent whether it was the body of the deceased Bandhan Devi or of someone else. P.W.4 Munni Kumari, the daughter of the deceased has stated that she had not gone to see the dead body of her mother. 18. In this case, the informant is not an eye witness rather, he narrates what was told to him by P.W.4Munni Kumari, who claims to be an eye witness of the occurrence. As per the information of P.W.5, he took Munni Kumari to the police station where the police heard her story and the fardbeyan was recorded and the same was signed. Thus from his evidence, we understand that the fardbeyan was recorded in the police station. P.W.4, Munni Kumari who is a child witness also stated that she went to police station where the fardbeyan was recorded. Surprisingly, when we go through the fardbeyan, we 12 find that the entire fardbeyan was recorded in the village at the place of occurrence and not at the police station and therefore, it is not clear as to where, the fardbeyan was recorded. The I.O. also is silent on this issue. 19. P.W.9 (Investigating Officer) has stated in his crossexamination that he heard rumour that a woman has been abducted from the village. In his evidence, the I.O. categorically in para 6 stated that he had not gone to the place of occurrence from where the dead body was recovered on 21.9.2001, but also deposed that he has prepared the inquest report and he had taken the signature of independent witnesses. This statement is highly contradictory. Further, the inquest report is not on record nor exhibited. He has also stated that he has not seized any apparels or cloths after the dead body was recovered and no seizure list was prepared. This clearly shows that the investigation is perfunctory in nature. 20. P.W.4: Munni Kumari, the daughter of the deceased, states that she had seen Matan Mahto and Budhwa and two other accused entering into her house through the roof and dragged away her mother. She had narrated the said story to the informant i.e. P.W.5 and as per the said narration, the fardbeyan was drawn up. In the fardbeyan, it has been stated that this witness could not identify the other two accused persons as they covered their faces by cloths. This witness while deposing in the Court, the named Choto and other accused persons, who had entered her house, but how she identified these two persons is a mystery unsolved. In her evidence, she has not stated as to how she later on identified Choto as one of the accused persons, when in the fardbeyan, Choto is not named and the other two persons could not be identified by her. This clearly suggests that some one must have put in her ear the name of Choto as one of the accused persons. Further she says that she went and narrated the story to the house of her maternal aunt and her 13 maternal aunt had taken her to the police station where she narrated the entire story. This statement is not correct. From the FIR and from the evidence of P.W.5 (informant) this fact is not supported. P.W.5 deposed that he had accompanied P.W. 4 to the police station. Further, the child witness (P.W.4) in her evidence had stated that she heard the sound of firing of gun at the time of occurrence, but this very important fact has not been mentioned in the fardbeyan, which as per the prosecution is based on the narration made by this witness to P.W.5. This witness has stated that she has also not seen the dead body of her mother. These statements clearly raise a doubt in the mind of this Court about the veracity of the testimony of the child witness. 21. Conviction can be sustained on the basis of the statement of a sole witness even if the such sole witness is a child, but the testimony of the said witness should be too strong so that no doubt can arise after evaluating her statement. If a slight doubt is created the minds of the court about the testimony of a sole eye witness, conviction cannot be based on such evidence. Moreover, the evidence of a child witness has to be dealt with very cautiously, and it should be beyond all doubt. 22. We find that there is an element of doubt in the statements given by child witness in court and there are discrepancies in her evidence thus her sole evidence cannot be a base for convincing the appellants. As stated earlier, other witnesses are not fully reliable in this case and even from the evidence of the Investigating Officer, we find that the investigation is absolutely perfunctory. Further, the dead body of the deceased was also not identified. 23. Thus, from the cumulative effect of what has been discussed above, we find that both appellants are entitled to get the benefit of doubt in this case. 14 24. In the result, this appeal is allowed by setting aside the judgment of conviction dated 15.01.2008 and order of sentence dated 18.01.2008 passed by the learned Additional Judicial Commissioner XVII th, Ranchi in Session Trial No. 234 of 2002 and the appellants Matan Mahto [appellant of Cr. Appeal No. 393 of 2008] and Choto Singh @ Chotnath Singh [appellant of Cr. Appeal (DB) No. 322 of 2008] are given the benefit of doubt. Both the appellants are acquitted of the charges. Both the appellants, who are also in custody, be released forthwith, if they are not wanted in any other case(s). 25. The Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment. (Ananda Sen, J.) H.C.Mishra, J. I agree (H.C. Mishra,J.) Jharkhand High Court, Ranchi. Dated: the 8th November, 2017. NAFR/Anu/cp.3.