Judgment:
Criminal Appeal (D.B.) No. 397 of 2005 with Criminal Appeal (D.B.) No. 154 of 2005 with Criminal Appeal (D.B.) No. 155 of 2005 Against the Judgment of conviction and order of sentence dated 19/01/2005 and 20/01/2005, respectively passed by Sri Ram Naresh Mishra, Additional Judicial Commissioner, F.T.C.-X, Ranchi, in Sessions Trial No. 406 of 1988. Tetalal Mahto, S/o Late Jhari Mahto, R/o Village Murgi, PS Burmu, District Ranchi…………… Appellant (In Cr. Appl. 397/05) Ganesh Mahto @ Charka, S/o Late Jhari Mahto, R/o Village Murgi, PS Burmu, District Ranchi……… Appellant (In Cr. Appl. 154/05) Harinandan Mahto, S/o Late Futan Mahto, R/o Village Murgi, PS Burmu, District Ranchi…………… Appellant (In Cr. Appl. 155/05) Versus The State of Jharkhand ………………Respondent (In all the appeals) ..… For the Appellant : Miss. Vipul Divya, A.C. (In Cr. Appl. 397/05) For the State : M/s. Amaresh Kumar, Ravi Prakash, APPs …… P R E S E N T The Hon’ble Mr. Justice R.R.Prasad The Hon'ble Mr. Justice Pramath Patnaik J U D G M E N T By Court: All these three appeals, arising out of the same case, were heard together and are being disposed of by the common judgment. 2. These appeals are directed against the judgment of conviction dated 19/01/2005 and order of sentence dated 20/01/2005, passed by the Additional Judicial Commissionercum F.T.C.X, Ranchi in Sessions Trial No. 406 of 1988, whereby and whereunder the Court having found the appellants Harinandan Mahto ( Cr. Appl. No. 155 of 05) and Tetalal Mahto (Cr. Appl No. 397/05) guilty for committing murder of Bishun Oraon and also for causing disappearance of the evidence of the murder, convicted them for the offence punishable under Sections 302/34 & 201/34 of the Indian Penal Code, and further, the appellant Ganesh Mahto @ Charka (Cr. Appl No. 154/05) was convicted for the offence punishable under Section 201/34 of the Indian Penal Code. The appellants Harinandan Manto and Tatalal Mahto were sentenced to undergo R.I. for life for the offence under Section 302/34 of the Indian Penal Code. Further, those two appellants alongwith appellant Ganesh Mahto @ Charka were sentenced to undergo R.I. for seven years and to pay a fine of Rs. 2000/ for the offence punishable under Section 201/34 of the Indian Penal Code. Both the sentences were directed to run concurrently.
3. The case of the prosecution, as has been made out by the informant Magan Oraon (not examined), in his fardbeyan, is that on 25/08/1981, while he was returning home, he came across with Bishun Oraon (deceased) at Village Chaya. Both were the forest guards. On coming across with Bishun Oraon, the informant Magan Oraon asked him as to where is he going. Upon it, Bishun Oraon (deceased) replied that he will return home after sometime. On the next day, i.e. 26/08/1981, when the informant did not find Bishun Oraon at his house, he started searching him. In that course, he came to Village Chaya and made inquiry from several persons, but he did not get any clue from them. Thereupon, he came to Village Murgi at the house of Harinandan Mahto (appellant in Cr. Appl. No. 155/05). There the wife of Harinandan Mahto disclosed to him that Bishun Oraon had been to her house in the last evening and she had served rice as well as liquor to him. Thereupon, the informant returned home. At about 10.00 A.M, he alongwith Mangra Munda again started searching him. In that course, he made inquiry from the sons of Ex. V.L.W. of Village Murgi, who disclosed that on 25/08/1981 at about 6.30 P.M in the evening they had seen the deceased to whom they had asked as to where is he going. At that time they had also seen 34 persons standing there to whom they, on account of darkness, could not identify. Thereupon, the informant gave such information in the office. On 28/08/1981, at about 08.00 A.M, he came to know from Ranthu Oraon that a dead body is floating in a well at Village Murgi belonging to one Jitu Mahto. He went there and found the dead body of the deceased Bishun Oraon in the well. On that day, i.e. 28/08/1981, he did not inform to the police, rather on the next day, i.e. 29/08/1981, when information was given to the police, his statement was recorded by one D.N.Singh, ASI of Burmu Police Station. On the basis of which a formal FIR was drawn.
4. The matter was taken up for investigation by the Investigating Officer, who has not been examined by the prosecution in this case. However, it appears that the dead body was sent for Post Mortem examination on 30/08/1981, which was conducted by the Dr. R.S.Prasad (PW6). On holding autopsy, the Doctor did find as follows: “Decomposition was in progress, bloating of entire body, Protrusion of tongue and megot infestation. Cranium and Spinal Canal and thorax did not show any abnormality. 75 grams of rice was present in the stomach and urinary bladder was empty. Wounds, sign of suffocation, pressure over the neck and chest were not present. According to the Doctor, cause of death could not be ascertained.” The Doctor issued Post Mortem examination report, which has been proved and marked as Ext.2.
5. Meanwhile, the Investigating Officer seems to have recorded the statements of the witnesses. On completion of the investigation, the police submitted charge sheet, upon which cognizance of the offence was taken against the appellants and the case was committed to the Court of Sessions.
6. When the appellants were put on trial, the prosecution examined altogether 6 witnesses; of them PW1 Thuppa Gonjhu is the eyewitness, who has testified that on 25/08/1981, he had come to the house of appellant Harinandan Mahto for taking his bullocks back to his house. While he was waiting for his bullocks to return from the field, he saw Bishun Oraon (the deceased) entering into the house of Harinandan Mahto. He was followed by the appellant Tetalal Mahto. After sometime, when he heard the sound of beating of someone, he thought that Harinandan might have been assaulting his wife. When he entered into the house of Harinandan, he found the appellant Harinandan catching the deceased by his neck and was assaulting with fists. Meanwhile, the appellant Tetalal Mahto assaulted with 'Kathfara' (a kind of Tangi, a sharp cutting weapon). After seeing all these, when he was about to leave the house of Harinandan, he was caught hold by the appellant Tetalal, who threatened him not to leave the house. He, after putting him in the custody of Harinandan, went away and after a while he brought the appellant Ganesh Mahto @ Charka as well as Sukra Oraon (PW4) with him. All of them were asked to dispose of the dead body of Bishun Oraon. Initially, they declined to do so but upon insistence being made, all of them, i.e. appellants Harinandan Mahto, Tetalal Mahto. Ganesh Mahto @ Charka and Sukra Oraon (PW4), took the dead body of the deceased and put it into a well belonging to Jitu Mahto. PW2 Vishwanath Oraon and PW3 Santosh Oraon have been tendered for crossexamination. PW4 Sukra Oraon has testified that while he was sleeping in his house, appellant Tetalal Mahto came to his house and made him wakeup and then brought to the house of the appellant Harinandan Mahto, where he was asked to dispose of the dead body of Bishun Oraon and, thereupon he, appellants Tetalal Mahto, Harinandan Mahto, Ganesh Mahto @ Charka took the dead body to the well, belonging to Jitu Mahto and put it into the well. PW5 Umeshwar Singh is the formal witness, who has proved the 164 statements of PW4 and PW1, as Ext.1 and Ext. 1/1 respectively.
7. Upon closure of the prosecution case when the appellants were questioned about the incriminating materials appearing against them under Section 313 Cr.P.C., they denied it.
8. Thereupon, the Court having found PW1 Thuppa Gonjhu and PW4 Sukra Oraon to be trustworthy, did find the appellants guilty and, thereby, recorded the order of conviction and sentence as aforesaid. Being aggrieved with the said judgment of conviction and order of sentence, all these appeals have been preferred. 9. Ms. Vipul Divya, learned counsel appointed as Amicus Curiae in Cr. Appeal (DB) No. 397 of 2005, submits that admittedly, the occurrence took place on 25/08/1981 in the evening, whereas the dead body is said to have been recovered on 28/08/1981 and the information of the occurrence was given on 29/08/1981 by the informant Magan Oraon, who has not been examined. The informant had not raised any suspicion against any of the accused persons and, therefore, the case had been registered against unknown, but in course of investigation the name of appellant Tetalal Oraon and also the other appellants got transpired, on the basis of the statements made by PWs 1 & 4, wherein PW1 Thuppa Gonjhu claimed himself to be the witness of the entire occurrence, but his presence at the house of the appellant Harinandan Mahto is belied by the evidence of PW4 Sukra Oraon, who did not speak a single word about the presence of Thuppa Oraon at the time of occurrence in the house of Harinandan Mahto and, thereby, PW1 never appears to be a trustworthy witness. Further, conduct of this witness is as such that his testimony is not worth reliable nor the testimony of PW1 is worth reliable for simple reason that they never informed either to police or to the villagers about the occurrence though they had claimed to have seen the occurrence in the evening of 25/08/1981 and under the circumstances, the Court should not have relied upon the testimony of those witnesses, rather their testimony should have been rejected. But, in stead of rejecting their testimonies, the Court below has relied upon their testimonies and, thereby, it committed wrong in convicting the appellants. 10. As against this, Mr. Ravi Prakash, learned counsel appearing for the State submits that PW1 happens to be a natural witness and, therefore, his testimony is worth reliable. At the same time, part of the testimony of PW1 gets corroboration from the evidence of PW4 Sukra Oraon and under the circumstances, the trial court has not committed any illegality in recording the order of conviction and sentence against the appellants. 11. Having heard counsel appearing for the parties and on perusal of the records, we do find that the informant had lastly met the deceased Bishun Oraon in the evening of 25/08/1981 in a drunken state. When he did not find him present in his house, the informant started searching him. During course of search, he could find clue that in the evening the deceased had come to the house of Harinandan where the wife of Harinandan had served him food and drink. Ultimately, on 28/08/1981, the dead body of the deceased was found floating in the well of Jitu Mahto. Upon recovery of the dead body, information was given to the police by the informant on 29/08/1981. Till that date, PW1 Thuppa Gonjhu, who had claimed to have seen the appellants Harinandan Mahto and Tetalal Mahto assaulting the deceased at the house of Harinandan, had never given any information either to police or to the villagers. On account of nonexamination of the Investigating Officer, it is also not known when PW 1 made statement to the effect that he had seen the appellants assaulting the deceased and, thereby, the conduct of PW1 is as such which creats doubt over his testimony. Furthermore, it be recorded that PW1 has testified that when he entered into the house of Harinandan, he saw the appellant Harinandan catching the deceased by his neck and also saw the appellant Tetalal Mahto assaulting the deceased with Kathfara (a type of Tangi), but the Doctor (PW6) did not find any injury on the person of the deceased nor did find sign of strangulation or pressure being exerted on the neck. Thus, the medical evidence belies the testimony of PW1. Furthermore, PW4 Sukra Oraon, in his evidence, never says that he did find PW1 Thuppa Gonjhu in the house of the appellant Harinandan when he was taken by the appellant Tetalal to the house of Harinandan. This is an additional ground for disbelieving the testimony of PW1.
12. Similarly, PW4, who had claimed to have disposed of the dead body at the pressure exerted by the appellants, did not inform anybody either to the police or the villagers and, therefore, his testimony is also not worth reliable. Under the circumstances, the testimonies of both the witnesses, i.e PW1 and PW4, are hereby rejected 13. In spite of all these facts, being present in the case the trial court, without considering it, recorded the order of conviction and sentence and, thereby, he committed illegality by passing the impugned judgment, which is hereby set aside. Consequently, all the appellants, named above, are acquitted of all the charges. Appellants Harinandan Mahto and Ganesh Mahto @ Charka, who are on bail, are discharged from the liabilities of their bail bonds. The appellant Tetalal Mahto, who is in custody, is directed to be released forthwith if not wanted in any other case. Thus, all these appeals stand allowed. (R.R.Prasad, J) (Pramath Patnaik, J) Jharkhand High Court, Ranchi Dated the 13th May, 2015 NAFR/Mukund/cp. 3