Dhaneshwar Mahto and Anr. Vs. State of Jharkhand - Court Judgment

SooperKanoon Citationsooperkanoon.com/38808
CourtJharkhand High Court
Decided OnJan-15-2015
AppellantDhaneshwar Mahto and Anr.
RespondentState of Jharkhand
Excerpt:
1 in the high court of jharkhand at ranchi criminal appeal (d.b.) no. 991 of 2003 with criminal appeal (d.b.) no. 921 of 2003 ---- bahadur mahto son of bhoju mahto resident of village – piraguttu murupiri, p.s burmu district – ranchi appellant in cr.appeal no.991/2003 1. dhaneshwar mahto 2. lochan mahto, both sons of harihar mahto, residents of village – muripiri, p.s burmu, district - ranchi appellants in cr.appeal no.921/2003 versus the state of jharkhand respondent in both the cases ------ present hon’ble mr. justice virender singh, chief justice hon'ble mr. justice aparesh kumar singh ------ for the appellant : mr. r.p.gupta, advocate (in cr.appeal no.991/2003) for the appellants : m/s. ajit kumar, a.k.sahani, advocate (in cr.appeal no.921/2003) for the respondent-state : mr. s.s.choudhary, a.p.p. ------ per virender singh,c.j.bahadur mahto, dhaneshwar mahto and lochan mahto faced trial for the charge of section 302/34 ipc for allegedly causing death of phulu mahto on 25th march, 1999 at about 5.00 pm in village murupiri and stand convicted for the said charge, vide impugned judgment dated 30th june, 2003 of learned additional judicial commissioner ix, ranchi. they have been sentenced to undergo rigorous imprisonment for life. aggrieved of the said judgment, dhaneshwar mahto and lochan mahto had filed cr.appeal no.921/2003 and their co-convict, bahadur mahto, cr.appeal no.991/2003. we thus take up both the appeals together for their final consideration. 2 2. it needs to be mentioned here that one nirmal mahto, who is also shown to be an accused, could not be nabbed by the police, as such did not face the trial. bahadur mahto has already served his entire substantive sentence and released from jail on 27th june, 2014, as stated by mr.choudhary, learned app. appellants dhaneshwar mahto and lochan mahto were granted bail during the pendency of the instant appeal as their substantive sentence was suspended by this court. they are represented by mr.ajit kumar, advocate and mr.r.p.gupta, advocate, appears for convict bahadur mahto since released from jail (hereinafter all the three appellants to be referred to as accused only).3. mr.gupta appearing for accused bahadur mahto submits that although he has been released from jail after serving his entire substantive sentence but the case of the prosecution qua him is not proved to the hilt. he submitted that but for evidence of p.w.5 bhukhli devi, mother-in-law of the deceased, who claims her to be an eye-witness to the occurrence, no other prosecution witness proves the charge against him or for that matter against the remaining two accused namely dhaneshwar mahto and lochan mahto.4. learned counsel submitted that the prosecution made an attempt to introduce one p.w3tuniya devi, the real sister of the informant p.w bhukhli devi, as an eye-witness to the occurrence, but her evidence appears to be worth- rejection as the first informant p.w bhukhli devi does not whisper a word that she along with her sister (p.w tuniya devi) was coming from ramnavmi mela along with her son-in-law (phulu since deceased). learned counsel submitted that other witnesses including real brother of the deceased (p.w jagannath mahto) are the witnesses who subsequently learnt that the present three accused along with nirmal mahto (not arrested), the real brother of bahadur mahto, had assaulted phulu. 3 5. learned counsel submitted that even otherwise there is considerable delay in despatch of the special report to the elaka magistrate (chief judicial magistrate), who had received the copy of the first information report on 27.3.1999, whereas the f.i.r, according to the prosecution, was recorded on the same day in the concerned police station at 9.40 pm. learned counsel wanted to develop that the considerable delay in despatch of the special report to elaka magistrate gave a leverage to the prosecution to coin up a story of its own or chances of manufacturing the prosecution case of the choice of the complainant, could be ruled out. learned counsel submitted that may be in the present case the complainant side has made an attempt to project a strong motive for the accused to commit the murder of phulu but the said motive can also be considered as a good ground for false implication of the accused on account of considerable delay in sending the special report to elaka magistrate.6. learned counsel, while pointing out certain flaws in the investigation carried in this case, lastly submitted that the prosecution case, when scanned in its totality, would raise reasonable doubt about the entire prosecution case as set up, therefore all the three accused deserve acquittal.7. mr.ajit kumar, while dislodging the case of the prosecution qua accused dhaneshwar mahto and lochan mahto, submitted that both the accused have been booked in this case along with bahadur mahto on the allegation of catching hold of the deceased along with nirmal mahto, real brother of bahadur mahto, which evidence can be said to be inherently weak in its nature and normally brought forward for knitting a net wider to involve others at the choice of the complainant, especially when the police has sufficient time to construct a story. 4 8. in order to strengthen his submissions, mr.kumar has drawn the attention of the court to the statement of p.w bhukhli devi, wherein, in her cross- examination, she stated that in fact she did not know as to what was recorded by the police and the entire information was given to the police by other persons accompanying her. from this, learned counsel wants to develop that in this case, the prosecution story has been coined up by certain other persons who were interested in falsely implicating the present two accused who are real brothers. he thus prays for acquittal of both the accused.9. learned state counsel, however, has supported the impugned judgment against all the accused persons stating that there appears to be no reason for disbelieving at least p.w bhukhli devi, who has no axe to grind against any of the accused.10. having heard both the sides and rescanning the entire prosecution case once again in its right perspective, we are of the considered view that the prosecution has not been able to prove its case beyond any shadow of reasonable doubt against accused (appellants dhaneshwar mahto and lochan mahto in cr.appeal no.921/2003), whereas accused bahadur mahto, (appellant in cr.appeal no.991/2003), has no escape from the charge framed against him. we are conscious of the fact that all the accused are charged for the offence of section 302/34 ipc but it would not be unsafe to convict accused bahadur mahto for the charge under section 302 ipc substantively, the case of the prosecution having been proved to the hilt against him at least.11. the prosecution case is based on the statement of p.w bhukhli devi, wife of karua mahato, who alleged that on 25.3.1999 at about 5.00 pm, when she and her son-in-law, phulu mahto (deceased), were returning from ramnavmi mela to their house and when her son-in-law was at some distance from her, all 5 the three accused along with nirmal mahto, real brother of bahadur mahto, reached there. it is then alleged that dhaneshwar mahto, lochan mahto and nirmal maho caught hold of the deceased and accused bahadur mahto, who was armed with tangi (sharp cutting weapon like axe) assaulted the deceased. admittedly prosecution has not nabbed nirmal mahto. nirmal mahto and bahadur mahto are two real brothers whereas dhaneshwar mahto and lochan mahto are also two real brothers. allegation of catching hold of the deceased is attributed to all the accused including nirmal mahato except bahadur mahto, who allegedly caused injury on the person of the deceased after he was caught hold by the three accused. therefore, the case of nirmal mahto, real brother of bahadur mahto, is not distinguishable from dhaneshwar mahto and lochan mahto. it is one aspect we are keeping in our mind while appreciating the prosecution case.12. we now turn to the medical evidence available on trial court record. as per pw dr.tulsi mahto, who conducted the autopsy on the dead body of the deceased, found as many as three incised injuries on the person of the deceased which were caused by sharp cutting weapons and one of the injuries is on the right scapular region of the chest of the deceased. looking at the seat of the injuries on the person of the deceased, it appears to be highly improbable and artificial that three accused had caught hold of the deceased and thereafter bahadur mahto had given injuries on the different parts of the body of the deceased. this is another aspect of the prosecution case, which causes doubt in our mind vis-a-vis the role of the accused dhaneshwar mahto and lochan mahto.13. the third aspect is the delay in despatch of the special report to the elaka magistrate. it is well settled that the delay in despatch of the special report to the magistrate cannot be said to be fatal to the prosecution in all the cases and it depends upon the facts of each individual case. no doubt, mr.gupta appearing for 6 the accused bahadur mahto made an attempt to dislodge the prosecution case in its entirety stating that the complainant side had ample time to manufacture a story of its choice to implicate all the accused, but after rescanning the prosecution case in its entirety, we are of the considered view that on account of this delay in despatch of the special report to the magistrate, the prosecution case gets weak qua accused dhaneshwar mahto and lochan mahto and not qua accused bahadur mahto, the main assailant as there appears to be no reason for p.w bhukhli devi to falsely implicate bahadur mahto as the main accused in this case. no one would leave the real assailant, may be tendency to rope in others along with the main accused, is also there as commonly noticed by the court. presence of p.w bhukhli devi along with her son-in-law does not appear to be improbable at all. what is noticed in the villages is that male persons normally go together to the melas and the woman folk go separately but in the present case p.w bhukhli devi being widow went along with her son-in-law, who happened to be in the village. there appears to be nothing unusual in it. instantly the wife of the deceased was not accompanying the deceased to the mela and she was at her residence as is clear from her statement when she stepped into the witness box and stated that when she reached the spot, the accused were running away from the place of occurrence and then she learnt about the names of the assailants from her mother. this is again very natural.14. we are conscious of the fact that the prosecution introduced p.w tuniya devi, real sister of p.w bhukhli devi, as an eye-witness, which has also been believed by the learned trial court for holding the conviction of all three accused but in our considered view, this evidence, at least, cannot be given credence for a simple reason that her name does not figure in the first information report. it is not believable that if she was accompanying her real sister, (the first 7 informant), she would miss her name in the fir. we, thus, discard the statement of p.w tuniya devi as an eye-witness. despite that fact, we do not find any reason to at least dislodge the evidence of p.w bhukhli devi so far as accused bahadur mahto is concerned, he being the main assailant who was allegedly armed with tangi and caused many injuries on the person of the deceased. the case on hand, when tested on its own facts, cannot be said to be a case worth-rejection in its totality, simply on account of delay in despatch of the special report to the magistrate. however, false implication of accused dhaneshwar mahto and lochan mahto (two real brothers) with the allegation of catching hold on the deceased cannot be ruled out, when appreciated in the right perspective. the net result is that the prosecution has not been able to prove its case beyond any shadow of reasonable doubt qua accused dhaneshwar mahto and his real brother lochan mahto and could prove its case to the hilt against accused bahadur mahto, as such the conviction and sentence as already recorded by the trial court qua him deserve to be affirmed, whereas conviction and sentence of dhaneshwar mahto and lochan mahto deserve to be set aside. ordered accordingly.15. resultantly cr.appeal no.991/2003 filed by accused bahadur mahto is hereby dismissed, whereas cr.appeal no.921/2003 filed by the accused dhaneshwar mahto and lochan mahto is hereby allowed. both these appellants are stated to be on bail during the pendency of the appeal. they shall now be discharged of their bail bonds. (virender singh, c.j.) (aparesh kumar singh, j.) jharkhand high court, ranchi the 15th january, 2015 nafr/dey
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No. 991 of 2003 With Criminal Appeal (D.B.) No. 921 of 2003 ---- Bahadur Mahto son of Bhoju Mahto resident of village – Piraguttu Murupiri, P.S Burmu District – Ranchi Appellant In Cr.Appeal No.991/2003 1. Dhaneshwar Mahto 2. Lochan Mahto, both sons of Harihar Mahto, residents of village – Muripiri, P.S Burmu, District - Ranchi Appellants In Cr.Appeal No.921/2003 Versus The State of Jharkhand Respondent In Both the Cases ------ PRESENT HON’BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE APARESH KUMAR SINGH ------ For the Appellant : Mr. R.P.Gupta, Advocate (In Cr.Appeal No.991/2003) For the Appellants : M/s. Ajit Kumar, A.K.Sahani, Advocate (In Cr.Appeal No.921/2003) For the Respondent-State : Mr. S.S.Choudhary, A.P.P. ------ Per Virender Singh,C.J.

Bahadur Mahto, Dhaneshwar Mahto and Lochan Mahto faced trial for the charge of Section 302/34 IPC for allegedly causing death of Phulu Mahto on 25th March, 1999 at about 5.00 pm in village Murupiri and stand convicted for the said charge, vide impugned judgment dated 30th June, 2003 of learned Additional Judicial Commissioner IX, Ranchi. They have been sentenced to undergo rigorous imprisonment for life. Aggrieved of the said judgment, Dhaneshwar Mahto and Lochan Mahto had filed Cr.Appeal No.921/2003 and their co-convict, Bahadur Mahto, Cr.Appeal No.991/2003. We thus take up both the appeals together for their final consideration. 2 2. It needs to be mentioned here that one Nirmal Mahto, who is also shown to be an accused, could not be nabbed by the police, as such did not face the trial. Bahadur Mahto has already served his entire substantive sentence and released from jail on 27th June, 2014, as stated by Mr.Choudhary, learned APP. Appellants Dhaneshwar Mahto and Lochan Mahto were granted bail during the pendency of the instant appeal as their substantive sentence was suspended by this Court. They are represented by Mr.Ajit Kumar, Advocate and Mr.R.P.Gupta, Advocate, appears for convict Bahadur Mahto since released from jail (hereinafter all the three appellants to be referred to as accused only).

3. Mr.Gupta appearing for accused Bahadur Mahto submits that although he has been released from jail after serving his entire substantive sentence but the case of the prosecution qua him is not proved to the hilt. He submitted that but for evidence of P.W.5 Bhukhli Devi, mother-in-law of the deceased, who claims her to be an eye-witness to the occurrence, no other prosecution witness proves the charge against him or for that matter against the remaining two accused namely Dhaneshwar Mahto and Lochan Mahto.

4. Learned counsel submitted that the prosecution made an attempt to introduce one P.W3Tuniya Devi, the real sister of the informant P.W Bhukhli Devi, as an eye-witness to the occurrence, but her evidence appears to be worth- rejection as the first informant P.W Bhukhli Devi does not whisper a word that she along with her sister (P.W Tuniya Devi) was coming from Ramnavmi Mela along with her son-in-law (Phulu since deceased). Learned counsel submitted that other witnesses including real brother of the deceased (P.W Jagannath Mahto) are the witnesses who subsequently learnt that the present three accused along with Nirmal Mahto (not arrested), the real brother of Bahadur Mahto, had assaulted Phulu. 3 5. Learned counsel submitted that even otherwise there is considerable delay in despatch of the special report to the Elaka Magistrate (Chief Judicial Magistrate), who had received the copy of the first information report on 27.3.1999, whereas the F.I.R, according to the prosecution, was recorded on the same day in the concerned police station at 9.40 pm. Learned counsel wanted to develop that the considerable delay in despatch of the special report to Elaka Magistrate gave a leverage to the prosecution to coin up a story of its own or chances of manufacturing the prosecution case of the choice of the complainant, could be ruled out. Learned counsel submitted that may be in the present case the complainant side has made an attempt to project a strong motive for the accused to commit the murder of Phulu but the said motive can also be considered as a good ground for false implication of the accused on account of considerable delay in sending the special report to Elaka Magistrate.

6. Learned counsel, while pointing out certain flaws in the investigation carried in this case, lastly submitted that the prosecution case, when scanned in its totality, would raise reasonable doubt about the entire prosecution case as set up, therefore all the three accused deserve acquittal.

7. Mr.Ajit Kumar, while dislodging the case of the prosecution qua accused Dhaneshwar Mahto and Lochan Mahto, submitted that both the accused have been booked in this case along with Bahadur Mahto on the allegation of catching hold of the deceased along with Nirmal Mahto, real brother of Bahadur Mahto, which evidence can be said to be inherently weak in its nature and normally brought forward for knitting a net wider to involve others at the choice of the complainant, especially when the police has sufficient time to construct a story. 4 8. In order to strengthen his submissions, Mr.Kumar has drawn the attention of the Court to the statement of P.W Bhukhli Devi, wherein, in her cross- examination, she stated that in fact she did not know as to what was recorded by the police and the entire information was given to the police by other persons accompanying her. From this, learned counsel wants to develop that in this case, the prosecution story has been coined up by certain other persons who were interested in falsely implicating the present two accused who are real brothers. He thus prays for acquittal of both the accused.

9. Learned State Counsel, however, has supported the impugned judgment against all the accused persons stating that there appears to be no reason for disbelieving at least P.W Bhukhli Devi, who has no axe to grind against any of the accused.

10. Having heard both the sides and rescanning the entire prosecution case once again in its right perspective, we are of the considered view that the prosecution has not been able to prove its case beyond any shadow of reasonable doubt against accused (Appellants Dhaneshwar Mahto and Lochan Mahto in Cr.Appeal No.921/2003), whereas accused Bahadur Mahto, (Appellant in Cr.Appeal No.991/2003), has no escape from the charge framed against him. We are conscious of the fact that all the accused are charged for the offence of Section 302/34 IPC but it would not be unsafe to convict accused Bahadur Mahto for the charge under Section 302 IPC substantively, the case of the prosecution having been proved to the hilt against him at least.

11. The prosecution case is based on the statement of P.W Bhukhli Devi, wife of Karua Mahato, who alleged that on 25.3.1999 at about 5.00 pm, when she and her son-in-law, Phulu Mahto (deceased), were returning from Ramnavmi Mela to their house and when her son-in-law was at some distance from her, all 5 the three accused along with Nirmal Mahto, real brother of Bahadur Mahto, reached there. It is then alleged that Dhaneshwar Mahto, Lochan Mahto and Nirmal Maho caught hold of the deceased and accused Bahadur Mahto, who was armed with Tangi (sharp cutting weapon like axe) assaulted the deceased. Admittedly prosecution has not nabbed Nirmal Mahto. Nirmal Mahto and Bahadur Mahto are two real brothers whereas Dhaneshwar Mahto and Lochan Mahto are also two real brothers. Allegation of catching hold of the deceased is attributed to all the accused including Nirmal Mahato except Bahadur Mahto, who allegedly caused injury on the person of the deceased after he was caught hold by the three accused. Therefore, the case of Nirmal Mahto, real brother of Bahadur Mahto, is not distinguishable from Dhaneshwar Mahto and Lochan Mahto. It is one aspect we are keeping in our mind while appreciating the prosecution case.

12. We now turn to the medical evidence available on trial court record. As per PW Dr.Tulsi Mahto, who conducted the autopsy on the dead body of the deceased, found as many as three incised injuries on the person of the deceased which were caused by sharp cutting weapons and one of the injuries is on the right scapular region of the chest of the deceased. Looking at the seat of the injuries on the person of the deceased, it appears to be highly improbable and artificial that three accused had caught hold of the deceased and thereafter Bahadur Mahto had given injuries on the different parts of the body of the deceased. This is another aspect of the prosecution case, which causes doubt in our mind vis-a-vis the role of the accused Dhaneshwar Mahto and Lochan Mahto.

13. The third aspect is the delay in despatch of the special report to the Elaka Magistrate. It is well settled that the delay in despatch of the special report to the Magistrate cannot be said to be fatal to the prosecution in all the cases and it depends upon the facts of each individual case. No doubt, Mr.Gupta appearing for 6 the accused Bahadur Mahto made an attempt to dislodge the prosecution case in its entirety stating that the complainant side had ample time to manufacture a story of its choice to implicate all the accused, but after rescanning the prosecution case in its entirety, we are of the considered view that on account of this delay in despatch of the special report to the Magistrate, the prosecution case gets weak qua accused Dhaneshwar Mahto and Lochan Mahto and not qua accused Bahadur Mahto, the main assailant as there appears to be no reason for P.W Bhukhli Devi to falsely implicate Bahadur Mahto as the main accused in this case. No one would leave the real assailant, may be tendency to rope in others along with the main accused, is also there as commonly noticed by the court. Presence of P.W Bhukhli Devi along with her son-in-law does not appear to be improbable at all. What is noticed in the villages is that male persons normally go together to the Melas and the woman folk go separately but in the present case P.W Bhukhli Devi being widow went along with her son-in-law, who happened to be in the village. There appears to be nothing unusual in it. Instantly the wife of the deceased was not accompanying the deceased to the Mela and she was at her residence as is clear from her statement when she stepped into the witness box and stated that when she reached the spot, the accused were running away from the place of occurrence and then she learnt about the names of the assailants from her mother. This is again very natural.

14. We are conscious of the fact that the prosecution introduced P.W Tuniya Devi, real sister of P.W Bhukhli Devi, as an eye-witness, which has also been believed by the learned trial court for holding the conviction of all three accused but in our considered view, this evidence, at least, cannot be given credence for a simple reason that her name does not figure in the first information report. It is not believable that if she was accompanying her real sister, (the first 7 informant), she would miss her name in the FIR. We, thus, discard the statement of P.W Tuniya Devi as an eye-witness. Despite that fact, we do not find any reason to at least dislodge the evidence of P.W Bhukhli Devi so far as accused Bahadur Mahto is concerned, he being the main assailant who was allegedly armed with Tangi and caused many injuries on the person of the deceased. The case on hand, when tested on its own facts, cannot be said to be a case worth-rejection in its totality, simply on account of delay in despatch of the special report to the Magistrate. However, false implication of accused Dhaneshwar Mahto and Lochan Mahto (two real brothers) with the allegation of catching hold on the deceased cannot be ruled out, when appreciated in the right perspective. The net result is that the prosecution has not been able to prove its case beyond any shadow of reasonable doubt qua accused Dhaneshwar Mahto and his real brother Lochan Mahto and could prove its case to the hilt against accused Bahadur Mahto, as such the conviction and sentence as already recorded by the trial court qua him deserve to be affirmed, whereas conviction and sentence of Dhaneshwar Mahto and Lochan Mahto deserve to be set aside. Ordered accordingly.

15. Resultantly Cr.Appeal No.991/2003 filed by accused Bahadur Mahto is hereby dismissed, whereas Cr.Appeal No.921/2003 filed by the accused Dhaneshwar Mahto and Lochan Mahto is hereby allowed. Both these appellants are stated to be on bail during the pendency of the appeal. They shall now be discharged of their bail bonds. (Virender Singh, C.J.) (Aparesh Kumar Singh, J.) JHARKHAND HIGH COURT, RANCHI The 15th January, 2015 NAFR/dey