State of Jharkhand Vs. Raman Mahto - Court Judgment

Deoki Nandan Prasad, J.

1. All the four appeals along with Death Reference have been heard together and are being disposed off by this common judgment as they are arisen out of the same judgment passed by the 1st Additional Sessions Judge, Latehar in Sessions Trial No. 7 of 1994, whereby and whereunder, the learned Additional Sessions Judge convicted the appellants Ramana Mahto and Kunjal Ganjhu for the offence under Sections 148, 307, 302 and 149 of the Indian Penal Code, whereas the other appellants, namely, Natwa Ganjhu, Butan Mahto and Bisna Ganjhu have been convicted under Sections 148, 307 and 149 of the Indian Penal Code. Appellants Butan Mahto, Natwa Ganjhu and Bisna Ganjhu have been sentenced to undergo rigorous imprisonment for five years each and a fine of Rs. 500/- each under Sections 307 and 149 of the Indian Penal Code, whereas appellant Kunjal Ganjhu has been sentenced to undergo rigorous imprisonment for life and a fine of Rs. 1,000/- under Section 302 of the Indian Penal Code. He was further sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 500/- under Sections 307 and 149 of the Indian Penal Code and in default of payment of fine, the appellant was further directed to undergo rigorous imprisonment for six months each; whereas the appellant Ramana Mahto was sentenced with death punishment under Section 302 of the Indian Penal Code and he was further sentenced to undergo rigorous imprison-merit for five years and a fine of Rs. 1000/-under Sections 307 and 149 of the Indian Penal Code. However, no separate sentence was passed against this appellant under Section 148 of the Indian Death Reference No. 3 of 2003 has been made on the basis of the letter addressed to the Registrar General of the High Court of Jharkhand at Ranchi by the learned trial Court for confirmation of the death sentence.

2. The case of the prosecution as alleged is that on 7.8.1992 at about 7 a.m. in the morning one Akhtar Ansari along with his brother Amanat Ali and their father Abid Ansari claimed to have gone to their paddy field situated at a distance of five yards from their house. His brother Amanat Ali was ploughing the land and he along with his father was working in the said paddy field. In the meanwhile, all the accused persons including others having armed with deadly weapons like gun, tangi, farsa etc., came to their paddy field and started firing with their guns. It is alleged that accused Kunjal Ganjhu and Jhalua Ganjhu started firing indiscriminately. Kunjal Ganjhu fired shot from his gun to his father, as a result of which, his father fell down and thereafter accused Ramna Mahto assaulted with his dabia and cut his neck and, as such, his father died instantaneously in the field. It is further alleged that accused Jhalua Ganjhu fired shot on his brother causing injury as his brother is admitted in the hospital. By seeing brutal murder of his father, the informant fled away out of fear. The reason behind the occurrence is that the accused persons used to graze their land and for which there was quarrel between them.

3. The police investigated into the case and submitted charge-sheet after finding prima facie case. The appellants appeared before the Additional Sessions Judge during trial. Charge was framed against all the appellants. Witnesses were also examined during trial. After hearing both sides and on perusal of the evidence on record, the learned trial Court convicted and sentenced the appellants in the manner as stated above.

4. The prosecution has come with an allegation specifically that all the appellants including others having armed with deadly weapons such as Gun, kulhari, farsa etc., came to the field of the informant where he along with his brother, and father were working in the field and the appellants started firing. It is also specifically alleged that the appellant Kunjal Ganjhu fired shot with his gun causing injury to the father of the informant, as a result of which, his father fell down and thereafter appellant Ramna Mahto chopped off his head by dabia blow on the neck. It is also alleged that his brother also sustained injury as he was injured by fire arm by accused Jhalua Ganjhu. The motive behind the occurrence is said to be the previous enmity on account of grazing the field of the informant by the accused persons. It may be noted here that Ramna Mahto also preferred appeal from Jail numbering Jail Appeal No. 512 of 2003. The injury report (Ext. 3} has been filed on behalf of the prosecution in respect of the injury caused on the person of Amanat Ali, the brother of the informant. There is allegation that accused Jhalua Ganjhu caused fire shot sustaining injury to him but it may be mentioned here that accused Jhalua Ganjhu has not faced trial before the trial Court as he has already died as shown in the charge-sheet and the injury Amanat Ali has not been examined by the prosecution.

5. Altogether four witnesses have been examined on behalf of the prosecution in support of its case. Of whom PW 3 is the doctor who had examined Amanat Ali, the brother of the informant and found the following injuries :--

'1. Two circular lacerated wound Blackening around the margin 2 cm. in diameter below the right genital region Dangerous Fire arms 2-4 hours (wound of entrance).

2. Circular lacerated wound 2 cm. in diameter over interior compartment of right thigh Dangerous Fire arms 2-4 hours (wound of exit).

3. One circular lacerated wound 2 cm. in diameter over the medial side of the right thigh Dangerous Fire arms 2-4 hours (wound of exit).

Note.--A piece of pillet is extracted from the wound after seeing in X-ray ' film.'

6. PW 4 is a formal witness. PW 1 is the informant who stated that his brother Amanat Ali on the day of occurrence was ploughing his field when the accused Gani Ganjhu, Kunjal Ganjhu and Jhalua having gun in their hands, accused Nato Ganjhu and Laldhari Mahto having tangi in their hands and accused Butan Mahto having farsa whereas accused Ramana Mahto, Bishna Ganjhu and Bisna Ganjhu having dabia in their hands came there. Accused Kunjal Ganjhu and Jhalua Ganjhu started firing indiscriminately. Accused Kunjal Ganjhu fired shot on his father whereas accused Jhalua Ganjhu fired short on his brother Amanat Ali and thereafter his father sustained injury and fell down and then accused Ramana Mahto cut his neck with dabia. He further stated that his brother had gone to the police station. The police has also reached to the place of occurrence where he narrated the incident and gave his fardbeyan (Ext. 1). It is alleged that accused Kunjal Ganjhu used to graze their lands and due to which there was a dispute between the parties. According to him, accused Gani Ganjhu also died. He stated in his cross-examination that the field, which is the place of occurrence, is situated at a distance of 400 yards from his house. He further deposed that there was no any labourer working in his field at the relevant time as well as there was no other villager present at the place of occurrence. He further stated in his cross-examination that none of the accused tried to assault him.

7. PW 2 is the mother of the informant. She stated that she was at her house at the relevant time and she heard the sound of firing. Thereafter she went to the field and she had seen the accused persons armed with deadly weapons such as gun, tangi, dabia etc., and she found her husband dead at the place of occurrence. His neck was cut and there was also injury of gun shot on his shoulder, whereas her son Amanat sustained gun shot injury on his right thigh. She further deposed that her son Akhtar (the informant) disclosed to her that accused Kunjal fired gun shot on her husband and after falling down, accused Rainan cut his neck from dabia. She has also narrated that accused Jhalua fired shot causing injury to Amanat, She also deposed that the place of occurrence is situated at a distance of 400 yards from her house. According to her, none of the villagers was present at the place of occurrence at that time.

8. One doctor who held post-mortem on the dead body of Abid Ali has been examined as Court witness and found the following ante mortem injuries on his person :--

1. Autero posterior mid scalp incised wound 4' x 1' x 1-1/2' damaging skull membrane of brain matter. The injuries caused reasonably by sharp cutting heavy weapon like kul-hari/farsa.

2. Two penetrating adjoining wounds over right shoulder 1' x 1' x 3' and 1' x 1' x 1' caused by sharp penetrating weapon.

3. Penetrating wound over right side of chest 1' x 1/2' x 1/2' caused by sharp pointed weapon.

4. Penetrating wound on right scapular region 1' x 1/2' x 1/2' sharp pointed weapon.

5. Two horizontal penetrating wounds over right lumber region 1' x 1' x 1 /2' each by sharp pointed weapon.

6. Neck of the individual was cut from above downward on right side it cut skin muscles and tracia, lower blood vessels and vertebra column of muscle leaving only a log of skin and left neck muscle has become cut at least three strokes with sharp cut heavy weapon.

In the opinion of the doctor, the cause of death was due to shock and haemorrhage because of the above noted injuries.'

According to him, the possibility of causing injury No. 2 by firearm cannot be ruled out. But at the same time he admitted in his cross-examination that he is unable to say definitely that injury No. 2 was caused by firearm. No any witness has been examined thereafter. The accused persons were examined under Section 313 of the Code of Criminal Procedure and they have denied the allegation.

9. PW 1, who is the informant, is an eye-witness as he had been at the place of occurrence at the relevant time. He lodged the first information report and recorded his fardbeyan. There is specific and direct allegation against the appellant Raman Mahto for causing dabia blow on the neck of Abid Ansari, father of the informant and severed his neck. The said statement/allegation made in the fardbeyan by an eyewitness has duly been corroborated by the medical evidence as well, as the doctor, who conducted autopsy on the dead body of the deceased Abid Ansari found injury No. 1 causing by sharp cutting weapon and injury No. 5 is indicating that his neck was severed by causing blow with sharp cut heavy weapon.

10. PW 2, the mother of the informant, who claimed to have reached to the place of occurrence, had also seen the dead body of her husband at the place of occurrence in cutting of the neck. It is true that she is not an eye-witness of the occurrence but there is no doubt that the dead body was lying there and she reached to the spot just after the occurrence and found her husband dead by the said injury.

11. PW 3 is the another doctor who claimed to have examined the brother of the informant, namely, Amanat Ali and found as many as three injuries on his person caused by firearm. It is true that Amanat Ali was assaulted by accused one Jhalua Ganjhu by his gun who is dead that will be evident from the charge-sheet itself.

12. There is allegation against the appellant Kunjal Ganjhu that he fired shot by his gun causing injury to Abid Ansari who fell down. PW 1, an eye-witness, deposed that Kunjal Ganjhu fired shot with his gun causing injury on the person of his father Abid Ansari, who fell down, but obviously that allegation becomes very doubtful in view of the fact that the doctor opined injury No. 2 being penetrating wound causing by sharp penetrating weapon, though he stated that the possibility of causing such injury by firearm cannot be ruled out, but again he admitted that he is unable to say definitely that injury No. 2 was caused by firearm. He further admitted by deposing that he did not find any foreign material in the dead body indicating clearly that injury No. 2 cannot be said affirmatively/definitely that said injury No. 2 was caused by firearm. From perusal of the post mortem report, it is evident that the doctor opined for the said injuries caused by sharp pointed weapon. He has no where said or mentioned in the post mortem report about the firearm. According to the doctor, the cause of death was due to haemorrhage or shock, as a result of the above injuries and the doctor had shown in his post mortem report about all injuries caused by sharp pointed weapon and no where he mentioned about firearm injury. Thus there is no corroboration of the evidence of PW 1 as regards to the allegation against Kunjal Ganjhu for causing fire shot, as the doctor did not find definitely any injury by firearm on the person of the deceased. Thus the allegation for causing firearm injury by Kunjal Ganjhu becomes falsified.

13. There is allegation against Nato Ganjhu, Butan Mahto and Bishna Ganjhu for attempting to commit murder after forming unlawful assembly and having deadly weapons. On bare reading of the/ordbeyon, which was recorded at the first opportunity of time by the informant, it is alleged that these appellants along with other accused persons having armed with tangi, farsa had reached to the place of occurrence, but obviously there is no whisper against these appellants for committing overt act in any manner. PW 1 simply said they had come with tangi, farso and dabia at the relevant time but he has said nothing about committing overt act by these appellants or using the said weapon in any way during the occurrence. No any other witness being eye-witness has come forward to say about the act of commission of these appellants at the relevant time. I have already stated above that PW 2, mother of the informant, is not an eye-witness.

14. For constituting the offence under Section 149 of the Indian Penal Code, two ingredients are required essentially :--

'(1) Commission of an offence by any member of an unlawful assembly;

(2) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as members of that assembly knew to be likely, to be committed.'

15. In the instant case, it is true that the offence was committed by the accused but there is no cogent or definite evidence coming forward to show or establish that these accused, said to be the members of the said unlawful assembly, were knowing that the said offence is likely to be committed. There is no. evidence to indicate that they had prior meeting or plan for committing such offence. Nothing has been adduced by the prosecution that these members/accused had common object for committing such offence. The question as to what was the common object of the assembly is essentially a question of fact, which has to be determined on the facts and circumstances of each case. It has been observed in the case that a mere innocent person in an assembly of persons, would not make the accused a member of an unlawful assembly unless it was shown by direct or circumstantial evidence that the accused shared the common object of the assembly. It is essential to prove that a person sought to be charged with an offence by the aid of this section was a member of the unlawful assembly at the time the offence was committed and the burden of proof lies on the prosecution where no overt act was attributed to the accused. The mere fact that the appellant was armed with lathi or other weapon could not itself be proved that they shared the common object with which the main accused was conspired.

16. It is significant to note here that the trial Court has not framed any charge against the appellant Kunjal Ganjhu for the offence under Section 27 of the Arms Act. There is no iota of evidence against the above three appellants, namely, Nato Ganjhu, Butan Mahto and Bishna Ganjhu that they had committed any overt act at the time of occurrence and the evidence of PW 1 on this score has also not been corroborated by any other evidence. In this respect, I may mentioned here that the injured Amanat Ali, elder brother of the informant, has not come forward and examined by the prosecution to substantiate/corroborate such story of the prosecution, who can be said to be a material/important witness on this score.

17. The learned counsel appearing on behalf of the accused/appellant Raman Mahto submitted that though there is allegation against him for causing dabia blow on the neck of the deceased, but the trial Court exceeded his jurisdiction and awarded capital punishment to him when the instant case cannot be said to be rarest of rare case. It is further argued that Amanat Ali, who is said to have sustained gun shot injury at the relevant time, has not been examined by the prosecution and, as such, the whole prosecution Case becomes doubtful. It is further argued that the witnesses deposed that Amanat Ali, after being injured went to the police station and thereafter he rushed to the hospital for treatment, but the statement recorded by Amanat Ali in the Police Station has not been brought on the record which also makes the whole prosecution case doubtful. The learned counsel appearing on behalf of the appellant Kunjal Ganjhu submitted that though there is allegation against him for causing injury by firearm, which has not been supported by the Medical evidence as well as the evidence of PW 1 has not been corroborated by any other witness, even the injured Amanat Ali has not come forward to establish the allegation as made out in the fardbeyan. It is further argued that non-examination of the Investigating Officer caused great prejudice to the case of the accused persons as the Investigating Officer was the material witness in this case and, as such, the defence has been deprived of drawing out important material from the Investigating Officer resulting and causing prejudice to the case of defence/accused. It is further argued that the first information report has been lodged after much delay of the occurrence and the trial Court committed error in convicting the appellants by impugned judgment.

18. The learned counsel appearing on behalf of the appellants also relied upon the cases of Bantu alias Naresh Giri v. State of Madhya Pradesh, AIR 2002 SC 70; Ram Gulam Choudhary and Ors. v. State of Bihar, AIR 2001 SC 2842 : 2001 (3) East Cr C 290; Machhi Slngh and Anr. v. State of Punjab, AIR 1983 SC 957 and State of Haryana v. Ram Singh, AIR 2002 SC 620 : 2002 (1) East Cr C 430 (SC).

19. According to the allegation, as made out in the fardbeyan, the appellant Kunjal Ganjhu fired shot to Abid Ansari, father of the informant. PW 1 stated in his evidence that Kunjal Ganjhu fired short causing injury by his gun but the doctor who held post mortem did not find a single injury of firearm and he answered about injury No. 2 in flinching way that possibility of causing by firearm cannot be ruled out. At the same time he admitted in clear terms that he is unable to say definitely that injury No. 2 was caused by firearm. Further more, he admitted that he did not find any foreign material on the dead body. No any other witness corroborated the testimony of PW 1 as regards to the allegation of injury caused by firearm by accused Kunjal Ganjhu. It has already been discussed above that Amanat Ali, brother of the informant, said to be an eye-witness of the occurrence, sustained firearm injury at the relevant time, has not been examined by the prosecution to corroborate such allegation as made by PW 1 against Kunjal Ganjhu. The enmity is also admitted between the parties from before and, therefore, his false implication cannot be ruled out. The allegation made against Kunjal Ganjhu for firing does not find support from the medical evidence nor the evidence of PW 1 on this point has been corroborated by any other cogent oral evidence. Moreover there is no allegation against Kunjal Ganjhu for causing injuries by his gun to Amanat Ali rather one Jhalua Ganjhu has been charged for causing firearm injuries to Amanat Ali. Admittedly Jhalua Ganjhu is dead. Thus the Sessions Judge failed to take into account the oral and medical evidence meticulously as against Kunjal Ganjhu whose conviction cannot be sustained in the eye of law.

20. PW 2, the mother of the informant, is admittedly not an eye-witness and whatever she narrated in her evidence, it was disclosed by the informant. The Investigating Officer has not been examined by the prosecution resulting and causing prejudice to the case of the defence as regards to the allegation made as against the appellant Kunjal Ganjhu and other three appellants, namely, Nato Ganjhu, Butan Mahto and Bishna Ganjhu. The appellants Nato Ganjhu, Butan Mahto and Bishna Ganjhu have been charged and convicted for the offence under Sections 307/149 of the Indian Penal Code, but surprisingly enough to note that no any other witness corroborated this allegation that they were holding weapons and they had formed unlawful assembly having common object to commit murder. None of the independent witnesses has come forward to support the allegation against these appellants and, therefore, the entire allegation made against the appellants Kunjal Ganjhu, Nato Ganjhu, Butan Mahto and Bishna Ganjhu are suspicious and doubtful and for which, they are entitled for the benefit of doubts.

21. In view of the above facts and circumstances of the case, I find that the prosecution has totally failed to establish the charges levelled against appellant Kunjal Ganjhu (in Criminal Appeal No. 534 of 2003) and appellants Nato Ganjhu, Butan Mahto and Bishna Ganjhu (in Criminal Appeal No. 526 of 2003) beyond all reasonable doubts as required under law.

22. In the result, Criminal Appeal No. 534 of 2003 and Criminal Appeal No. 526 of 2003 are allowed. The judgment of conviction and order of sentence passed against the appellant Kunjal Ganjhu (in Criminal Appeal No. 534 of 2003) and appellants Nato Ganjhu, Butan Mahto and Bishna Ganjhu (in Criminal Appeal No. 526 of 2003) are set aside. They are acquitted from the charges levelled against them. Appellant Kunjal Ganjhu is in jail custody. Hence, he shall be set at liberty forthwith if not wanted in any other case. Other three appellants are on bail. Hence, they are discharged from the liabilities of their bail bonds.

23. So far the appellant Ramna Mahto is concerned, there is specific arid direct allegation against him for causing dabia blow on the neck of the deceased resulting his death. PW 1, an eye-witness, is very consistent on this point and, according to him, the appellant Ramna Mahto gave dabia blow on the neck of his father Abid Ansari. The doctor, who conducted autopsy, also corroborated this allegation as he found injury Nos. 1 and 5 caused by sharp cut heavy weapon and he also found the neck severed from the body. Therefore, the evidence/allegation as made against Ramna Mahto for causing dabia blow on the neck of the deceased has fully been corroborated by the medical evidence and it has been established and, as such, it can safely be concluded that the injury was caused by appellant Ramna Mahto at the time of occurrence, and for which the prosecution has established its case against Raman Mahto altos Ramana Mahto beyond all reasonable doubts and he has rightly been convicted for the offence under Section 302 and other offences of the Indian Penal Code.

24. The trial Court awarded death sentence under Section 302 of the Indian Penal Code but it is well settled that life imprisonment is the rule and death sentence is an exception, which can only be awarded in the rarest of rare case. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting the death penalty, the circumstances of the offence also required to be taken into consideration along with the circumstances of crime. In other words, death sentence must be imposed only when life imprisonment appears to be inadequate punishment having regard to the relevant circumstances of the crime. In imposing of sentence, mitigating circumstances had to be accorded full weightage. In the present case, there is allegation against the appellant Ramna Mahto for causing dabia blow on the neck, but admittedly, the deceased sustained other injuries also at the relevant time. There is also nothing on the record to indicate that this appellant was having any criminal record. Thus it cannot be said that it is the rarest of rare cases where this appellant requires to be eliminated from the, society. Hence, in my view, there is no justifiable, reason to impose death sentence to appellant Ramna Mahto alias Ramana Mahto.

25. In the result, I confirm the conviction of this appellant under Section 302 of the Indian Penal Code but modify the sentence by commuting the sentence of death to imprisonment for life. Order of sentence under other offences remains intact.

26. With the above modification in sentence, Jail Appeal No. 512 of 2003 and Criminal Appeal No. 542 of 2003 are hereby dismissed. The Death Reference (No. 3 of 2003) is answered accordingly.

Hari Shankar Prasad, J.

I agree.