Jagdish Raut Vs. State of Jharkhand - Court Judgment

1 Cr. Appeal (DB) No.997 of 2006 with Cr. Appeal (DB) No.87 of 2006 with Cr. Appeal (DB) No.877 of 2006 with Cr. Appeal (DB) No.999 of 2006 with Cr. Revision No.59 of 2006 [Against the judgment of conviction dated 22nd October, 2005 and order of sentence dated 24th October, 2005, passed by Sri Birendra Prasad Singh, Additional Sessions Judge, F.T.C.-IV, Deoghar in Sessions Case No.63 of 2004] ----- Jagdish Raut, son of Rameshwar Raut, resident of Navadih, P.S. Sarwan, District Deoghar. .….. Appellant [In Cr. Appeal (DB) No.997/2006] Bhutki Raut, son of Late Tuli Raut, resident of Navadih, P.S. Sarwan, District Deoghar. ...... Appellant [In Cr. Appeal (DB) No.87/2006] 1. Nirmal Rout 2. Suresh Pd. Rout @ Suresh Rout. Both resident of Navadih, P.S. Sarwan, District Deoghar. ...... Appellants [In Cr. Appeal (DB) No.877/2006] Mahendra Raut, son of Chutki Raut, resident of Navadih, P.S. Sarwan, District Deoghar. .….. Appellant [In Cr. Appeal (DB) No.999/2006] Mohini Devi, wife of Late Govind Mahto, resident of village Nawadih, P.O. Magdiha, P.S. Sarwan, District Deoghar. .….. Petitioner [In Cr. Revision No.59/2006] -Versus- The State of Jharkhand. .……... Respondent. [In all Criminal Appeals] 1.State of Jharkhand. 2.Chutki Raut, son of Late Tulo Raut. 3.Guna Raut, son of Late Tulo Raut. 4.Rameshwar Raut, son of Late Tulo Raut. 5.Deoul Raut, son of Chutki Raut. 6.Vishnu Raut, son of Rameshwar Rout. 7.Koleshwar Mahto, son of Bugdhi Mahto. 8.Kamdeo Mahto, son of Koleshwar Mahto. All residents of village Jardaha, P.S. Taljhari, District Dumka. .….. Opposite Parties [In Cr. Revision No.59/2006] ------ For the Appellant(s): Mr. Arbind Kr. Choudhary, Advocate. For the State : Mr. Pankaj Kumar, A.P.P. ------ 2 PRESENT CORAM : HON'BLE MR. JUSTICE D. N. UPADHYAY HON’BLE MR. JUSTICE RATNAKER BHENGRA ----- By Court: (D.N. Upadhyay, J.) 1. Since these criminal appeals arise out of judgment of conviction and order of sentence dated 22nd October, 2005 and 24th October, 2005, respectively, passed in Sessions Case No.63 of 2004, with the consent of the parties, the same have been taken up for hearing together and are being disposed of by this common judgment.

2. These criminal appeals have been directed against the judgment of conviction and order of sentence dated 22nd October, 2005 and 24th October, 2005, respectively, passed by learned Additional Sessions Judge, F.T.C.-IV, Deoghar in connection with Sessions Case No.63 of 2004, arising out of Sarwan P.S. Case No.46 of 2003, corresponding to G.R. No.422 of 2003, whereby the appellants have been held guilty for the offences punishable under Section 302/34 IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, each. In default of making payment of fine, further to undergo rigorous imprisonment of one year.

3. Cr. Revision No.59 of 2006 has been preferred against the judgment of conviction and order of sentence dated 22nd October, 2005 and 24th October, 2005, respectively, passed by learned Additional Sessions Judge, F.T.C.-IV, Deoghar in connection with Sessions Case No.63 of 2004, arising out of Sarwan P.S. Case No.46 of 2003, corresponding to G.R. No.422 of 2003, whereby Opposite Party Nos.2 to 8 in revision application though charged for the offence punishable under Section 302/34 of the Indian Penal Code but acquitted. Learned counsel appearing for the petitioner submitted that since he has no instruction in the matter, he does not wish to press the revision application. In the circumstances, Cr. Revision No.59 of 2006 stands dismissed as not pressed. 3 4. The fact, emerging from Fardbeyan of Mohan Mahto, recorded on 18th June, 2003, at 11:00 hours, at Mauja Gondalbari within Sarwan Police Station, District Deoghar, is that on 18th June, 2003 at about 4:30 a.m., Govind Mahto (deceased), Mohan Mahto (informant) and Hargouri Mahto (brother-in-law of the deceased) proceeded on their bicycles to attend Court at Deoghar in connection with a case prevailing between Bilkhi Rautain and Rameshwar Raut and others. When they reached near Gondalbari culvert at about 4:35 a.m. the appellants and their associates, who are named in the first information report, suddenly appeared from their hideout and intercepted Govind Mahto, who was proceeding ahead, whereas the informant and Hargouri Mahto were cycling behind. It is alleged that Rameshwar Raut instigated companion accused to kill them. Thereafter, the appellants, who were armed with Bhujali, Tangi, Farsa, dagger etc., started inflicting blows by means of their respective weapons to Govind Mahto. After having first assault on his neck, Govind Mahto fell down from bicycle and, thereafter, the appellants and their associates indiscriminately started causing assault and killed Govind Mahto at the spot. Some of the accused chased the informant and his associate-Hargouri Mahto to cause assault, but they turned towards back and fled away to their village. When they were leaving the place they had seen the appellants and their associates concealing the dead body of Govind Mahto in the nearby field behind bush. The informant with his relatives and villagers returned back to the place of occurrence and found the dead body of Govind Mahto lying in the field behind bush. On the basis of Fardbeyan of Mohan Mahto, Sarwan P.S. Case No.46 of 2003 dated 18th June, 2003 under Section 302/34 of the Indian Penal Code against the appellants and their associates, who are named in the first information report, was registered. The Investigation was carried out; charge sheet was submitted; and, accordingly, cognizance was taken against 4 the appellants and other accused persons. The case was committed to the court of sessions and registered as Sessions Case No.63 of 2004.

5. Charge under Section 302/34 of the Indian Penal Code against the appellants and other accused was framed to which they pleased not guilty and claimed to be tried. To substantiate the charge, the prosecution has examined altogether ten witnesses, whereas the appellants have also examined two witnesses in their defence. Learned Trial Judge, placing reliance on the evidences and documents available on record, held the appellants guilty for the offence punishable under Section 302 of the Indian Penal Code and inflicted sentence as indicated above whereas other accused persons, namely, Chutki Raut, Guna Rut, Rameshwar Raut, Deoul Raut, Vishnu Raut, Koleshwar Mahto and Kamdeo Mahto (Opposite Party nos.2 to 8 in Cr. Revision No.59 of 2006) stood acquitted.

6. Learned counsel for the appellants has assailed the impugned judgment on the ground that Hargouri Mahto (P.W.3) and Mohan Mahto-informant (P.W.6) are not eye- witnesses to the occurrence. There are contradictions in their statements and they should not have been considered as reliable witnesses. Hargouri Mahto (P.W.3) happens to be brother-in-law (Jija) of the deceased and he is resident of village Prithividih, which is situated at a distance of about 10-12 Kms. from village Nawadih. He had no occasion to accompany the deceased on the date of incident. He says that he had come to the house of deceased to attend marriage of his daughter- Birma, which was scheduled on 14th June, 2003. He stayed at the house of deceased even after the marriage was solemnized. Only to prove his presence, he has brought this fact on record. He says that marriage of Birma (daughter of the deceased) was solemnized in the village, whereas Birma Devi (P.W.7) has said that her marriage was solemnized in the temple of Baba Bashukinath. According to the statements of P.Ws.3 and 6, the occurrence took place on the way near culvert, but no blood stain was found at the place of occurrence. 5 When these two witnesses along with other villagers returned back to the place of occurrence, they were searching the dead body of Govind Mahto on the road and that indicates, they had not witnessed the occurrence. The informant has said that the appellants after causing assault to Govind Mahto carried the dead body to conceal it behind bush. Had the statement of informant correct, they could not have made efforts to search out the dead body. Admitted case of the prosecution is that dead body was lying behind bush in the field of Chowkidar Maheshwar and blood was found fallen in that field. Further admitted fact is that no trail of blood from the road to the place where dead body was found was available. These facts suggest that no assault to Govind was caused on the road and these two witnesses had not seen the occurrence. They have stated that they had raised alarm at the place of occurrence itself, but nobody had come to help them. The description of place of occurrence given by the witnesses as well as the Investigating Officer suggest that villages are located at some distance from the place of occurrence. Mohini Devi, wife of the deceased, says that when she had come to the place, Chowkidars were present near the dead body. According to prosecution case, no Chowkidars were ever informed either by P.W.3 or P.W.6. However, presence of these two Chowkidars near the dead body was unknown to the prosecution case and none of them have come forward to depose before the Court. Land dispute prevailing between the parties from before is also admitted and, therefore, implication of the appellants with false allegation in a case of murder could not be ruled out. According to the statements of P.Ws.3, 6 & 10, the police reached to the place of occurrence at about 11:00 a.m. and recorded Fardbeyan of Mohan Mahto (P.W.6). Inquest report and dead body challan were prepared, statements of witnesses were recorded and dead body was sent for its postmortem examination. The prosecution witnesses, including P.W.10- Lalan Prasad, in order to prove the place of occurrence, had planted a bicycle and slipper at the side of road near the 6 culvert because the seizure list of bicycle, slippers and stick was prepared in the evening at about 18:45 hours i.e. more than 12 hours after the occurrence.

7. Learned counsel has also raised question against quality of investigation and conduct of Investigating Officer. He did not collect blood stained soil from the place of occurrence. He did not make effort to find out trail of blood from the road to the place where the dead body was lying. He did not do investigation to bring it on record that bicycle, slipper and stick seized by him were the belongings of the deceased. Most surprising aspect of the prosecution case is that Dr. Binod Kumar (P.W.8) had conducted postmortem examination on the dead body of Govind on 19th June, 2003 and according to the opinion of the doctor, time elapsed since death till postmortem examination was more than 72 hours. When he was asked in his cross-examination, he has admitted that death might have taken place on 16th June, 2003. If the version of Dr. Binod Kumar is taken to be correct, no occurrence on 18th June, 2003 had taken place. It is clear that postmortem does not support ocular version of the witnesses. Ramu Mahto (P.W.9), who happens to be father of the deceased, was instructed by P.Ws.3 and 6 to go to the police station to inform about the occurrence. What happened to the information given by Ramu Mahto to the police station has not been disclosed by any of the prosecution witnesses. Longstanding land dispute prevailing between the parties is admitted. Ramu Mahto, father of the deceased, has admitted that he was lodged in jail custody in a case of murder. No independent witness has come forward to support the prosecution case. As many as twelve persons were named in the first information report, but seven out of them stood acquitted and that acquittal suggests false implication of more and more family members of the appellants. Learned Sessions Judge has failed to appreciate all these facts and has committed gross error by holding the appellants guilty for 7 the offence of committing murder. The impugned judgment of conviction and sentence is highly erroneous and the same is liable to be set aside.

8. Learned counsel for the appellant has relied upon the judgments of the Hon'ble Supreme Court, reported in AIR1975SC1727[Ram Narain Vs. The State of Punjab] and AIR1987SC826[Amar Singh & Ors. Vs. State of Punjab].

9. Learned A.P.P. has opposed the argument and submitted that P.Ws.3 and 6 are eye-witnesses and they have fully supported the prosecution case. They are the most natural witnesses because they were accompanying the deceased at the time of occurrence. The time of occurrence is 4:30 a.m. and much movement of people on a village road at early morning is not expected. The villages are situated more than one and half kilometers from the place of occurrence. Therefore, expectation of such villagers on Halla was remote. After the occurrence, P.Ws.3 and 6 disclosed the incident to family members and villagers who reached to the place within an hour and remained present till arrival of the police. The hearsay witnesses have given consistent and corroborative evidence. P.Ws.1 and 2 are witnesses to inquest and they have proved their signatures appearing on the inquest report. The bicycle and slipper, which were seized from the place of occurrence, were produced in Court and identified by Ramu Mahto (P.W.9) and those articles have been marked as Material Exts.1 and 2. Only because trail of blood from the road to the place where dead body was lying was not available, entire prosecution case could not be thrown away. So far as the evidence of Dr. Binod Kumar (P.W.8) is concerned, the opinion regarding time of death is not conclusive one and he has not explained the reason behind it. Rigor mortis disappears after twenty four hours of the death. So far as decomposition of the body is concerned, that depends on weather, atmosphere, place, manner in which the dead body is kept. It always vary due to weather 8 condition and temperature. Learned A.P.P. has relied upon the judgment of the Hon'ble Supreme Court reported in (2008)11 SCC337[Shivappa & Ors. Vs. State of Karnataka] and submitted, if evidence of eye-witnesses are reliable, consisting, convincing and inspiring confidence, the ocular version will prevail against the report of the medical expert, if it is not corroborating. The investigation was carried out immediately and all the formalities have been done without causing any delay. Statements of witnesses had been recorded and they have supported the prosecution case in Court and there is no merit in these appeals and the same are liable to be dismissed. 10.We have heard rival submissions, perused the record and gone through the impugned judgment. We do not find material contradictions in the statements of P.Ws.3 and 6, who are eye-witnesses. They have supported the prosecution case, as made out in the Fardbeyan. The witnesses, namely, Shyam Baitha (P.W.4), Mohini Devi (P.W.5), Birma Devi (P.W.7) and Ramu Mahto (P.W.9) though hearsay but they have reproduced the occurrence in detail as disclosed before them by the eye-witnesses. Only because trail of blood from the road to the place where dead body was lying was not available, testimony of eye-witnesses should not be thrown away. It is to be taken note of that occurrence of assault had taken place on the road near culvert within Mouja Gondalbari; Investigating Officer reached to the place of occurrence at about 11:00 a.m. According to the Fardbeyan, there were 12 accused persons, including the appellants. After receiving information about the occurrence, the family members and other villagers and witnesses had reached to the place of occurrence. The movement on the road was not stopped. Under such circumstance non-availability of trail of blood from Rasta to the place where dead body was lying is not very important. Due to activities indicated above, disappearance of blood, if fallen on the road, could not be 9 ruled out. P.Ws.3 and 6, who are eye-witnesses, have clearly stated that within two-three minutes the appellants and their associates killed Govind Mahto and carried the dead body to conceal it behind bush. Blood was found fallen on earth near the dead body, which supports the version of eye-witnesses. We do not find that anything material to disbelieve the version of P.Ws.3 and 6 has been elicited from their mouths in their cross-examination. This contradiction has no relevance as to whether marriage of Birma Devi was solemnized in the village or in the temple of Baba Bashukinath. The fact remains, marriage of Birma Devi was solemnized on 14 th June, 2003, just four days prior to the date of occurrence. Presence of relatives and friends in the marriage is a common feature. P.W.3 happens to be brother-in-law of the deceased and his presence to attend marriage of Birma was quite genuine. It is explained by the prosecution witnesses that after marriage of Birma, she had gone to her in-laws house and after two days she was brought back to her parent's house and for that P.W.3 had taken active part and he was staying in the house of deceased-Govind Mahto. 11.Ramu Mahto (P.W.9) happens to be father of the deceased. He has clearly stated that he had gone to the police station and informed this occurrence but his statement was not recorded. The police reached to the place of occurrence and the investigation was carried out. Slipper and bicycle belonging to the deceased were seized in his presence and he had signed the seizure list. Mohini Devi (P.W.5) and Birma Devi (P.W.7) are wife and daughter, respectively, of the deceased and they have given hearsay statements of the occurrence. P.Ws.1 and 2 are witnesses to the inquest. Thus, we find that the facts narrated in the Fardbeyan by Mohan Mahto (P.W.6) find support from the evidence of these witnesses. P.Ws.3 and 6 have described the weapon held and overt act committed by each of the appellant and there is no contradiction regarding manner of occurrence explained. Only because slipper and bicycle belonging to 10 the deceased were seized in the evening, the prosecution case regarding place of occurrence could not be disbelieved. The evidence on record indicates that the police arrived at the place of occurrence at about 11:00 a.m.; the investigation was carried out; documents like inquest report and dead body challan were prepared; statements of witnesses were recorded and throughout the day till evening the police and witnesses were present at the place of occurrence. The stick, bicycle and slipper belonging to the deceased were lying at the side of road near culvert and that supports that occurrence of assault had taken place there. It is also not vital that blood stain was not available on the slipper and bicycle. On perusal of evidence of P.Ws.3 and 6, we find that first blow by means of Bhujali was given by Jagdish Raut on the neck of the deceased and after sustaining injury he fell down from the bicycle. Thereafter, further injuries were caused to him by remaining appellants. Immediately after Govind Mahto was killed, the appellants carried the dead body in order to conceal it behind the bush. In such circumstance, if blood mark on the bicycle or slipper was not available, that will not brush aside the prosecution case. 12.Learned counsel for the appellants has given much stress on the evidence of the doctor (P.W.8) and submitted that postmortem report dos not support the time of occurrence as disclosed by so-called eye-witnesses. Before dealing with time of death by the doctor, we would like to refer the injuries noticed by the doctor at the time of postmortem examination. P.W.8 has described as many as seven injuries in the postmortem, caused by sharp cutting weapon and he has accepted the suggestion that these injuries are possible by means of Tangi, Bhujali, knife etc. Therefore, the injuries sustained to the deceased disclosed by eye-witnesses find corroboration from the postmortem report. So far as time of death as opined by the doctor is concerned, that could not be considered conclusive. No reason for coming to that conclusion has been assigned by 11 the doctor. Only on the basis that rigor mortis absent, sign of decomposition present like foul smell, blister present are not the conclusive symptom for giving conclusive opinion regarding time of death. Furthermore, the judgment of the Hon'ble Supreme Court relied upon by learned APP in the case of Shivappa & Ors. (Supra) supports the argument, if ocular version of eye-witness is consistent, convincing and inspiring confidence, report given by medical expert if not corroborating, the ocular version will prevail. In view of the discussions made above and judgment cited above, we do not agree to accept that death of Govind Mahto occurred on 16th June, 2003, as opined by the doctor. 13.Counsel for the appellants has not given much stress on the evidence of defence witness, but we feel it our incumbent duty to deal with the evidence brought on record by defence. D.W.1 has been examined to suggest that Jagdish Raut was not present at the place of occurrence, rather he was working in his field and it was witnessed by D.W.1-Bhagirath Baitha. D.W.2-Vijay Prasad Ram has been examined to prove the defence of alibi of the appellant-Suresh Prasad Rout. D.W.2 has proved the duty chart of the constable and home guard posted at Magazine and name of Suresh Prasad Rout appears in the duty chart. We have carefully examined the relevant documents proved by the defence, but we do not find that the appellant-Suresh Prasad Rout was attending his duty at the time of occurrence. We feel no hesitation to observe that these two defence witnesses have failed to prove the defence of alibi taken by appellants- Jagdish Raut and Suresh Prasad Rout. 14.In the result, we do not find any merit in these appeals and the same stand dismissed. The bail bond of appellant- Bhutki Raut in Cr. Appeal (DB) No.87 of 2006 is hereby cancelled and he is directed to surrender before the convicting/successor court, in connection with Sessions Case No.63 of 2004, arising out of Sarwan P.S. Case No.46 12 of 2003, corresponding to G.R. No.422 of 2003, within six weeks from today, failing compliance bail amount shall stand forfeited. If he fails to appear before the court, the convicting/successor Court shall issue process to secure his attendance. (D. N. Upadhyay, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi, 6th April, 2016 Sanjay/AFR