Dilchand Mahant vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellants/accused herein under Section 374 (2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 08.08.2013 passed by the Court of learned Additional Sessions Judge, FTC, Raigarh in Sessions Trial No. 86/2011, whereby each of the appellants have been convicted for offence punishable under Section 302/34 of the IPC and sentenced to undergo imprisonment for life with fine of Rs.5,000/- each, in default of payment of fine to further undergo additional rigorous imprisonment for six months each.

The case of the prosecution, in short, is that on 24.04.2011 in the field of Mahantdas, Village Chhatamuda, P.S. Kotwali, District Raigarh in furtherance of common intention, the appellants assaulted deceased Tannudas by wooden club (bamboo stick) and caused his murder, thereby they committed the aforesaid offence.

The further case of the prosecution, in nutshell, is that prior to one day of the date of incident, the deceased slapped appellant No.4 on account previous enmity pursuant to which all accused/appellants in furtherance of common intention on 24.04.2011 went to the pond where the deceased had gone for bath and they assaulted the deceased by wooden club, tied his legs with rope and dragged him to the field of Premlal Patel till his death and fled away leaving the dead body of the deceased. The matter was informed to Jamuna Bai (PW-1). The matter was reported to Outpost Police Station Jute Mill, Raigarh vide Ex.-P/1, therefore, offence was registered against all the accused persons for offence punishable under Section 302/34 of the IPC. Merg Intimation was registered vide Ex.-P/2. Inquest was conducted vide Ex.-P/5. Spot map was prepared vide Ex.-P/7. The dead body of deceased Tannudas was sent for postmortem. The postmortem examination was conducted by Dr. B.R. Patel (PW-10) and he gave his report vide Ex.-P/23. As per postmortem report (Ex.-P/23), Dr. B.R. Patel (PW-10) opined that cause of death of deceased Tannudas was shock due to injury. Doctor also opined that death of the deceased was homicidal in nature. Pursuant to memorandum statements of appellant No.1 (died) and appellant No.3 wooden club (bamboo sticks) were seized vide Ex.-P/12 & Ex.-P/14; pursuant to memorandum statement of appellant No.2, bicycle was seized vide Ex.-P/13 and pursuant to memorandum statement of appellant No.4, rope was seized vide Ex.-P/15. But, seized articles were not sent for FSL.

Accused/appellants were arrested on 24.04.2011. After due investigation, the accused/appellants were charge-sheeted for the offence punishable under Section 302/34 of the IPC which was placed before the Court of Chief Judicial Magistrate, Raigarh and it was then committed to the Sessions Court, Raigarh for trial in accordance with law, in which the accused persons abjured their guilt and entered into defence. The learned trial Court framed charges under Section 302/34 of the IPC against the appellants which were denied by them and they prayed for trial.

In order to bring home the offence, prosecution examined 11 witnesses and brought on record 30 documents. Statements of the appellants/accused were recorded under Section 313 of the CrPC wherein they abjured their guilt, they did not examine any witness, however, exhibited 01 document i.e. Exhibit.-D/1.

Learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellants for the offence punishable under Section 302/34 of the IPC and sentenced them as mentioned in the opening paragraph of this judgment.

During the pendency of this appeal, appellant No.1 Dilchand Mahant died and the appeal so far as it relates to appellant Dilchand Mahant stands abated vide order of this Court dated 05.01.2015. Therefore, the present appeal on behalf of remaining appellants No. 2 to 4 is being considered.

Learned counsel for the appellants submits that appellants No. 2 to 4 have been falsely implicated in this case. He would submit that the prosecution has utterly failed to prove its case beyond all reasonable doubts and the trial Court has committed grave error and illegality by recording conviction of appellants No. 2 to 4 under Section 302/34 of the IPC. He also submits that the trial Court without appreciating the evidence available on record, convicted and sentenced appellants No 2 to 4, therefore, conviction and sentences awarded by the trial Court to appellants No. 2 to 4 deserve to be set aside. He would also submit that at the most offence under Section 304 Part-II of the IPC is made out, as such the appeal be allowed.

On the other hand, learned counsel for the State would support the impugned judgment of conviction and order of sentence and submit that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted appellants No. 2 to 4 for offence under Section 302/34 of the IPC and it is not a case where conviction of appellants No. 2 to 4 under Section 302/34 of the IPC requires to be altered to Section 304 Part-I or Part-II of the IPC, thus, the present appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

The first question is as to whether the death of the deceased was homicidal in nature, which has been answered by the learned trial Court in affirmative by relying upon the postmortem report (Ex.-P/23) duly proved by Dr. B.R. Patel (PW-10). In our considered opinion it is correct finding of fact based on evidence available on record and same is neither perverse nor contrary to the record. We hereby affirm that finding.

The star witnesses of the prosecution are Rahudas Mahant (PW-7) and Jamuna Bai (PW-1).

According to the prosecution, Rahudas Mahant (PW-7) has stated that he had not seen the incident. He has stated that when he was going towards the pond, he had seen Tannudas (deceased) was lying on the field. Thereafter, he informed the mother (Jamuna Bai – PW-1) of the deceased that Tannudas was lying on the field. Jamuna Bai (PW-1) has stated that Rahudas Mahant (PW-7) shouted that her son is being killed. Then, Jamuna Bai (PW-1) immediately rushed to the spot and seen the appellants assaulting her son (deceased). She has further stated in para-6 that prior to the incident, there was dispute between them and the appellants. In para-7, she has stated that when she reached to the spot, Laxmi Mahant and his father Dilchand Mahant (appellants No. 2 & 1) were having danda, appellant No. 4 Tijmati Mahant was having kerosene oil and appellant No. 3 Malati Mahant was having rope. However, Rahudas Mahant who has been examined as PW-7 has stated that he informed Jamuna Bai (PW-1) about the incident, but he has not supported the case of prosecution. Rahudas Mahant (PW-7) has clearly stated that he had not informed the deceased's mother Jamuna Bai (PW-1) that the appellants assaulted the deceased. Admittedly, the place of residence of Jamuna Bai (PW-1) is far about some distance from the place of incident, though the actual distance is not brought on record. Since Rahudas Mahant (PW-7) has not supported the case of prosecution, but it appears that Jamuna Bai (PW-1) reached to the spot after the assault was made by the appellants, therefore, it would be unsafe to rely upon the sole testimony of Jamuna Bai (PW-1) unless some corroboration is there. However, pursuant to memorandum statement of appellant No.1 Dilchand Mahant (died and his name deleted), wooden club (bamboo stick) was seized, but it was not sent for FSL. Though in the query report, Dr. B.R. Patel (PW-10) has said that contusion mentioned in the MLC report Ex.-P/24 could have been caused by bamboo stick which was used by appellants. But in absence of human blood on the bamboo stick, it cannot held that bamboo stick were used by the appellants as weapon for the commission of offence. Furthermore, appellant No.2 Laxmi Mahant @ Ghashiya is concerned, bicycle has been seized from his possession and rope has been seized from appellant No.4 Tijmati Mahant, whereas no rope injury was found on the dead body of the deceased.

Therefore, we are of the considered view that on the basis of the sole testimony of Jamuna Bai (PW-1), in absence of any corroborative piece of evidence, it would be unsafe to convict appellants No. 2 to 4 in the present appeal, namely, Laxmi Mahant @ Ghashiya (A-2), Malati Mahant (A-3) and Tijmati Mahant (A-4) for offence under Section 302/34 of the IPC, as the evidence of Jamuna Bai (PW-1) and her presence on the spot is not established and thus, conviction of appellants No. 2 to 4 for aforesaid offence is liable to be set aside by giving benefit of doubt.

In view of the aforesaid analysis, we are of the considered opinion that prosecution has miserably failed to bring home the offence punishable under Section 302/34 of the IPC against appellants No. 2 to 4 and the trial Court is absolutely unjustified in convicting them for the said offence. Therefore, appellants No. 2 to 4 are entitled to benefit of doubt and we hereby set aside the impugned judgment of conviction and order of sentence passed by the trial Court and acquit appellants No. 2 to 4 from the charge levelled against them. Appellants No. 2 to 4 are reported to be on bail, they need not surrender and their bail bonds shall remain in force of a period of six months from today in view of the provisions of Section 437-A of Cr.P.C.

Accordingly, this criminal appeal stands allowed.