Dukhan Mahto And Ors vs State Of Jharkhand

Chandrashekhar, J

Fourteen persons were named as accused by Khageshwar Mahato, son of the deceased, in his fard-beyan which was recorded on 20.11.1993 at

village-Nasiya Jirwagarha Tand, on the basis of which Nawadih P.S Case No.87 of 1993 was lodged against them. Twelve persons, namely, Bhim

Mahato, Durga Mahato, Dukhan Mahato, Dhaneshwar Mahato, Panu Mahato, Kewal Mahato, Dhanu Mahato, Mangar Mahato, Kishun Mahato, Nun

Chand Mahato, Baleshwar Mahato and Deg Lal Mahato have faced the trial on the charge under sections 147, 148, 379 and 302/149 of the Indian

Penal Code; the accused, namely, Rup Lal Mahato died after a common charge was framed against the accused persons vide order dated 16.09.1996.

The appellants along with Bhim Mahato and Durga Mahato have been convicted and sentenced to R.I for life under section 304 Part-I r/w section

149 of the Indian Penal Code and they have also been convicted and sentenced to R.I for Six months under section 147 and section 148 of the Indian

Penal Code. However, they have been acquitted of the charge under section 379 of the Indian Penal Code.

The convicts, namely, Bhim Mahato and Durga Mahato have preferred Criminal Appeal (D.B) No.219 of 2001, which, by an order dated

08.07.2019, on their death, has been dismissed as infructuous.

An affidavit has been filed by Sub-Inspector of Police, Nawadih Police Station, Bokaro stating that the appellants, namely, Panu Mahato, Kewal

Mahato and Mangar Mahato have died during pendency of this criminal appeal. Along with this affidavit certificate issued by Mukhiya of Gram

Panchayat-Bandiya, Block-Chandrapura, Bokaro has been produced on their death.

Miss Saumya Pandey, the learned Amicus states that she has received no instruction for filing an application on behalf of the legal heirs/successors

of these appellants for their substitution in place of these appellants.

Accordingly, this criminal appeal qua the appellants, namely, Panu Mahato, Kewal Mahato and Mangar Mahato stands abated.

During the trial, the prosecution has examined 7 witnesses; the informant is P.W 2.

The learned Additional Sessions Judge has found P.W 2, P.W 3 and P.W 5 as eye-witness. P.W 1 is a formal witness and P.W 4 is the inquest

witness.

The defence set-up by the accused persons is that on account of a long standing land dispute and a case lodged by Rup Lal Mahato against Beni

Ram Mahato and his wife they have been falsely implicated in this case.

The informant of this case is son of the deceased, namely, Beni Ram Mahato. In his fard-beyan, he has stated that at about 12:00 noon on

20.11.1993 he received an information that Rup Lal Mahato and his party forming an unlawful assembly, armed with weapons, were cutting paddy

crops. On receiving such information, he along with his father and mother had gone to the paddy fields where he has seen the accused persons who

armed with weapons were cutting the paddy crops. When his father objected, Durga Mahato and Bhim Mahato assaulted him with Farsa and other

accused persons have assaulted him with lathi. On receiving injuries, his father fell on the ground and thereafter, afraid, he along with his mother came

back home. After about 1½ hours, he came to the place of occurrence with the villagers where he has found his father dead.

In his examination-in-chief, the informant has spoken about the accused persons cutting the paddy crops, his visit to the field with his parents and

assault by the accused persons on his father. He says that when he came back to the paddy field again he has found that his father has died and the

accused persons had taken away paddy crops. His mother who has been examined as P.W 5 has also deposed on the similar lines.

The prosecution has projected Gopal Mahato, nephew of the deceased, also as an eye-witness. Though there is no reference of presence of Gopal

Mahato at the place of occurrence in the fard-beyan or the evidence of the informant and his mother in the court, P.W 3 has claimed that he was

grazing animal at a nearby field at the time of the occurrence.

From the above evidences led by the prosecution through P.W 2, P.W 3 and P.W 5 what appears to us is that there is serious doubt on the claim

of these witnesses that they have seen the accused persons assaulting Beni Ram Mahato.

The testimony of the informant and other eye-witnesses does not inspire confidence. In his cross-examination, the informant has admitted that he

did not go to the police station rather he has sent villagers to thana (police station) and he has remained at the place of occurrence, but in the same

breath he says that Bhukhal Mahato has given information to the police. His mother has also stated in her evidence that Bhukhal Mahato had given

information about the occurrence to the police. However, the investigating officer has deposed in the court that on the basis of rumour received in the

police station he has proceeded to village- Nasiya Jirwagarha Tand. Presumably to a suggestion by the defence that Bhukhal Mahato has given

information about the incident, in his cross-examination the investigating officer has specifically denied that any information about the incident was

received from Bhukhal Mahato (para-21). The informant has said that he has received information about the accused persons cutting the paddy crops

from Narayan Mahato and in his cross-examination he admits that Narayan Mahato and Bhukhal Mahato both are alive. He has also stated that while

returning from the place of occurrence he has met Budhan Mahato. However, these persons have not been produced during the trial.

The informant has stated that the distance between his house and the place of occurrence is about 2 km. and his family consists of 12 persons; but

only three have gone to the paddy field. He has also admitted that the accused persons are living in different villages and some of them are residing at

a distance of 2½ km. from Nasiya Jirwagarha Tand. He admits that a proceeding under section 144 of the Code of Criminal Procedure was

instituted between the parties and by an order dated 15.04.1993 he was restrained from going to the land in question. On such facts, a doubt is raised

on the claim of the informant and his mother that they were present at the time of occurrence.

During her cross-examination, mother of the informant has denied that Pati Gope has committed murder of Wakil Mahato, however, she has

admitted that there was a land dispute between the parties. She has stated about information from the villagers about cutting of paddy crops by the

accused persons, however, she has failed to name the person who has given such information. P.W 3 has stated that the accused persons had

surrounded Beni Ram Mahato, his wife and his son. However, they did not try to flee away and the accused persons did not attempt to assault

Mangari Devi and Khageshwar Mahato.

In the above crime scene as described by P.W 2, P.W 3 and P.W 5, conduct of these witnesses in not trying to save Beni Ram Mahato and after

assault on him all of them coming back to the village; at one place the informant has stated that he had remained at the place of occurrence, none of

them going to the police station to lodge a report and their returning at the place of occurrence about 1½ hours after they came back village, create

serious doubt on reliability of their testimony. These witnesses do not appear to be telling the truth.

From the medical evidence and as rightly contended by the learned Amicus with reference to a judgment of the Supreme Court in “Anjani

Chaudhary Vs. State of Bihar†reported in (2011) 2 SCC 747, we find that the manner of occurrence as described by the prosecution witnesses is

not supported by the medical evidence. The allegation of assault by lathi on Beni Ram Mahato is not corroborated by the evidence of Dr. Chandra

Bhushan Prasad Singh-P.W 6, who has conducted the post-mortem examination on 21.11.1993.

The doctor has found the following injuries on Beni Ram Mahato:

(i) incised wound of whole thickness of the middle leg of the left leg escaping the anterior part of the skin, attached only both fragment of

leg by skin.

(ii) incised wound 1 ½â€​ x ½ “ x deep cut scalp bone on the left tempro-parietal part of scalp.

(iii) incised wound 3â€​ x 1â€​ x 1â€​ between inter-falangial space between left thumb and left index finger.

(iv) abrasion on the left side of chest which was 2â€​ x ¼â€​

In the opinion of the doctor, the injuries were ante-mortem in nature and caused by sharp-cutting weapon.

On complicity of the surviving appellants, namely, Dukhan Mahato, Dhaneshwar Mahato, Dhanu Mahato, Kishun Mahato, Nunchand Mahato,

Baleshwar Mahato and Deg Lal Mahato, we find that the prosecution evidence is, least to say, inconsistent. None of the prosecution witnesses has

specifically stated about assault on Beni Ram Mahato by all of them. The wife of Beni Ram Mahato has stated that three of the appellants have

assaulted her husband with lathi.

Miss Saumya Pandey, the learned Amicus has contended that to rope in the surviving appellants with aid of section 149 of the Indian Penal Code,

it must be established that the appellants were present at the place of occurrence and at the time of occurrence and they have played some part in the

incident.

Section 141 of the Indian Penal Code defines unlawful assembly. An assembly of five or more persons becomes unlawful assembly if common

object of the assembly is to commit any one of the five acts mentioned under section 141 of the Indian Penal Code. Section 149 of the Indian Penal

Code speaks of constructive liability of all for the act of one or more accused persons, however, it must be established that they have acted in

furtherance of common object of all. On the basis of the evidences led by the prosecution against the surviving appellants; wife of the deceased has

stated about three persons assaulting her husband and the informant has stated that all of them intended to commit murder of Beni Ram Mahato but

no injury corresponding to lathi blows is found by the doctor, we are of the opinion that the prosecution has failed to prove that the surviving appellants

shared common object to murder Beni Ram Mahato and death of Beni Ram Mahato has been caused in furtherance of common object of the

unlawful assembly.

Therefor, the judgment of conviction dated 28.04.2001 and the order of sentence dated 30.04.2001 passed against these appellants under section

304 Part-I r/w section 149 of the Indian Penal Code is unsustainable and, accordingly, it is set-aside.

The conviction and sentence of these appellants under section 147 and section 148 of the Indian Penal Code are also set-aside.

The surviving appellants, namely, Dukhan Mahato, Dhaneshwar Mahato, Dhanu Mahato, Kishun Mahato, Nunchand Mahato, Baleshwar Mahato

and Deg Lal Mahato, who are on bail, shall stand discharged of liability of the bail-bonds furnished by them.

In the result, Criminal Appeal No.220 of 2001 in respect of the surviving appellants succeeds.

We appreciate the assistance rendered by the learned Amicus, who has prepared meticulous notes and chart on the prosecution evidence.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus as per Notification dated 23.11.2017.

Let a copy of the judgment be transmitted to the court concerned through 'Fax'.

Let lower-court records be sent to the court concerned forthwith.