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Judgment
This criminal appeal is directed against the judgment of
conviction and order of sentence dated 20.8.2003 and 28.8.2003 respectively,
passed by the learned Additional District and Session Judge, FTC-IV at Bokaro
in Session Trial No. 110 of 1995, arising out of Chas P.S. Case No. 43 of 1993
corresponding to G.R. No. 823 of 1993, whereby and whereunder, the court
having found the appellants guilty for committing murder, convicted them for the
offence punishable under Section 302 / 34 of the Indian Penal Code and
sentenced them to undergo imprisonment for life.
The case of the prosecution, on the basis of fardbeyan of the
informant Durga Prasad Manhji is that on 25.7.1993 at about 7:30 a.m., he was
ploughing his filed near "Joriya Hill" with Jailu Manjhi, Chunu Manjhi, Chhotu
Manjhi and Kola Manjhi. At the time his father Raghunath Manjhi was walking
on the ridge of the filed. In the meantime, accused persons namely Sitaram
Mahto, Kanku Mahto, Bhism Mahto, Sarwani Mahto, wife and mother of Sitaram
Mahto came there armed with deadly weapon in their hand and surrounded his
father Raghunath Manjhi. They started abusing him and all the four male
accused persons assaulted him with Farsa and Tangi. The father of informant
received injury in his right hand and forehead just below his eyes and he fell
down on the ground. Informant immediately took his father to the hospital for
treatment with the help of villagers.
On the basis of the aforesaid fardbeyan, Chas P.S. Case No. 43 of
1993 was registered under Sections 147, 148, 149, 341, 324, 307 IPC against
all the accused persons. During course of treatment, injured Raghunath Manjhi
succumbed to his injuries, therefore, Section 302 IPC was added latter on. After
investigation, the police submitted chargesheet agianst all the named accused
persons. Cognizance of the offence was taken and the case was committed to
the court of Session which was registered as S.T. Case No. 110 of 1995.
Charges were framed against five accused persons including
the present appellants under Sections 147, 148, 149, 307, 302 IPC to which,
they did not plead guilty and claimed to be tried.
In order to prove the charges against the accused, the
prosecution has examined altogether 08 witnesses, who are as follows:-
P.W-1: Gora Chand Mahjhi, claimed to be an eye witness of the occurrence. 2. P.W.-2: Janglu Mahjhi, also claimed to be an eye witness of the occurrence. 3. P.W.-3: Chhottu Manjhi, claimed to be an eye witness of the occurrence. 4. P.W.-4:Japlu Manjhi, claimed to be an eye witness of the occurrence. 5. P.W.-5: Chamu Manjhi @ Bhutur Manjhi, claimed to be an eye witness of the occurrence. 6. P.W.6-Durga Prasad Manjhi, is the son of the deceased and informant of the case and has claimed to be an eye witness of the occurrence. 7. P.W.-7: Dr. Awanish Kumar Choudhary, conducted the postmortem on the body of the deceased. 8. P.W.-8 Baldeo Pandey, is the Investigating Officer of the case.
Documents such as postmortem report and Fardbeyan are
exhibited and marked as Exhibits 3 and 2/1 respectively. The signatures on the
inquest report were exhibited and marked as Exhibits 1 and 1/1 and the
signature of Durga Prasad Manjhi (informant) in the Fardbeyan is also exhibited
and marked as Exhibit-2. The endorsement in the Fardbeyan is exhibited and
marked as Exhibit 2/2.
The defence has also produced three witnesses, they are
D.W.1-Bhisam Mahto, D.W.2- Dr. Ratan Kejriwal and D.W.3-Vikhya Kumar
Mandal. A rent receipt has been exhibited by the defence which is marked as
Exhibit-A. Certified copy of FIR in G.R. No. 824 of 1993(a counter case) has
also been exhibited and marked as Exhibit-B. Photocopy of the injury reports of
accused persons are also exhibited and marked as Exhibits X1 and X2.
After closure of the evidence of the prosecution, the statements
of the appellants were recorded under Section 313 Cr.P.C.
The trial court, after hearing the arguments on behalf of the
parties and after going through the materials available on record, vide judgment
dated 20.8.2003, convicted the appellants for the offence under Section 302 of
the Indian Penal Code and sentenced them to undergo imprisonment for life.
Challenging the said judgment of conviction and order of sentence dated
20.8.2003 and 28.8.2003 respectively, these appellants have preferred this
appeal.
The counsel appearing for the appellants submits that the
appellants are innocent and the prosecution has miserably failed to prove the
case beyond all reasonable doubt. He further submits that from the evidence, it
is crystal clear that the genesis of the occurrence is bonafide land dispute, for
which, the appellants could not have been convicted for the offence under
Section 302 IPC. He also submits that from the evidence, it is clear that there
are no materials on record to even remotely suggest that there was intention to
commit the murder of the deceased and thus for want of such intention,
conviction under Section 302 IPC is absolutely bad. It is further submitted that
there is material contradictions in the deposition of the witnesses, which clearly
suggests that the witnesses produced on behalf of the prosecution are not the
eye witnesses of the occurrence and are not telling the truth. He also submits
that all the witnesses are interested witnesses and they are related to each
other and are not the residents of the same village, which creates a serious
doubt about their presence at the place of occurrence. It is further submitted
that the real story has been suppressed by the prosecution and in fact, the
informant party of this case was the aggressors and the appellants exercised
their right of private defence of property and persons, and while exercising such
right of private defence, this occurrence took place. It is lastly submitted that the
prosecution has failed to explain the injuries on the persons of the accused,
which is a vital lapse on part of the prosecution and on this ground the counsel
for the appellants prays to acquit the appellants.
On the other hand, learned Addl. P.P. submits that there is
nothing on record to suggest that the appellants were in possession over the
land in question. He further submits that on the facts of this case and keeping in
view the evidences led by the defence, the right of private defence cannot be a
ground in the instant case. He also submits that all the eye witnesses
categorically supported the case of the prosecution and merely because they
are related to each other, their depositions cannot be thrown away. He lastly
submits that in view of the ocular evidences gathered in this case coupled with
medical evidence, this appeal is liable to be dismissed.
We have heard the learned counsel appearing for the parties
and gone through the Lower Court Record and have also scanned the Exhibits
as well as the evidences available on recorded.
In this case, as mentioned earlier, there are 08 prosecution
witnesses who have been examined.
P.W.1 Gora Chand Manjhi: claimed to be an eye witness of the
occurrence. He deposed that at the time of incident he was grazing his cattle
near Joriya of village Brindabanpur. At that time Raghunath Manjhi was walking
on the ridge. Japlu, Chunnu, Bhhotu, Durga Prasad Manjhi and Jaglu were
preparing field for sowing seeds. In the meantime, Sita ram Mahto assaulted
with Tangla (a sharp cutting weapon) on the head and Kanku Mahto assaulted
with Tangla on the right side of head of Raghunath Manjhi. Consequently,
Raghunath Manjhi fell on the ground. Thereafter, Bhism Mahto assaulted on his
chest from the back side of Farsa. Sarwani Mahto was holding Farsa and he
assaulted Raghunath Mahto after he had fallen. He further deposed that the
wife and mother of Sitraram Mahto were also there and they all surrounded
Raghunath Manjhi. He further deposed that during the course of treatment, the
deceased died.
In cross-examination, he deposed that at the time of incident, he was
grazing his cattle about 10-15 feet away from the place of incident. He further
deposed that except him and Raghunath Manjhi, no one was there. On quarrel,
mother and wife of Sitaram Mahto and Sarwani Mahto came there. Near the
place of incident there is field of Sitaram Mahto and other accused persons. He
stated that there existed land dispute between the parties and he does not know
that in whose name the land is recorded. He also stated that the same incident,
Sitaram Mahto had lodged a counter case against Durga Manjhi, his father,
Raghunath Manjhi and his five cousins.
P.W.2- Janglu Manjhi: he also claimed to be an eye witness of the
occurrence. He deposed that he was preparing field for seedlings and
Raghunath Manjhi was on the ridge of the filed. In the meantime, Sitaram
Mahto armed with Tangla, Kanku Mahto armed with Tangla, Sarwani Mahto and
Bhism Mahto armed with Farsa, wife of Sitaram armed with lathi and mother of
Sitaram having no weapon in her hand, surrounded Raghunath Manjhi and
started abusing him. Sitaram Mahto assaulted on the head of Raghunath
Manjhi with Tangla. Kanku Mahto assaulted with Tangla on the right side of eye
of Raghunath Manjhi. Bhism Mahto assaulted with Farsa on the chest of the
deceased. After the assault the deceased fell down on the ground. He further
deposed that he and Maheshwar Manjhi had put their signature on the inquest
report which has been marked as Exhibit-1 and 1/1.
During cross-examination, he deposed that for the same incident he was
also arrested but he was released in the case. He further in his cross-
examination has given the boundary of the place of occurrence stating that all
sides i.e. East, West, North and South of the place of occurrence, there is lands
of Raghunath Manjhi.
P.W.3- Chottu Manjhi, who is also the eye witness of the occurrence.
He deposed that at the time of incident, he was working in the filed of
Raghunath Manjhi alongwith Jailu Manjhi, Chunnu Manjhi, Jailu Mahjhi and
Robin Manjhi and were preparing the field for plantation of seedlings. In the
meantime, Sitaram Mahto, Kanku Mahto, Sarwani Mahto, Bhism Mahto, wife
and mother of Sitaram Mahto came with arms and surrounded Raghunath
Manjhi and started abusing him. Sitaram Mahto assaulted on the forehead of
Raghunath Manjhi with Tangla. Kanku Mahto assaulted below the right eye of
Raghunath Mahto with Tangla. Bhism Mahto assaulted from the back side of
Farsa on the chest of Raghunath Mahto. Sarwani Mahto assaulted on both the
elbows of Raghunath Mahto with Farsa. Rabhunath Mahto died in course of
treatment.
During cross-examination, he deposed that due to fear they did not
raise alarm at the time of incident. He did not know as to whether Sitaram
Mahto and Kanku Mahto were injured from the same incident. The police had
arrested him and Durga Manjhi in relation to the same incident.
P.W.4-Japlu Manjhi, who deposed that at the time of incident, he was
cultivating the filed. At that time, Sitaram Mahto holding Tangla, Kanku Mahto
holding Tangla, Bhogendra @ Bhism holding farsa, Sarwani Mahto holding
Farsa, wife of Sitaram holding lathi and mother of Sitaram having no weapon,
came at the field and assaulted Raghunath Manjhi. Sitaram Mahto and Kanku
Mahto assaulted with Tangla on the head and eye of Raghunath Manjhi.
Raghunath Manjhi has also got injury on his chest hand and body.
During cross-examination, he deposed that Sitaram Mahto assaulted
on the right side of forehead of Raghunath Manjhi with Tangla. Kanku Mahto
assaulted above the right eye of Raghunath Manjhi with Tangla. When
Raghunath Manjhi fell on the ground, Sarwani Mahto assaulted on his chest
with farsa. Sarwani Mahto also assaulted on the hand of Raghunath Manjhi
from the back side of Farsa. Sarwani Mahto had also got some injury.
Raghunath Manjhi become unconscious and was taken to the village on a cot.
He did not know as to whether Sitaram Mahto and Kanku Mahto received any
injury or not.
P.W.5- Chamu Majhi @ Bhutur Manjhi, who claimed to be an eye
witness. He deposed that Sitaram Mahto, Kanku Mahto, Bhism Mahto, Sarwani
Mahto, wife and mother of Sitaram came and surrounded Raghunath Manjhi.
Sitaram Manjhi and Kanku were holding Tangla. Bhism and Sarwani were
holding farsa and wife of Sitaram was holding lathi. Sitaram assaulted on the
forehead of Raghunath. Kanku Mahto assaulted near the right eye of
Raghunath with Tangla. Bhism Mahto assaulted from the back side of farsa on
his chest. Sarwani Mahto assaulted with Farsa on the hand of the deceased.
He further deposed that four persons had assaulted the deceased and rests
were abusing him.
P.W.6- Durga Prasad Manjhi, who is the son of the deceased and
informant of the case. He also claimed to be an eye witness of this case. He
deposed that on the day of incident he was working in his field alongwith
Janglu Manjhi, Chottu Manjhi, Jailu Manjhi, Koka Manjhi. In the meantime,
Sitaram Mahto and Kanku Mahto holding Tangla, Bhism Mahto and Sarwani
Mahto holding Farsa, came there. Wife of Sitaram holding lathi and mother of
Sitaram also came there and surrounded Raghunath Manjhi. Sitaram assaulted
on the right side of forehead of Raghunath Manjhi. Kanku Mahto assaulted
below the right eye with Tangla and as such, he fell down. Thereafter, Bhism
Mahto assaulted from the back side of farsa on the chest of the deceased.
Sarwani Mahto also assaulted with farsa on the hand of the deceased. On the
next day, the deceased died during the course of treatment. He proved his
signature on the Fardbeyan which is marked as Exhibit-2.
During cross-examination, he deposed that when he reached near his
father (deceased) accused persons had fled away. He could not say as to
whether accused Kanku Mahto and Sitaram Mahto were injured or not. He
stated that he had gone to jail for the same incident. In cross examination, he
gives the boundary of the Land where the occurrence had taken place. He
also stated that his nephew also went into custody for the same occurrence.
P.W.7: Dr. Awanish Kumar Choudhary, had conducted the
postmortem on the dead body of the deceased. He proved the postmortem
report, which is marked as Exhibit-3. He found the following two external
wounds:-
(I) An incised wound measuring about 5"x 1/2" x cranial cavity deep over right side of the vault of the skull. (II) Hematoma on the right side of the forehead. On disection an entero posteriorly situated depressed fracture of the frontal bone was seen in the right side intending into right frontal cynus with injuries to right frontal lobe of the brain in the form of laceration and contusion . The opinion of the Doctor is as follows:-
(I) Injuries were antimortem caused by heavy sharp edged weapon. (II) Death was due to combined effect of shock and comma as a result of massive internal as well as extra cranial hemorrhage (inside brain) no injuries to brain. (III) Time elapsed since death till postmortem done- within 24 hours.
P.W.8- Baldeo Pandey: was the Investigating Officer of the case. He
deposed that Durga Manjhi had come to the police station with his injured
father who was sent to hospital. He had recorded the statement of Durga
Manjhi at hospital. He deposed that the place of occurrence is the vacant land
of Sitaram Mahto (appellant No. 1) having Khata No. 22, Area 7 acres, Mouza-
Bhagabandh. He stated that there is land dispute between the parties as
because the informant is trying to plough the field on the western side of the
plot. He gives the description of place of occurrence as: North: land of
Raghunath Manjhi, South: land of Sitaram Mahato(Appellant No. 1), East: Land
of Sitaram Mahato and the vacant plot of Forest Department and West: the
land of Sitaram Mahto and thereafter a canal. On the west-south corner of the
plot, there were footprints from which it appeared that the occurrence took
place there. He proved the inquest report, which is marked as Exhibit-1/2. He
also proved the formal FIR which is marked as Exhibit-4. He further proved the
fardbeyan and signature of Durga Manjhi on the fardbeyan which have been
marked as Exts. 2/1 and 2, respectively. He also proved the endorsement
made in the fardbeyan which is marked as Exhibit 2/2.
During cross-examination, he deposed that he had not taken the
statement of the injured. He had not seen blood on the place of occurrence. He
had not seized cloth of the injured or any weapon. He stated that for the same
occurrence, a counter case was registered being Chas P.S. Case No. 44/1993
in which Durga Manjhi and others had been made accused. He further
deposed that the accused Sitaram Mahto and Kanku Mahto were also treated
in the hospital. Statement of witnesses namely Jailu Manjhi, Janglu Manjhi,
Chunnu Manjhi and Chotu Manjhi were recorded in the jail. In paragraph 24,
he stated that Jaillu, Japlu, Chunu and Chhotu are the residents of village-
Partand and they are own brothers and they also reside in village
Birindavanpur. He stated that he cannot say whether these witnesses have got
any land in village Birindavanpur or not.
The defence has also examined three witnesses, which are as
follows:-
DW-1 Bhisam Matho, who deposed that on hearing hulla he reached
to the place of occurrence and saw that Sitaram Mahto and Kanku Mahto were
lying in the field and blood was oozing out from their body. He further deposed
that Durga Manjhi, Jailu Manjhi, Jaglu Manjhi, Chunnu Manjhi @ Chunur
Manjhi, Chottu Manjhi, Lobin Manjhi had assaulted Sitaram and Kanku Mahto.
When the present witness reached at the place of occurrence, he saw the
informant party were leaving the place of occurrence.
During cross-examination, he deposed that he had reached at the
place of occurrence after 10 minutes.
D.W.2- Dr. Ratan Kejriwal: is the Doctor who examined the accused
persons, namely Sitaram Mahato (Appellant No. 1) and found the following
injuries:-
(I) Lacerated wound on the chin 1 c.m. X 0.3 c.m. X 0.5 c.m. (II) Lacerated wound on the perital bone left lateral to the seggital stature near lambda 2.5 c.m. X 0.03 c.m. X 0.5 c.m. (III) Incised wound on occipant - 2 c.m. X 0.4 c.m. X 0.5 c.m. (chopped). (IV) Incised wound on the perital bone right lateral to the seggital stature and parallel to seggital stature with erasion of
epponeurosis appearing to the bone size 3.5 c.m. X 0.5 c.m. (chopped). (V) Abrasion on left shoulder joint 2 c.m. Rounded. (VI) Bruise on right arm mid-zone 3 c.m. Rounded. (VII) Abrasion and bruise on medial side of right scapula upper half 4 c.m. X 2 c.m. And abrasion below right scapula 3 c.m. X 2 c.m.
He opined that Injury No. 3 and 4 are due to sharp cutting weapon
and injury No. 4 is grievous in nature.
He also examined Kanku Manjhi (appellant No. 2) and he found the
following three injuries:-
(I) Incised wound on the occipant with evasion of epponeurosis size 4 c.m. X 5 c.m. chapped.
(II) Abrasion on right shoulder joint on deltoid size-2c.m.x2c.m.
(III) Abrasion on left scapula upper zone 2 c.m. X 1 c.m.
He also opined that the injury No. 1 is grievous in nature and is due to
sharp cutting weapon.
D.W.3- Vikhya Kumar Mandal: This witness has exhibited the rent
receipt of the land where the occurrence had taken place, which was marked
as Ext.-A. This receipt is in favour of the appellant.
Thus, from analyzing the evidences, we find that the
prosecution witnesses have stated that appellant No. 1- Sitaram Mahto
assaulted with a Tangla on the head of Raghunath Manjhi and appellant No. 2-
Kanku Mahto assaulted the deceased with Tangla on the right side of the head
and when Raghunath Manjhi fell down on the earth, Bhism Mahto assaulted
the deceased on the chest with the backside of Farsa and Sarwani Mahto also
assaulted the deceased with Farsa. Similar are the statements of the other
witnesses. Thus, as per the statement of prosecution witnesses, two assaults
were made on the head, one in the chest and also on both of the elbows of the
deceased. The assault on the head of the deceased was made by Tangla (a
sharp cutting weapon) and on the chest and on both the elbows of the
deceased, the assault was made by backside of Farsa.
The evidence of the ocular witnesses is not fully corroborated
by the medical evidence i.e. the evidence of P.W.7 (the doctor). The Doctor
(P.W.7) found only two injuries, one incised wound on the right side of the skull
and a Hematoma on the right side of the forehead of the deceased, but he did
not find any injury on the either side of the elbows or on the chest of the
deceased.
Further, the prosecution witnesses could not state the correct
boundary/description of the place of occurrence. The depositions of each of
the prosecution witnesses in respect of boundary/description of the place of
occurrence are different and from each other and the evidence of Investigating
Officer. The Investigating Officer clearly gave details of the land and stated that
the same belonged to the appellant No. 1. It is established that all the
prosecution witnesses are related to each other. The Investigating officer in his
evidence says that the prosecution witnesses are of different village though
they are residing in the village where the occurrence has taken place. The I.O.
in his evidence deposed that he could not verify whether these prosecution
witnesses have any landed property in the village Birindavanpur where the
occurrence has taken place. The defence has suggested during evidence, that
the prosecution witnesses came from different villages to the place of
occurrence. This suggests that the plea of defence is that the witnesses,
came from different villages to the place of occurrence and there are alien to
village Birindavanpur and in fact, they have no knowledge about the
occurrence.
The prosecution witnesses have admitted that they were taken
into custody with respect to the counter case arising out of the same
occurrence. Thus, the fact that a counter case has been lodged, has been
admitted by the prosecution witnesses.
The most important witness in this case is the Investigating
Officer, who gives the details about the place of occurrence and deposed that
the land, for which the altercation has taken place, belongs to appellant No. 1
and the rent receipt, exhibited by D.W.3, also supports the said fact. Further
we find that there were injuries on person of the appellant Nos. 1 and 2.
Further the I.O. has stated that appellant Nos. 1 and 2 were in hospital and
they were treated as they sustained injury. For the said assaults, a counter
case was lodged, which is an admitted fact. The Doctor (DW2), who examined
appellant Nos. 1 and 2, has found grievous injuries on the appellant Nos. 1
and 2 but these injuries have not been explained by the prosecution. Thus, we
find that the prosecution has not come up with the correct fact. They tried to
suppress something which goes to the root of the case.
In a case under Section 302 IPC, it is the duty of the
prosecution to prove the guilt of the accused beyond all reasonable doubt . It is
not the duty of the accused to prove their innocence. The accused is supposed
to create a doubt about the prosecution case and once the accused
successfully creates a doubt about the prosecution case, their job is over.
In this case, from the evidence of I.O., a doubt has crept in the
prosecution story. As per the evidence of I.O., it is crystal clear that the land
belongs to the accused persons and from the other prosecution witnesses, it is
also clear that for the same occurrence, there was a counter case. Further,
appellant Nos. 1 and 2 were injured and some of their injuries were grievous in
nature and this gives rise to a possibility that it is the appellants who were
attacked by the informant party, which caused grievous injuries on the persons
of the appellant Nos. 1 and 2 and to defend their lives and property, they (the
appellants) exercised their right of private defence, which resulted in death of
the deceased, Raghunath Manjhi. Further, we find that the injuries on the
appellants, which were grievous in nature, have not been explained by the
prosecution, though the prosecution owes the duty to explain the grievous
injuries on the persons of the accused. The prosecution has miserably failed to
perform their duty, which is fatal for the prosecution. This gives an impression
that the true fact as well as the genesis of the case has been suppressed by
the prosecution.
Thus, from what has been discussed above, we find that the
prosecution has not been able to prove its case beyond all reasonable doubt,
which entitles acquittal of all the accused persons. The judgment and the order
of sentence thus is set aside. The accused are acquitted of the charges
leveled against them. Appellant Nos. 2, 3 and 4, namely, Kanku Mahto, Bhism
Mahto and Sarwani Mahto respectively, are on bail, they are discharged from
the liabilities of their bail bonds. Appellant No.1-Sitaram Mahto, who is in
custody, be released forthwith, if not wanted in any other case. Let the
judgment as well as Lower Court Record be sent forthwith to the trial court
concerned.
This appeal is allowed, accordingly.