Santosh Mahto vs State Of Jharkhand `

Gautam Kumar Choudhary, J

This appeal is directed against judgment of conviction and sentence passed in S.T. No.27 of 2004 by which the appellants have been convicted and sentenced under Sections 302 and 323/34 of the IPC.

As per the FIR, the incidence took place when the informant Nepal Mahto along with his father Kalipado Mahto went to the field for getting lac from the tree. It is said that they were attacked by altogether eight persons including these appellants who came there armed with rod, lathi, tangi etc. When the brother-in-law of the informant- Rasraj Mahto came to the rescue, he was also assaulted. Father of the informant-Kalipado Mahto died due to injuries sustained by him in the assault, whereas the informant and Rasraj Mahto were admitted in hospital for treatment.

On the basis of the fardbeyan of Nepal Mahto, Nimdih P.S. Case No.37/2003 was registered under Sections 147, 148, 149, 323, 324, 325, 307 and 302 of the IPC.

Police on investigation, submitted charge sheet against these appellants, who were put on trial for the offences punishable under Sections 302, 307, 324, 325/34 of the IPC.

Altogether eleven witnesses were examined on behalf of the prosecution and relevant documents including post mortem examination report and injury reports were adduced into evidence and marked as Exhibit 1–7.

Judgment of conviction and sentence has been assailed on the ground that the post mortem examination report does not state that injury was sufficient, in the ordinary course of nature to cause death. The Doctor (P.W. 11) has only opined that death was due to shock and hemorrhage. It is further argued that FIR was lodged against altogether eight persons, but the charge sheet has been submitted only against four. There is no investigation on the point regarding the ownership of the tree from which the lac was being taken by the informant party. It is also argued that Section 34 of the IPC will not apply in the present case, as overt act has been attributed only against Youdhisthir Mahto and Bhimchand Mahto whereas it is alleged that Santosh Mahto and Bindu Mahto were directing the assault. The manner of assault is not corroborated by the post mortem examination report.

Learned A.P.P. has defended the judgment of conviction and sentence.

There are certain consecrated principles of appreciation of evidence which have evolved out of long line of judicial precedents. Central to this the prudent men test, which implies that materials brought on record should be of such quality, so as to inspire confidence of Court. It is not the number and volume of evidences which are important, but their intrinsic worth, which is significant. The judicial scrutiny commences with determination of veracity of the alleged incidence and then it proceeds to the persons involved in it.

Death of Kalipado Mahto was homicidal in nature, is proved by the post mortem examination report (Exhibit 7) which has been proved by P.W. 11- Dr. Lalan Choudhary, who found the following ante mortem injuries: -

I. Lacerated wound 1 cm x 0.25 cm x 0.25 cm over front and upper part of left ear.

II. 2 cm x 2 cm x into bone deep and 0.5 cm x 1 cm x bone deep over right arm and right humorous bone fractured.

III. 7.5 cm x 4.5 cm x bone deep over posterior surface of left forearm, radius and ulna bones – fractured and protruding through wound.

IV. 6 cm x 1.5 cm x muscle deep and 6 cm x 1.5 cm x muscle deep over front of left leg.

V. 4 cm x 1.5 cm x muscle deep over upper part in front of right leg. Lower part of right tibia and fabula fractured and surrounding tissues contused.

Opinion- Cause of death due to hemorrhage and shock. All injuries were caused by hard and blunt object.

The injury reports proved by the Dr. Balram Murmu (P.W. 7), who examined Nepal Mahto and Rasraj Mahto established that they were also injured in the same incidence. Injuries were found to be simple in nature, and opinion was reserved with regard to some of the injuries relating to both the injured, awaiting X-ray report. But, no subsequent report is there on record, to suggest that the injuries inflicted were grievous.

Law is settled that deposition of the injured witnesses deserve a higher degree of credence, as their presence at the place of occurrence is assured, and in normal course of human conduct it is not expected that they will falsely implicate someone leaving aside the main assailant. In the present case, injured witnesses are Nepal Mahto (P.W. 6) and Rasraj Mahto (P.W. 1). P.W. 1 has deposed that deceased Kalipado Mahto was his father-in-law. On the date of incidence, P.W. 1 was in his matrimonial home. His father-in-law and brother-in-law Nepal had taken out the cattle in the morning for grazing. At about 8 O’clock, he heard the cries for help, on which he went to the place of occurrence where he saw the Bhim and Youdhisthir were assaulting his father-in-law with lathi, whereas Bistu and Santosh were directing into assault. Bistu was armed with knife and Santosh had Tangi, and they were accompanied by other accused persons.

When P.W. 1 rushed to rescue Kalipado Mahto, he was assaulted by Bhim and Yudishthir with danda. His father-in-law sustained bleeding injury over his head. Nepal Mahto also sustained injury in the assault. The cause of dispute has been stated to be lac tree, over which both the parties were staking their claim. It has been deposed by him that Santosh and Bistu had not inflicted any blow.

P.W. 6 has deposed that he was grazing his cattle, Santosh Mahto, Bhim Mahto, Yudisthir Mahto and Bistu Mahto assaulted his father with lathi and rod resulting in bleeding injuries. It has also been deposed by him that Rasraj and this witness was also assaulted by the accused persons when they went to rescue his father. In cross-examination, he has deposed that the genesis of the offence over dispute lack. He has admitted in para 18 that in his fardbeyan he had not stated that accused had come with what weapon.

P.W. 3 is the son of deceased has deposed that on hulla, he went to the place of occurrence and saw that Santosh and Bistu had encircled his father who was being assaulted by Bhim and Youdhisthir. P.W. 4 also claims herself to be an eye witness. Her testimony is also on the same line.

P.W. 8 is the Investigating Officer, he has proved the place of occurrence in para 6 of his deposition where he found blood marks on the ground. In the cross-examination at para 11, he has deposed that he brought the injured Kalipado and his son-in-law Rasraj Mahto to the Police Station on the Jeep. In para 12, he has stated that the informant has not stated in his statement under Section 161 Cr.P.C. which accused was holding which weapon.

From the combined reading of the witnesses, it is evident that defence has failed to extract any vital contradictions in the account of the witnesses. P.W. 1 and P.W. 6 are the injured witnesses who have consistently stated that it was Bhim and Youdhisthir who had assaulted the deceased with iron rod and when these witnesses went to rescue, they were also assaulted by them. As far as other two appellants are concerned, they were present there with arms and were instigating the main accused in the assault. There is no reason to disbelieve the oral account of these witnesses. They have confined their charge of assault against only two of the above named appellants. They have not attempted to tar and implicate all with the same brush, by imputing criminal liability of assault against all. From their testimony, it can be safely concluded that fatal blow was inflicted by Bhim and Youdhisthir stand out as the main assailants in the testimony of the witnesses. Therefore, there is no infirmity in judgment of conviction and sentence passed under Section 302 of the IPC against them.

Matter  for  consideration  is  whether  the  other  two  appellants  namely Santosh and Bishtu can be held guilty for the offence with aid of Section 34 of the IPC.

It has come in evidence that dispute over the lac tree was brewing for some time, in view of the rival claims being laid by both the sides over it. It was not that the incidence took place on a spur of moment. Appellants had come prepared variously armed. Informant has admitted in his testimony that it has not been mentioned in the FIR, that which appellants were having which weapon. When multiple persons come armed with weapons, it is not necessary that an inventory of weapons being carried by each should be mentioned in the FIR. This is not a factor which will impinge on the credibility of witness, or the prosecution story. History of past dispute over the tree, shows that the appellants had come prepared and assault was premeditated. Number of injuries inflicted on Kalipado Mahto speaks volumes about the indiscriminate assault, which he had to suffer resulting in his death. He sustained multiple fracture and was so critically injured that while being taken to the hospital, he breathed his last. Intention is a mental element which can be inferred from the weapon used, nature of injuries inflicted and the part of the body on which the injuries have been caused. Prosecution has established that in a concerted manner deceased was assaulted resulting in his death. When P.W. 1 and P.W. 6 came to his rescue, they were also assaulted resulting in injuries. Under the circumstance, Section 34 of the IPC shall apply against the appellants- Santosh and Bishtu, and they are also held guilty for the offence under Section 302/34 of the IPC. All these appellants are also held guilty for the offence under Section 323/34 of the IPC.

Judgment of conviction and sentence passed by the learned trial Court is affirmed.

Criminal appeal stands dismissed.

All the appellants are on bail, their bail are cancelled and they are directed to be taken into custody forthwith.

Pending Interlocutory Application, if any, is disposed of.

Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.