Santosh Mahto vs State Of Jharkhand

Gautam Kumar Choudhary, J

Appellant- Santosh Mahto is before this Court in appeal against the judgment of conviction and sentence under Sections 302, 307 and 324 of the IPC. Appellants- Dwarika Mahto and Mohini Devi are before this Court in appeal against the judgment of conviction and sentence under Sections 307 and 324 of the IPC.

Informant is the father of the deceased. As per the FIR, on 25.03.2001, in the morning at around 8:00 a.m. he was digging foundation in the courtyard of his house for construction of house. Dwarika Mahto with Trishul, Santosh Mahto with sword and his wife Mohini Devi with a Tangi entered into the house and opposed the digging of foundation. This led to hot exchange between both sides and the son of the informant namely Binod, Niwaran (deceased) and his wife and daughter also came there. Santosh Mahto with sword inflicted bleeding injuries to Binod Mahto and Niwaran Mahto, when wife of informant and his daughter came to their rescue, they were also injured by Dwarika Mahto with Trishul and his wife inflicted Tangi blow on them, resulting in critical injuries. The injured were taken for treatment to Dhanbad Hospital and during course of his treatment, Niwaran Mahto died on 26.03.2001.

On the basis of the fardbeyan, Baghmara (Mahuda) P.S. Case No. 57/2001 was initially registered under Sections 341, 323, 324, 307, 448/34 of the IPC against all the three named accused persons which was later amended by adding Section 302 of the IPC. Police on investigation, found the case true and submitted charge sheet. The accused persons were jointly charged for the offences under Sections 341, 448, 324, 307 and 302 of the IPC.

Altogether nine witnesses have been examined on behalf of prosecution and the relevant documents including post mortem examination report and injury reports have been adduced into evidence and marked as exhibits.

After the prosecution evidence, statement of the appellants were recorded under Section 313 of the Cr.P.C. Defence is of innocence, but no specific defence has been pleaded.

Judgment of conviction and sentence has been assailed on the ground that appellant nos.1 and 2 are aged persons around 56 and 50 years respectively, they have been roped into the case only on suspicion. The incidence took place on spur of moment without any pre-mediation and therefore, the prosecution has failed to prove the intention to cause death.

Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that the incidence took place in the house of the informant and therefore, the family members were the natural witness. Apart from Niwaran Mahto, who died of the injuries sustained by him, Binod Mahto, Jhumri Devi, and Pada Devi and Laddu Mahto also sustained injuries who were examined by the Doctor and their injury report have been proved as Exhibit 7, 7/1, 7/2, 7/3 and 7/4 respectively. These injured witnesses have been examined as P.W. 1, P.W. 2, P.W. 3 and P.W. 7. They have given a consistent account regarding the manner of assault in which the informant party was assaulted by the appellants.

FINDING

Law is settled that the testimony of injured witnesses deserves a higher degree of credence, because their presence is assured at the place of occurrence. This does not mean that whatever has been stated by the injured witnesses is to be accepted as gospel truth. Their testimony like any other testimony needs to be scrutinized with caution to avoid false implication on account of exaggeration.

In order to accept the testimony of the injured witnesses that all the three appellants were involved in the assault, the post-mortem examination and injury reports need to be considered which are as under:

Injuries sustained by Binod Mahto are as under: -

I. Incised wound left side of neck 4 ½”x 2” x bone deep cutting muscles, vessels, nerves and bone.

II.  L/W left lateral chest wall 2⅓" x ½”x muscle deep.

III. Incised wound base of left thumb 1⅓" x ¼”x bone deep. X-ray advised.

IV. I/W left arm 2” x 1/6” x fat deep.

V. I/W right thigh anteriorly 2 ½”x 1/2 ”x fat deep.

VI.  I/W dorsum of right hand 1” x 1/3”muscle deep.

Injury Nos.II, IV, V and VI are simple. Injury No.II was caused by hard and blunt substance and others were caused by sharp cutting weapon.

Ø  Injuries sustained by Niwaran Mahto (deceased) are as under: -

I. Incised wound over vertex of scalp 3”x 3/4”x bone deep with cut in bone. X-ray advised.

II. Abrasion left shoulder 2” x 1/3”.

Injury No.I was caused by sharp cutting weapon and injury no.II was simple caused by hard and blunt substance.

Injuries sustained by Jhumri Devi is as under :-

I. Incised wound left shoulder blade 4” x 1 ¼”x bone deep with cut in bone. X-ray advised.

II. Incised wound left forearm 1 ¼”x ½”x muscle deep

Injury No.II was simple and caused by sharp cutting weapon.

Injury sustained by Poda Devi is as under :-

I. A lacerated wound right index finger ¼”x 1/6”x skin deep. Nature of injury- Simple and caused by hard and blunt substance.

Injury sustained by Laadu Mahto is as under :-

I. Abrasion left arm 2½”x 1”with surrounding diffuse, tender  swelling. X-ray advised

II. Tender swelling base of left thumb x-ray advised

III. Incised wound left little finger ½”x 1/6”x skin deep

IV. Incised wound left ring finger 1/3” x 1/6” X skin deep.

V. L/W right little finger ¼”x 1/6”x skin deep.

VI. Incised wound scalp over frontal region ¾”x 1/6”x skin deep.

Injury Nos. III, IV, V and VI are simple and caused by hard and

blunt substance and sharp cutting weapon.

Autopsy Surgeon (P.W. 6) has found following ante-mortem  injuries on the dead body of Niwaran Mahto: -

I. Abrasion 1” x ¼” on left side under surface of chin.

II.  Multiple abrasion in an area of 2 ½“ x 2” on right side of temple.

III. Stitched wound 3½” long, seven stitches on the left side parietal region of head.

As per the prosecution evidence, Dwarika Mahto was holding a Trishul which has usually three pointed shafts. Injury inflicted by Trishul, will cause three parallel perforated wounds and not an incised wound. None of the injured sustained such an injury. Therefore, the evidence that appellant- Dwarika Mahto was also involved in the assault, cannot be accepted.

So far as appellant- Mohini Devi is concerned P.W. 1 has stated that she inflicted Tangi blow over his thigh and corresponding injury was noted by the Doctor in the injury report (Exhibit 7). P.W. 2 has also deposed that the Mohini Devi had inflicted injury over her hand. None of the witnesses have deposed that she had inflicted any injury to Niwaran Mahto who died as a result of assault.

From the combined reading of the testimony of witnesses, it is evident that it was Santosh Mahto who was the main assailant had inflicted fatal blow to the deceased Niwaran Mahto and also inflicted injuries to the other persons with sword. As discussed above, there is also evidence that Mohini Devi inflicted Tangi blow to the informant, P.W. 1 and Jhumri Devi (P.W. 2).

It is common intention to commit the crime which prerequisite to attract Section 34 of the IPC. Such a common intention should be anterior in point of time to the commission of the crime. It is difficult, if not impossible, to procure direct evidence of such intention. In most cases it has to be inferred from the act or conduct of the accused. Expression a criminal act done in furtherance of common intention does not mean that several persons do the same act, which is physically impossible. It only means that several persons commit separate act which may be similar or diverse. Same or similar intention should not be confused with common intention: as their Lordships said in Mahbub Shah’s case (AIR. 1945 P.C. 118), “the partition which divides that “their bounds” is often very thin; nevertheless, the distinction is real and substantial, and if overlooked, will result in miscarriage of justice.” The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly. A pre-concert of mind can develop suddenly without any pre-meditation.

It is evident that the incidence took place at the spur of moment when the informant started digging foundation in his courtyard, which led to hot exchange between both sides and culminated in incidence. In the present case, similar intention to resist the digging of foundation, cannot be equated with the common intention to cause death. Appellants were actuated and aligned with common object to oppose the digging of foundation by the informant side. In order to bring the object of resistance to its fruition, each acted in their own way. There is a difference between ‘common intention’ and ‘similar intention’ and the totality of the evidence do not suggest common intention on the part of appellants- Dwarika Mahto and Mohini Devi to cause death. I am of the view that facts do not justify application of Section 34 of the IPC. Each of the appellants therefore, will be liable for their individual acts.

Under the circumstance, conviction and sentence of appellant-Santosh Mahto under Section 302 of the IPC for causing the death of Niwaran Mahto, is affirmed. He is further convicted and sentenced under Section 326 of the IPC for causing grievous injury to the other injured persons and sentenced to five years RI and fine of Rs.5000/-. In default of payment of fine, will undergo SI of one month. Substantive sentences to run concurrently. Conviction and sentence under Section 307 of the IPC is set aside.

Mohini Devi is convicted and sentenced under Section 326 of the IPC and considering her age and antecedent, she is sentenced to the period already undergone. Conviction and sentence under Section 307 of the IPC is set aside.

Dwarika Mahto is given benefit of doubt. Judgment of conviction and sentence against him is set aside and the appeal preferred him, is allowed.

Criminal Appeal is partly allowed with modification in finding and sentence.

Appellant- Santosh Mahto is on bail, his bail stands cancelled. He is directed to surrender before the trial Court to serve the remaining part of sentence.

Appellant- Dwarika Mahto and Mohini Devi are on bail. Their sureties are discharged from the liabilities of their bail bonds. Considering the assistance given by learned Amicus Curiae, we hereby direct the Member Secretary, JHALSA, Ranchi to pay remuneration of Rs.7500/- to him at the earliest.

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.