Dismissed

Bisam Mahto v. State of Jharkhand

Jharkhand HC18 Feb 2015Cr.A(DB)/1685/2004

Case brief

AI extract

What is this about?

In this criminal appeal against conviction and sentence for murder, the High Court examined if the trial court erred in convicting the appellant despite defense arguments regarding missing investigation details and lack of weapon seizure. The Court upheld the conviction, finding the eye-witness testimony trustworthy and corroborated by post-mortem reports and other evidence.

What did the court decide?

The appeal was dismissed, the impugned judgment of conviction and sentence was affirmed, and there was no infirmity in the impugned judgment found.

Bisam Mahto Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2015)

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Cr. Appeal (DB) No. 1685 of 2004

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Against the judgment and order of conviction and sentence dated 11.08.2004 and 12.08.2004 respectively passed by Sri Prasanna Kumar Dubey, 1^st Additional Judicial Commissioner, Khunti, in Sessions Trial No. 429 of 2002.

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Bisam Mahto, son of Maheshwar Mahto, resident of village – Gango, P.S. Tamar, District – Ranchi … Appellant Versus The State of Jharkhand … Respondent

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For the Appellant : M/s Gautam Kumar, Suraj Deo Munda & Birad Kumar, Advocates

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For the Respondent : Addl P.P.

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PRESENT

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HON’BLE MR. JUSTICE R. R. PRASAD HON’BLE MR. JUSTICE RAVI NATH VERMA

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By Court : This appeal is directed against the judgment of conviction dated 11^th August, 2004 and order of sentence dated 12.08.2004 passed by 1^st Additional Judicial Commissioner, Khunti, in Session Trial no. 429 of 2002 whereby and whereunder, the court having found the appellant guilty of committing murder of Fulmani Devi, the mother-in-law of the informant, and Gopi Mahto, son of the informant, convicted him for the offence punishable under section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- with a default clause.

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2 The case of the prosecution is that the informant Choudhary Mahto, PW5 was residing in her in-laws' place as ' ghar- jamai ' along with his father-in-law, mother-in-law, wife and his 3-year old son. On 19.04.2002, while he was working in his courtyard along with his wife Saraswati Devi, PW4, they heard gagging sound coming from inside the house. On hearing this, he along with his wife came rushing inside the house where they saw the appellant assaulting indiscriminately his mother-inlaw and son. When they raised alarm, the appellant fled away from there towards the field. The mother-in-law and the son died immediately as several injuries on their persons had been inflicted by the appellant by a Tangi. His wife started crying, upon which, several villagers came over there who told him that

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they had seen the appellant fleeing away from there. Meanwhile, his father-in-law (PW7) came home from the field and told the informant that he had seen the appellant fleeing towards Rargaon.

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3 Meanwhile, on the same day i.e. on 19.04.2002, Vedanand Jha (PW9), Officer In-charge, Tamar P.S. received rumor that two persons have been killed in village Gango. He made Entry of such information in the Station Diary and left for the village Gango where he reached at 4 O’clock and when he found the dead bodies lying in the courtyard of the house of the informant, he recorded the fardbeyan (Ext. 3) of Choudhary Mahto PW5, wherein PW5 stated about the occurrence as has been stated above with a motive that the appellant committed such offence as his father-in-law had refused to give land to the appellant who happens to be his nephew and as such, he was carrying grudge against them. The Investigating Officer took the matter for investigation.

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4 During investigation, the Investigating Officer did find number of injuries on the persons of both the deceased. Accordingly, he prepared inquest report after holding inquest on the dead bodies of both the deceased and entered it into the Case Diary (not prepared separately). During inspection of the place of the occurrence, he found blood at the place of occurrence below the cot over which the deceased were sleeping at the time when they were killed. Thereupon, he sent the dead bodies for post-mortem examination. The Dr. R. K. Sinha (PW8) upon holding the autopsy on the dead body of Fulmani Devi did find the following injuries on her person :-

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incised wounds;

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(i) 20 cm x 2 cm x bone deep front of face cutting the soft tissues, nasal bone both auxiliary bones and left mandible bone partially;

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(ii) 12cm x 2cm x bone deep on the chin cutting the underline mandible bone completely;

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(iii) 12 cm x 2 cm x bone deep upper part of front of neck situated transversely cutting the soft tissues, blood vessels trachea, esophagous and 4^th survical vertebra including spinal cord;

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(iv) 8 cm x 2cm x soft tissue, front of neck middle part.

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(v) 8 cm x 2cm x soft tissue medial side of right area lower part;

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(vi) 7xm x 1cm x bone deep medial side of right forearm middle cutting the ulna bone underneath;

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(vii) 5cm x 1cm x soft tissue and 6 cm x 1cm x soft tissue front of right forearm lower part cutting the tendons and blood vessels

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(viii) 8cm x 1cm x bone deep on right palm cutting the underline bone

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(ix) 7cm x 1cm x bone deep left elbow back cutting the lower part of numerous and upper part of ulna bone;

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(x) 6cm x 1cm x soft tissue and 5cm x 1cmx soft tissue and 4” x 1cm x soft tissue right knee in the medial side;”

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5 The doctor (PW8) issued post-mortem report ( Ext. 2) with an opinion that the death was caused due to above-noted injuries caused by heavy sharp cutting weapon such as Tangi.

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The doctor after holding autopsy on the dead body of Gopi Mahto, aged about three years, did find the following injuries :-

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(i) 8cm x 1xm x bone deep on left parietal region of head cutting the underline bone partially;

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(ii) 15xm x 2cm x bone deep on the back of neck of upper part situated transversely cutting the soft tissue, blood vessels, 2^nd cervical vertebra and spinal chord in esophagus and trachea. The head is attached with the body by means of ……………

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(iii) 6cm x 1cm x bone deep on left chick cutting the soft tissue and left mandible bone;

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(iv) 3xm x ½ cm x soft tissue over left temple

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(v) 20x x4cm x bone deep on the base of front part of neck cutting the soft tissues, blood vessels, 5^th and 6^th cervical vertebra including spinal chord;

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(vi) 30cm x 2cm x bone deep on back of chest upper most part extending from left shoulder to right shoulder cutting the soft tissue; 7^th cervical vertebra partially and both scapula and head of both humerus bones partially;

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(vii) 8cm x 1cm x bone deep on back of chest cutting the soft tissues and 1^st thorasic vertebra partially;

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(viii) 9cm x 1 cm x bone deep on back of chest cutting the soft tissue and 2^nd thorasic vertebra;

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(ix) 20cm x 1 cm x bone deep back of chest cutting the soft tissue, 4^th thorasic vertebra and 4^th and 5^th ribs on both sides;

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(x) 6cm x 1 cm x bone deep right shoulder front cutting the right numeros bones partially;

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(xi) 8cm x 2cm x soft tissue right chest back lower part;

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The doctor (PW8) issued post-mortem report ( Ext. 2/1) with an opinion that the death of the deceased was caused due to above-noted injuries caused by heavy sharp cutting weapon such as Tangi.

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6 On completion of the investigation, charge-sheet was submitted upon which conginzance of the offence was taken and when the case was committed to the court of sessions where the accused/ appellant was put on trial.

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7 During trial, the prosecution examined as many as nine witnesses. Of them, PW1 Jit Mohan Mahto; PW3 Sudan Mahto; PW6 Doma Mahto and PW7 Kartik Mahto are hearsay witnesses. However, PW7 has also testified that while the appellant was running away, he was declaring that he has killed two persons and will be killing two more. The informant (PW5) and the wife of the informant (PW4) are the eye-witnesses who have testified that while they were working in their courtyard, they heard gagging sound coming from inside the house and on hearing this, when they rushed inside the house, they found the appellant assaulting the deceased Fulmani Devi and Gopi Mahto. When they raised alarm, the appellant fled away from there.

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8 After the case of the prosecution was closed, incriminating evidences appearing against the appellant were put to the accused under section 313 Cr. P. C which he denied. There upon the trial court having found PW4 and the informant (PW5) trustworthy and recorded the order of conviction and sentence which is under challenge in this appeal. 9 Mr. Gautam Kumar, learned counsel appearing for the appellant, submits that the investigating officer has not been examined in this case, factum of which has been recorded by the trial court itself and since the investigating officer has not been examined, it could not be ascertained as to whether the occurrence has taken place at the place where eye-witnesses claimed to have taken place or elsewhere. However, in the midst of argument when it was pointed out to him that the investigating officer has been examined as PW9, he was quite

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surprised and then submitted that the tangi, the weapon used in commission of the offence has not been seized by the police and that the manner in which occurrence is said to have taken place, a number of villagers normally would have assembled over there, but only a few seems to have reached at the place of the occurrence which gives indication that the occurrence may not have taken place in the manner it was projected and that the evidence of the eye witnesses never appear to be clinching and as such the court should not have believed their testimonies, but the court has relied upon their testimonies and thereby the trial court committed an illegality in convicting the appellant and hence the judgment of conviction and order of sentence is fit to be set aside.

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10 As against this, learned counsel appearing for the State submits that there have been no reasons at all to disbelieve the testimonies of Pws. 4 and 5, who while were working in the courtyard, came rushing inside the house when they heard the gagging sound and saw the appellant assaulting the decease and the testimonies of the these two witnesses get corroboration from the medical evidence and thereby, the trial court was absolutely justified in recording the order conviction and sentence.

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11 Having heard learned counsel for the parties and on perusal of the record, we do find that out of nine witnesses, the two witnesses i.e. the informant (PW5) and his wife (PW-4) are the eye witnesses. Rest of the witnesses appear to be hear-say witnesses. Coming to the testimony of the eye-witnesses, we do find that according to Pws. 4 and 5, while they were working in the courtyard they heard some sound coming from inside the house and when they went there, they found the appellant assaulting Fulmani Devi, the mother-in-law of the informant (PW5) and Gopi Mahto- 3 years old son of the informant and on their persons, several injuries had been inflicted by the appellant. Seeing all this, when they raised alarm, the appellant fled away from there. While the appellant was fleeing, he was seen by PW2, who had gone to the house of his daughter and had been returning from there, he saw the appellant with a

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weapon. Apart from PW2, PW7 had also seen the appellant running away. According to PW7, while the appellant was running away, he was declaring that he has killed two persons and will be killing two more. The defence in the cross-examination by drawing attention to his earlier statement suggested that he had not given such statement before the police but the answer was that he had made such statement before the police. But the defence has not put any question when the investigating officer was examined to confirm as to whether PW7 had made such statement or not. In that event, it can be taken that PW7 had earlier made such statement before the police that he heard the appellant saying that he had killed the two persons and in that event, such statement being spontaneous can be taken to be relevant under section 6 of the Evidence Act. That apart, the testimonies of the eye-witnesses ( Pws.4 and 5 ) do find corroboration from the medical evidence, as the doctor has found number of injuries on the persons of both the deceased which were caused by heavy sharp cutting weapon like tangi. Furthermore, the testimony of the witnesses gets corroboration from the objective finding of the investigating officer ( PW9) who did find blood below the cot over which both the deceased were sleeping when they were assaulted.

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Under the circumstances, we do find that the trial court was absolutely justified in recording the order of conviction and sentence of the appellant in Sessions Trial No. 429 of 2002. We do not find any infirmity with the impugned judgment which is hereby affirmed.

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This appeal stands dismissed.

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Jharkhand High Court, Ranchi, dated : 18.02.2015 Ambastha/Smitha/NAFR

Bisam Mahto v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Bisam Mahto v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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