Dismissed

Mahru Mahto And Ors. v. State of Jharkhand

Jharkhand HC17 Sept 2018Cr.A(SJ)/593/2003

Case brief

AI extract

What is this about?

The High Court dismissed a criminal appeal challenging the conviction and three-year sentence for Section 304 Part II IPC. The Court held that despite discrepancies in the fardbayan, the consistent testimony of five eye-witnesses and the post-mortem report confirmed strangulation by the appellants, sustaining the conviction.

What did the court decide?

Judgment of conviction and order of sentence sustained; bail bonds cancelled; appellants to be arrested to serve remaining sentence.

Mahru Mahto And Ors. Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2018)

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CRIMINAL APPEAL (SJ) NO. 593 OF 2003

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Against the judgment of conviction and order of sentence dated 31.03.2003 and 01.04.2003 respectively passed in S.T. No. 208 of 1998 by learned Additional Sessions Judge, Fast Track Court-3, Hazaribagh.

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Mahru Mahto, son of Late Hira Mahto

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Shambhu Mahto, son of Mahru Mahto

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Anil Mahto, son of Narayan Mahto, all residents of village Pakrar, P.S.- Katkamsandi ( Pelawal) District-Hazaribagh .......Appellants

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Vs. The State of Jharkhand ........Respondent

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For the Appellant: Mr. Hemant Kumar Shikarwar, Advocate Mrs. Manimala, Advocate For the State: Mr. Vijay Kumar Gupta, APP

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PRESENT

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HON'BLE MR. JUSTICE RATNAKER BHENGRA

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By Court: Heard both the counsels.

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2 . This criminal appeal is directed against the judgment of conviction and sentence dated 31.03.2003 and 01.04.2003 respectively passed in S.T. No. 208 of 1998 by learned Additional Sessions Judge, Fast Track Court-III, Hazaribagh whereby and whereunder all the appellants have been convicted under section 304 Part II of the Indian Penal Code and have been sentenced to undergo R.I. for three years. The period already undergone was ordered to be adjusted towards the period of conviction.

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The prosecution case as per the fardbayan of the informant Bandhan Mahto-P.W. 10 is that Bansi Mahto the brother of informant is ‘mausera sarhu’ of co-villager Baleshwar Mahto. A dispute was going on between Baleshwar Mahto and his own brother Mahru Mahto regarding distribution of ornaments of their mother. There was partition between these two brothers but their mother lived with accused Mahru Mahto. The further case of the prosecution is that Baleshwar Mahto used to allege that Mahru had kept entire jewellery of mother

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and for the same both the brothers used to quarrel. On the day of occurrence i.e. on 13.03.1997 at about 7.30 O'clock evening both brothers, Mahru and Baleshwar were quarreling then informant's brother Bansi Mahto went there. Thereafter informant and informant's father Jhari Mahto also came out of their house. Accused Mahru understood that Bansi came to help his 'mausera sarhu or Baleshwar. Accused Mahru, his son Shambhu and his two nephew Anil Mahto and Shankar Mahto surrounded Bansi Mahto in khori ( Village path) and started pelting stone and bricks. They threw Bansi Mahto on earth, assaulted him with fist and blows and one of them strangulated him to death. Informant sustained injury on his back and belly by stone pelting and Baleshwar sustained injury on his neck and cheek.

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On the basis of fardbayan of the informant Katkamsandi P.S. Case No. 24 of 1997 was lodged under section 302/34 of the Indian Penal Code. After investigation charge sheet was submitted against the accused persons under section 302/34 IPC. The case was committed to the court of sessions and charge was framed under section 302/34 of the Indian Penal Code against the three accused persons or the appellants herein. Trial was conducted and after conclusion of the trial, the accused persons or appellants herein were convicted and sentenced as aforesaid. Hence, this appeal.

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Prosecution examined altogether ten witnesses in support of its case. P.W. 10 Bandhan Mahto is the informant of the case and brother of deceased Bansi Mahto. P.W. 1 Baleshwar Mahto is 'mausera sarhu' of the deceased Bansi Mahto. P.W. 2 Guriya Kumari and P.W. 3 Budhani Devi is the daughter and wife of the informant respectively. P.W. 6 Lalita Devi is the wife of the deceased

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Bansi Mahto. P.W. 4 Basudeo Mahto is a hearsay witness and P.W. 5 Jagdish Mahto is a hostile witness. P.W. 8 Magan Mahto is the ex-mukhiya of the village and he is a fardbeyan witness as well as inquest report witness. P.W. 8 has proved the signature on the fardbeyan which was marked as Ext.-2 and also proved his signature on the inquest report which was marked as Ext.-2/1. P.W. 9 is Shyamlal Mahto who is also a inquest report witness. He has proved his signature on the inquest report which was marked as Ext.-2 /3. He also recognized the signature of the informant Bandhan Mahto on the fardbeyan which was marked as Ext.-2/2. P.W. 7 is Dr. Mahendra Prasad Choudhary who conducted post mortem on the dead body of the deceased.

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P.W. 10 Bandhan Mahto is the informant of the case and he is the brother of the deceased. He stated that occurrence took place on 13.03.1997 at about 7.30 p.m. in the evening. Accused Mahru Mahto was saying filthy words upon which Balo came out from the house and asked as to why he was saying filthy words. Then accused Anil Mahto, Shankar Mahto, Shambhu Mahto and Mahru Mahto started pelting stones upon him. Balo sustaiend bricks injury on his cheek. Bansi told them not to quarrel and settle dispute by dialogue but the accused persons did not listen. All the four accused persons surrounded Bansi Mahto and started strangulating him. The informant ran to rescue but accused persons fled away and Bansi died on the spot itself.

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P.W. 1 Baleshwar Mahto is 'mausera sarhu' of deceased Bansi and own brother of accused(appellant herein) Mahru Mahto. He stated that on 13.03.1997 at about 7.30 O'clock evening , he returned from market

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and was in his home. Then his brother accused Mahru came out of his house and told him that he will kill him. Thereafter P.W. 1 came out of his house then Mahru Mahto, Shambhu Mahto, Anil Mahto and Shankar Mahto caught him and threw him on the earth and started assaulting him. In the meantime, his 'mausera sarhu' Bansi Mahto came and told accused Mahru Mahto not to quarrel and settle the dispute by dialogue. Thereafter accused persons left him and strangulated Bansi Mahto to death.

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P.W. 2 Guriya Kumari is the daughter of informant. She stated that on the date of occurrence she was in gali . Balo Mahto and Mahru Mahto were quareling for jewellery of their mother. Then her uncle Bansi Mahto came and tried to stop the quarrel but accused Mahru Mahto, Anil Mahto and Shambhu and Shankar Mahto surrounded him and threw him on the earth and strangulated him to death.

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P.W. 3 is Budhani Devi, the wife of informant. She stated that on the day of occurrence she was in front of her door. Balo Mahto and Mahru Mahto were quarreling for jewellery. Balo Mahto said accused Mahru not to quarrel. Then Mahru Mahto started pelting stones on Balo Mahto. When Mahru Mahto was assaulting Balo Mahto then her dever ( deceased Bansi) went to mitigate the dispute but Mahru Mahto, Shankar Mahto, Anil Mahto and Shambhu Mahto strangulated Bansi to death.

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P.W. 6 is Lalita Devi, wife of deceased Bansi Mahto. She stated that on the night of occurrence at about 7 O’ Clock her husband Bansi Mahto was taking dinner with her then they heard sound of quarrel between Mahru Mahto and Balo Mahto and hearing noise her husband went to settle the dispute then

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accused Mahru Mahto, Shambhu Mahto, Anil Mahto and Shankar Mahto assaulted her husband Bansi Mahto and strangulated him as a result her husband died.

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P.W. 7 is Dr. Mahendar Pd. Choudhary. He is medical officer who conducted post-mortem on the dead body of deceased Bansi Mahto. He found following injuries on external examination of person of deceased: I. Abrasion 3”x1” on the right shoulder

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ii.Abrasion 1/2”x1/2”x on chin

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iii. Bruise 1”x1” on right upper arm

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iv. Abrasion 1/2”x1/2” on neck below right ear with swelling 2”x2”.

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He has proved the post mortem report to be in his signature which was marked as Ext. 1. He opined regarding cause of death to be asphyxia cause by strangulation.

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ARGUMENTS OF THE APPELLANTS

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Learned counsel for appellants has first taken us to the evidences of P.W. 1 Baleshwar Mahto and submitted that strangulation is introduced in the evidence of P.W. 1, though it is not in the fardbeyan. Learned counsel then pointed out to the deposition of P.W. 1 where he says he did not receive any injury and therefore he was not examined by any doctor and submitted that this is in variation to the fardbeyan where in it was stated that he was assaulted. Learned counsel further submitted that it has been said in the deposition of P.W. 1 that around 10-15 other persons had arrived or were present at the place of occurrence but these persons have not been examined. Counsel also points out that P.W. 1 deposed that he went to the police station and gave information but this fardbeyan was withheld and this was actually the first fardbeyan which was suppressed. Learned counsel argues that the second

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fardbeyan is actually statement under section 161 of the Cr.P.C. and submitted that the current fardbeyan does not bear his signature.

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Learned counsel has then referred to the evidence of P.W. 2 Guriya Kumari and submitted that she also claimed to be an eye witness but she deposed that it was dark at the place of occurrence and no one else was there. Counsel for the appellants says that if P.W. 2 says that it was dark then it was not possible for her or for anyone else to have actually seen the assailants and hence she is not an eye witness to the occurrence. This witness in paragraph 10 of her evidence deposed that after the accused fled away then her father came. Learned counsel thus submitted that her father Bandhan Mahto is also not an eye witness.

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Learned counsel has then referred to the evidence of Budhani Devi P.W. 3, who is informant Bandhan Mahto's wife. Learned counsel submitted that she has deposed that all four accused persons , pressed the neck of the deceased and murdered him but this is not possible and it is absurd to say that all four can be pressing his neck at the same time. Learned counsel further submitted that this witness had also in paragraph 10 stated that on the day of occurrence she was sitting with her husband and no one else was there. Counsel for the appellants here says regarding this statement of P.W. 3 that if except this witness and husband no one else was there then it would indicate that P.W. 2 who is the daughter of the informant could not have been there also.

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Learned counsel for the appellant then referred to the evidence of P.W. 4, one Basudeo Mahto and said that he is simply a hearsay witness because he reached the place on alarm and when he reached the

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place he had simply found Bansi Mahto dead. Learned counsel then submitted that P.W. 5, Jagdish Mahto is hostile witness.

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Learned counsel for the appellant has then referred to the evidence of P.W. 6 Lalita Devi who is wife of the deceased Bansi Mahto and argued that she had stated on the day of occurrence it was a dark night and she was eating food with her husband. They heard fight taking place between Mahru Mahto and Baleshwar Mahto. Learned counsel here submitted that this witness had stated that it was dark night and therefore the assailants could not have been seen. This witness has then stated in her evidence that subsequently her husband went to mitigate the fight and here learned counsel submitted that she herself has not said that she had gone out to the place of occurrence and seen what had transpired or was taking place.

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Learned counsel for the appellants then referred to the evidence of doctor P.W. 7 who conducted the post mortem examination of the deceased. Counsel argued that the main allegation regarding the cause of death is strangulation but in the evidence of the doctor, doctor has mentioned three other external injuries which are not mentioned in the fardbeyan and neither they have been stated in the evidences of other prosecution witnesses. Learned counsel submitted that the medical record does not really corroborate the fardbeyan or the evidences of the prosecution witnesses because the aforesaid external injuries have not been indicated or explained earlier. Therefore when there is a variation between the ocular evidence and medical evidence then grave suspicion is cast on the prosecution case.

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Learned counsel for the appellant has then referred to the evidence of P.W. 10, who is the informant

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Bandhan Mahto and submitted that there is lot of description regarding the assault made by the appellants in his evidence but these descriptions are not in the fardbeyan and therefore the fardbeyan and the evidence of informant do not tally with each other and are therefore not corroborative of each other. Learned Counsel also argued that P.W. 9 is brother-in-law ( sala ) of the deceased who informed the police. However, it has also come in the evidence that the police had come and then took the statement of the informant and then the case was lodged or FIR was registered. Learned counsel for the appellants submitted that the basis for the FIR should have been the version of P.W. 9 the relative of the deceased rather than the version of events as stated by the current informant P.W. 10 Bandhan Mahto. In the absence of the original information given by P.W. 9 the fardbeyan of the informant become doubtful because it is not known as to what was contained in information given to the police by the brother-in-law of the deceased or P.W. 9. Learned counsel for the appellants also argued that informant had also mentioned the name of many other persons who resided in the location of the place of occurrence, or, in the vicinity but non of them have been examined as independent witness and their non-examination and only reliance on interested witnesses throws much doubt on the prosecution case.

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In addition to highlighting lacunaes in the evidences of the prosecution witnesses, learned counsel for the appellants has also summarized his arguments with the following points:-

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i. Post-mortem report of the deceased is not corroborated by the ocular evidence of the prosecution witnesses.

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ii. When the allegations are of strangulation and there is also mention of three other external injuries in the

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evidence of doctor , therefore, these three other external injuries should also have been explained by the prosecution.

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iii The I.O. Of this case has not been examined and hence non-examination of the I.O. has prejudiced the appellant because there are many inconsistencies and contradictions in the evidence of prosecution witnesses and appellants did not get opportunity to crossexamination the I.O. regarding the place of occurrence, the weapons that may have been used if any and as to how the assault had taken place.

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ARGUMENTS OF THE APP

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Learned counsel for the State, learned APP Mr. Vijay Kumar Gupta, has however, on the other hand argued that the offence is serious one as appellants were convicted under section 304 Part II of the IPC and the appellants cannot escape the conviction and sentence that has been rightly imposed by the learned trial court below. Learned counsel for the State has argued that though death has taken place but the appellants had only been convicted for three years R.I and considering the fact that death has taken place, by such lessor sentence appellants have already been leniently punished and therefore judgment of conviction and order of sentence passed by the learned court below should be upheld. The consistent evidence of the prosecution witnesses are that strangulation had taken place and it is supported by the evidence of the doctor or P.W. 7 that death took place due to asphyxia due to strangulation.

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Learned counsel for the State, referred to the evidence of P.W. 1 Baleshwar Mahto and submitted that he is an eye witness and pointed out from his evidence that all the four appellants have assaulted the deceased and then they had strangulated him. The motive behind

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the occurrence is the distribution of jewelry between the appellants side and this witness or P.W. 1. Learned counsel has then referred to the evidence of P.W. 2 Guriya Kumari and submitted that she is also an eye witness to the occurrence and she has stated that the incident occurred at around 7 p.m. in the gali and that Baleshwar and Mahru were arguing over their mother's jewelry and then Bansi Mahto went to pacify them and then all the accused persons threw him down and strangulated him as a result Bansi died on the spot itself. Learned counsel then referred to the evidence of P.W. 6 Lalita Devi who is the wife of the deceased and submitted that she has also deposed that on the day of occurrence Baleshwar Mahto and Mahru Mahto were quarreling then her husband went to pacify at which all the accused strangulated him.

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Learned counsel for the State then referred to the evidence of P.W. 10 Bandhan Mahto, the informant of the case who stated that the incident occurred on 13.3.1997 around 7.30 p.m. Mahru Mahto, Anil Mahto, Shankar Mahto and Shambhu Mahto all started pelting stones on Baleshwar or P.W. 1. Then Bansi Mahto tried to pacify both parties but the appellants herein surrounded Bansi Mahto and strangulated him as a result Bansi died. Learned counsel has also referred to the evidence of P.W. 3, Budhni, who is sister-in-law of the deceased. She stated that on the day of occurrence she was at home and quarrel was going on between Baleshwar and Mahru regarding jewelry and hence she went outside. Mahru started pelting stone on Baleshwar or P.W. 1 then her devar ( Bansi Mahto) went to pacify them at which all the appellants strangulated Bansi Mahto by pressing his neck.

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Learned counsel for the State has then referred to

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the evidence of P.W. 7 Dr. Mahendar Pd. Choudhary who conducted post mortem on the dead body of the deceased Bansi Mahto and pointed out the injuries on the person of the deceased as follows:-

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i. Abrasion 3”x1” on the right shoulder

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ii. Abrasion ½”x1/2”x on chin

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iii. Bruise 1”x1” on right upper arm

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iv. Abrasion ½”x1/2” on neck below right ear with swelling 2”x2”.

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Counsel for the State then submitted that the doctor had given opinion that death was caused due to asphyxia caused by strangulation. Thus the ocular evidence of prosecution witnesses are supported by the medical evidence of doctor or P.W. 7 that strangulation was done by the accused person or appellants herein. This is the single common line running through the evidence of all or most of the prosecution witnesses. Lastly, learned counsel for the State submitted that impugned judgment of conviction and sentence passed by the learned court below is based on evidence and hence requires no interference.

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FINDINGS

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Having gone through the records of the case; gone through the evidences; having heard both counsels and in the facts and circumstance, I find that the learned counsel for the appellants has taken us rather exhaustively through the evidence of the prosecution witnesses and showed us many inconsistencies in the individual evidences of the prosecution witnesses. However, learned counsel for the appellant has not been able to dislodge the fact of occurrence of the crime or the assault on the deceased resulting in his death due to strangulation.

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In this case there are at least five eye witnesses ,

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P.W. 1 Baleshwar Mahto, P.W. 2 Guriya Kumari, P.W. 3 Budhani Devi who is the sister-in-law of the deceased, P.W. 6 Lalita Devi who is the wife of deceased and P.W. 10 Bandhan Mahto who is the brother of the deceased and is the informant himself, who have pointedly said that strangulation was done by the appellants.. Apart from these witnesses P.W. 7 who conducted the postmortem examination on the deceased has also said that death occurred due to strangulation. Therefore, ocular evidence of the five eye witnesses is supported by the medical evidence of the doctor P.W. 7 that appellants had strangulated the deceased.

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The aforesaid eye witnesses that have been examined have given evidence that appears reliable and trustworthy even though these witnesses may be considered family or interested witnesses. The learned counsel for the appellants tried to argue out that in one instance it has been alleged that all the appellants had strangulated the deceased at the same time which is simply not possible. Regarding this, I consider that the allegation regarding strangulation by all of the accused persons or appellants herein is more made in the sense that accused persons or the appellants were part of the assault and strangulation was being done by them. Subsequently from the evidence of the doctor also it has been revealed that death was caused by asphyxia due to strangulation, therefore, the reference to strangulation being done by the accused or the appellants has to be seen in that view of the matter.

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Regarding the element of motive in this case it can be accepted that the motive was very trivial as argument over distribution of mother's gold jewelry is no reason for committing such heinous crime. On this point this court would agree with the submission of the learned counsel

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for the appellant but it is for this very reason that an altercation had taken place between the two sides or the two own brothers and it was over this trivial issue that ultimately death had occurred. There is no serious and severe motive and therefore it can be said that there was no real intention to kill or murder the deceased, however acts of the appellants i.e. assaulting and strangulating the deceased were within the knowledge of the appellants that it is likely to cause death of Bansi Mahto.

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The human body reacts to assaults in different ways. If one is a sturdy , strong and healthy person then the body is liable to withstand more severe assaults, however, if the person is not so sturdy and is not very healthy then his body may not stand the same amount of force applied to his body. In this case, it is apparent that the deceased was not able to withstand the assault made by the accused persons or the appellants herein and it resulted in his death. On the external examination of the body of the deceased by the doctor P.W. 7 four injuries were found which are indicated as abrasion on the right shoulder, abrasion on chin, bruise on right upper arm and lastly abrasion on neck below right ear with swelling. The doctor P.W. 7 has given the definite opinion that death was caused by asphyxia caused by strangulation. Therefore, the ocular evidence of the eye witnesses are supported by the medical evidence of the doctor and the reasons for death is rather conclusive. Hence, the appellants are found guilty under section 304 Part II IPC.

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29 . Lastly I note that the learned counsel for the State has rightly argued that death had occurred and appellants were imposed rather lenient sentencing, to the extent of three years R.I., therefore appellants have already been leniently punished though death had

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occurred in the family of informant side and hence no leniency should be allowed to the appellants further. 30. Hence, the the judgment of conviction dated 31.3.2003 and the order of sentence dated 01.04.2003 passed in S.T. No. 208 of 1998 by the learned Additional Sessions Judge, Fast Track Court-III, Hazaribagh whereby the appellants are convicted under section 304 Part II of the Indian Penal Code and sentenced to undergo R.I. for three years is sustained and is upheld. The bail bonds of the appellants are cancelled. The learned trial court below is directed to take steps for procuring the arrest of the appellants in accordance with law to serve the remaining sentence passed by the learned court below.

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Accordingly, the appeal is dismissed.

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( Ratnaker Bhengra,J.)

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Jharkhand High Court, Ranchi Dated 17.09.2018 Sharda/NAFR

Mahru Mahto And Ors. v. State of Jharkhand

Case brief

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Mahru Mahto And Ors. v. State of Jharkhand

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