Dismissed

Biru Mahto v. the State of Jharkhand

Jharkhand HC7 Jan 2019Cr.A(DB)/560/2014

Case brief

AI extract

What is this about?

In this criminal appeal against a murder conviction, the two-judge bench analyzed inconsistencies raised by the Amicus Curiae regarding eye-witness testimony, the minor child witness, and the lack of motive. The Court upheld the trial court's findings that the prosecution proved its case beyond reasonable doubt.

What did the court decide?

Dismissing the appeal and upholding the conviction and sentence awarded by the learned Additional Judicial Commissioner, Ranchi.

Biru Mahto Vs the State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2019)

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Cr. Appeal (D.B.) No.560 of 2014

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Against the Judgment of conviction dated 30^th August, 2013 and order of sentence dated 3^rd September, 2013, passed by the learned Additional Judicial Commissioner- VIIth-cum- Sessions Judge, Ranchi, in Session Trial No.506 of 2011/ T.R. No.165 of 2013.

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Biru Mahto ….. Appellant Versus The State of Jharkhand. ….. Respondent

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For the Appellant : Mr. Ashish Verma, Amicus Curiae For the State : Mr. Vikash Kishore, A.P.P.

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Present

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Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Kailash Prasad Deo

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By Court:- Heard, learned Amicus Curiae and learned A.P.P. for the State.

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2. Sole appellant stands convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment with a fine of Rs.10,000/-, in default whereof, to undergo additional simple imprisonment for six months by the impugned judgment dated 30^th August, 2013 and order of sentence dated 3^rd September, 2013, rendered by the learned Additional Judicial Commissioner- VIIth-cum-Sessions Judge, Ranchi, in Session Trial No.506 of 2011/ T.R. No.165 of 2013.

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3. The fardbeyan of the informant, Sagan Devi (widow of the deceased), was recorded on 25^th July, 2010 at 11.30 hrs. at the house of the informant at Bogai Beda, Tola Gour Beda, under Angara P. S., District- Ranchi, which led to the institution of the F.I.R. at 16.35 hours on the same date. As per the prosecution story unfolded through the mouth of the informant, wife of the deceased-husband, Late Saharnath Mahto, Headmaster of Middle School, Hasala Bera, returned at 6.00 P.M. after attending a meeting under office of District Superintendent of Education, Ranchi on 24^th July, 2010. After having their dinner, they were sleeping in the house. Her husband was sleeping at Khat in Verandah while the informant along with her daughter and grand-son

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were sleeping inside the room adjoining the verandah. At around 10.00 P.M. on the same night, the accused, Biru Mahto entered the first floor of the house along with the wall of the house and chopped up the neck, mouth and private organ of the deceased by inflicting blows by iron dab. The informant saw the same and when she forbidded the accused, she was dragged towards the upper floor of the house but on her screaming, she was dropped on the stairs, the accused jumped from the first floor and fled away. She has stated that on the preceding day of the occurrence, the accused had accosted her as to why she has not cleaned the temple, to which she replied that due to paucity of water, she could not do so. The accused had reportedly asked the grand-son of the informant about the whereabouts of his grand-father. The informant believed that this was the reason for committing the crime. She further stated that the accused had her sasural (in-law's house) in the village. Jit Lal Mahto, a co-villager of the informant was his father-in-law in whose house, he was residing for last one month. However, after commission of the offence, he fled away. She further stated that her fardbeyan was recorded in presence of covillagers, Shyam Lal Mahto and Ramanand Mahto in the presence of the A.S.I., Digamber Pandey of Angara P.S.

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4 . On institution of the F.I.R. and after investigation, charge-sheet was submitted under Section 302 of the Indian Penal Code bearing No. 70 of 2010 against the sole accused on 30^th September, 2010. Charges were framed on 17^th November, 2011 and explained to the accused, to which he pleaded not guilty and claimed to be tried. 5. The case of the defence was total denial of the incidence. He alleged false implication by the prosecution with an oblique motive in his statement under Section 313 of the Cr.P.C. 6. During course of trial, fifteen witnesses were examined by the prosecution. Delo Kumari, the daughter of deceased as P.W.1, Mahavir Mahto, a co-villager P.W.2, Maninath Mahto, co-villager P.W.3, Chinta Mani Devi, the

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daughter in-law of the deceased P.W.4, Fulo Devi, the grand-daughter of deceased P.W.5, Shreenath Mahto, a co-villager P.W.6, Sukhlal Mahto, also a co-villager P.W.7, Meena Devi, a co-villager P.W.8, Sugo Devi, also a covillager P.W.9, Sagan Devi, informant and the wife of deceased P.W.10, Dr. Vijay Kumar, F.M.T., RIMS, Ranchi P.W.11, Ashok Kumar Sinha, Investigating officer of the case P.W.12, Ramanand Mahato P.W.13, Shyam Lal Mahto P.W.14 and Rohit Kumar Mahto, the grand son of deceased P.W.15.

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7 . The following exhibits were adduced by the prosecution during the course of trial.

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Signature of Sukhlal Mahto (P.W.7) on seizure list Exhibit-1, signature of Sukhlal Mahto (P.W.7) also on seizure list Exhibit-1/1, signature of the informant, Sagan Devi (P.W.10) on fardbeyan Exhibit-2, signature of Ramanand Mahto on fardbeyan Exhibit-2/1, signature of Shyam Lal Mahto on fardbeyan Exhibit-2/2, Post-Mortem report Exhibit-3, fardbeyan of the case Exhibit-4, seizure list Exhibit-5, endorsement on the fardbeyan by O.C. of concerned P.S. Exhibit-6 and formal F.I.R. Exhibit-7. 8. The learned trial court considered the evidence adduced by the prosecution and was of the opinion that the occurrence was witnessed by three eye- witnesses, namely, Delo Kumari (P.W.1), the daughter of the deceased, the informant and widow (P.W.10) and P.W.15, the minor grand-son, whose testimonies were consistent and in conformity with the case set up in the fardbeyan (Exhibit-2). The seizure list (Exhibit-5) contained the description of the weapon allegedly used for murder. Blood-stains were also found on it and recovered. A pencil torch having blood-stain was also recovered and seized which was proved by the witnesses. Exhibit-3 is the Post Mortem report which was proved by the Medical Officer, Dr. Vijay Kumar (P.W.11). The five injuries described therein were ante-mortem in nature and as per the opinion of the Doctor, death occurred due to combined effect of hemorrhagic shock, asphyxia and spinal cord injury. Time elapsed since death was 12 hours + 6 hours from

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the time of Post Mortem examination. There were several injuries on the person caused by sharp-cuting weapon whereby vital parts of his body were chopped up which was the cause of death. Exhibit- 1 and 2 series have been proved which are the signatures of informant upon fardbeyan and the other witnesses who fully supported the case. F.I.R. was promptly lodged on the following morning of the fateful night and investigation also started. The Post Morterm was also conducted on the same day on the dead body. The medical opinion tallies with the nature of injury described by the eye-witnesses, P.W.1, P.W.10 and P.W.15. The learned court was satisfied that the prosecution have been able to prove the manner of occurrence, the place of occurrence, the factum of commission of murder as well as manner, in which accused had arrived at the scene of crime and succeeded to flee away after commission by the ocular evidence on record. The ocular as well as documentary evidence were fully reliable, cogent and trustworthy. The defence has not been able to dent the trustworthiness and veracity of the prosecution witnesses. Thus, the sole accused/ appellant herein was found guilty of the charges of having committed murder of the husband of the informant on the date, time and place described. The prosecution have been able to prove the charges beyond shadow of all reasonable doubt.

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9 . Learned amicus curiae has taken this Court through the material evidence on record and made the following submissions :-

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(a) He submits that prosecution witnesses Nos.1, 10 and 15 have primarily been relied upon by the trial court as eye-witnesses to record the finding of guilt. Statement of P.W.1 in cross-examination has been placed in particular at Paragraph-10 where she stated that she had not seen the accused causing a blow on the throat of the deceased. Her statement made at Paragraph-11 in particular also creates a doubt about the identity of the accused, namely, Biru. As per P.W.1, Mahavir Mahto was the nephew of her father whose wife is Zira Devi. Dhananjay Mahto is her brother, but has not been living and has missing

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since long and she could not say whether he is dead or alive. However, wife of Dhananjay used to stay with them. On the fateful day, she was not in the house and had gone to Lokadih. She further stated at Para-12 that she had seen the accused drinking the blood of her father after the assault. Later on at Para-15, she had further stated that Mahavir Mahto and Dhananjay Mahto were living together. She had seen the weapon, Dabli thrown near the stairs which was picked up by them and placed beside the deceased body. She had not seen how the accused entered into the house. She also could not say whether the asbestos sheet on the adjacent house had broken on account of the accused fleeing away over it. It is submitted that statement of P.W.1 read in entirety did not create an impression that she had seen the occurrence. Therefore, reliance upon her statement as an eye-witness was not proper in the eye of law.

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(b) Learned Amicus Curiae has thereafter placed the statement of the informant, P.W.10. Her description of the incidence made in the examination-inchief also creates a doubt as to whether she had seen the occurrence. She has stated at para- 2 that the accused had climbed upstairs and had started assaulting her husband with Dabli, when she woke up from sleep and saw the accused having cut the throat, neck and the private organ of the deceased. In her cross-examination at para-35, she has stated that the accused had cut the throat of her husband first and thereafter his organ. She also stated at para-34 that her husband could not raise hue and cry because his throat was first cut and thereafter, the rest of the organs were cut. This statement read with her statement in examination-in-chief created a doubt as to being her eye witness. In her further statements made in cross, she has also not been able to state as to when she was being pulled along by the accused, the accused was holding the Iron Dab in his hand or not, but she states that she had seen the Iron Dab in his hand while he was inflicting the blows. She further stated at para-39 that the Police had picked up the Dab, which was thrown below. During night nobody had seen the Dab, which was lying near the stairs. According to this

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witness at para-15 of her deposition, her grand-son was asleep at the time of assault and had not woken up even after the hue and cry. Later on he woke up after lot of noise and cries and saw the incidence after it took place. She further stated that she had not seen the accused going to the upstairs, but she asserted that she had seen him inflicting the blows. She admitted in her statement at Para-18 that there is no electricity in the village. She further denied any acquaintance with the accused on her part or the part of her husband as well from before. However at para-22, she stated that the accused was son-in-law of the brother-in-law (Devar) of her own sister and that Sukhlal Mahto was the brother-in-law of her husband (the deceased). Jitlal and Sukhlal, were both brothers. She denied enmity between Jitlal or his son-inlaw, the accused with her husband. She further denied any altercation with the deceased relating to the temple issue. However, the only interaction that took place with the deceased was on the question of cleaning of the temple.

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( c ) Learned Amicus Curiae further pointed out from her deposition that oral information of the incidence was given by Mahavir Mahto at around 6.00 in the

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morning on 25^th July, 2010, whereas the F.I.R. records the information at the Police Station at 2.15 hours in the night. He submits that these discrepancies and inconsistencies in the statement of the informant discredits her testimony as an eye witness. He further submitted that the nature of assault is grotesque and creates an impression of revenge as the private organ of the deceased has also been cut. Such kind of an assault necessarily should have a motive. The prosecution has miserably failed to show any motive behind the accused killing the husband of the informant in such a cruel manner.

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(d) Learned Amicus Curiae further submitted that though P.W.-15 was not named in the charge sheet, wherein eleven witnesses have only been named, but he was adduced as P.W.15, later on. Thus, the manner in which 15 prosecution witnesses have been adduced against named eleven charge-sheet witnesses creates an impression that the prosecution story was shaky and not

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sound. Though P.W.15, Rohit Kumar, was aged 8 years and minor, but his competency has not been adequately tested by the learned trial Court before recording his testimony. He has referred to the statements of P.W.15 and submitted that the description of the time, manner of crime, such as the accused drinking the blood of the deceased, assault on the neck, throat etc. go to show the contradiction in his statement compared with that of the informant, P.W.10. P.W.10 had clearly deposed that her grand-son, Rohit Kumar was asleep and did not wake up even after noise. He woke up after lot of hue and cry and noise. This witness has however stated about the enquiries made by the accused about the whereabouts of his grand-father. The learned trial Court has committed a serious error in relying upon the statement of this minor child witness as an eye-witness.

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(e) Learned Amicus Curiae has also referred to the testimony of the medical witness, P.W.11. Five injuries by sharp and heavy weapon have been described therein, but the prosecution witnesses in particular have not been able to substantiate any motive for such, gruesome assault on the deceased. He submits that other prosecution witnesses are either formal or hearsay and P.W.9 has in fact been declared hostile. Prosecution has not been able to explain the absence of the daughter of the deceased as well on the fateful night though P.W.4 (Chinta Mani Devi), daughter of the deceased, in her deposition has tried to cover up the lacunae by explaining her absence at Ranchi to attend a meeting as a para-teacher. The accused/appellant was not a resident of the village as per the admission of the informant herself and could not have any motive to commit such a gruesome murder. He has been made an scapegoat to cover up the crime committed by any other person. The manner in which he has been beaten up by the co-villagers after a week and apprehended by the Police also go to show a calculated move to implicate him falsely of this crime. The description of the place of occurrence by the Investigating Officer, P.W.12 also fails to explain the manner of entry and exit of

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the accused from the place of occurrence since both the doors of the house were locked from inside. All these discrepancies create a serious doubt about the prosecution story. The findings of the learned trial Court are, therefore, vitiated on more than one counts. Conviction of the appellant on such unreliable testimony is fraught with grave risk. He has been sentenced to life imprisonment though the charges have not been established beyond reasonable doubt. The appellant has remained in custody since 2^nd August, 2011 i.e. more than 7 years by now. The appeal, therefore, deserves to be allowed.

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10. Learned A.P.P. for the State has vehemently opposed the submissions of the learned amicus curiae. He submits that right from the narrative contained in the fardbeyan recorded by the Police at the house of the informant till the witnesses have appeared and deposed during trial, there is complete consistency in the prosecution story. The informant had broadly described the manner of occurrence of the crime in her own house at the dead of the night, at 10.00 P.M. while the deceased was asleep in the Verandah and she along with her daughter and grand-son were also sleeping inside the room adjacent to it. There was an altercation on the issue of cleaning of temple between the informant and the accused on the previous day. The grand-son of the informant, P.W.15 has also in his testimony supported the fact that the accused had inquired about the whereabouts of his grand father on the same day. The accused had with a diabolical intention scaled the house and inflicted lethal blows on the neck, throats and other parts of the body including the private organ. There are five serious blows on the deceased found to be inflicted antemortem by the medical officer who has adequately proved the postmortem report. The informant had woken up immediately and saw the assault. Her statement did not suffer from any major discrepancy. Her testimony taken in entirety, completed the true picture of the crime committed by the sole accused by the use of a sharp- cutting weapon, an Iron Dab generally used in the

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villages. The Daughter of the deceased was also sleeping along with her and had witnessed the crime on hearing the hue and cry and fully supported the prosecution case. P.W.15, the child witness has passed the test of competency. The defence on its part has not been able to dent the testimony of this child witness. The rule regarding test of competency of the child witness is as a matter of convention and simply on account of non-putting of certain questions to the child witness by the learned trial Court, his testimony cannot be dislodged as unreliable. If thetestimonies of these three witnesses, who were inside the house at the date and time of the occurrence is taken together with the expert opinion of the doctor who duly proved the Post Mortem report and established existence of five sharp cutting injuries by a sharp and heavy weapon, the crime has been proved beyond all reasonable doubt. In the face of such direct evidence, the prosecution had no reason to search for motives to establish the crime. This is not a case of circumstantial evidence. The fardbeyan and the F.I.R. have also been duly proved by the witnesses and non-examination of the A.S.I. Digambar Pandey could not dilute the contents or veracity of the First Information Report and the fardbeyan.

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The learned trial Court has by well reason judgment found that the prosecution had been able to fully establish the charges beyond all reasonable doubt. Considering the nature of the crime and the manner in which it was inflicted, the sentence of life imprisonment awarded to him is proper. Therefore, there are no grounds made out to interfere with the impugned judgment. The appeal is fit to be dismissed.

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11. We have considered the submission of the learned amicus curiae and learned counsel for the state at length and gone through relevant materials available on record and also perused the impugned judgment.

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We have carefully analyzed the testimony of the three witnesses in particular, P.W.1, the daughter of the deceased, P.W.10, the widow, informant and P.W.15, the grand son of the deceased who was also inside the house and

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had deposed about the conduct of the accused inquiring into the whereabouts of his grand father on the previous day. On analysis of the evidence of these three witnesses together with the medical evidence on record, we find that statement of P.W.10, the informant, widow and P.W.1, the daughter of the deceased, read in entirety do not create any doubt or contradiction in the prosecution story. The widow was sleeping in the room just adjacent to the Varandah where the deceased was sleeping on a cot, when the accused scaled the wall and entered into the house. P.W.10 has graphically disclosed the assault and categorically stated that the accused first chopped his neck and throat and thereafter his private organ were also chopped with the use of an Iron Dab, the sharp cutting weapon. This explains the reason why the deceased could not raise a hulla or cry at the time of assault more so since he was sleeping. P.W.1, the daughter of the informant who was also sleeping inside with her got up on hearing noise and saw the occurrence. The material weapon together with blood-stain clothes were seized by the Police and have also been duly proved as Exhibits. The fardbeyan witnesses, Ramanand Mahto, Shyam Lal Mahto and the Investigating Officer (P.W.12) have proved these documents. There are no suggestions on the part of the defence during cross-examination or statement elucidated during cross-examination, which would create a doubt about veracity of these prosecution witnesses. Simply because the prosecution has adduced a number of witnesses more than the charge-sheet witnesses would not dilute the testimony of cogent and reliable witnesses like P.W.1 and P.W.10. Death has been caused due to hemorrhagic shock, asphyxia and injury to the spinal cord on account of five lethal injuries inflicted by the accused with the sharp-cutting weapon. Since the prosecution has been able to prove the crime through eye witnesses, who though related, have not rendered them doubtful on account of any inconsistency or contradiction, there is no reason to prove any more motive behind the crime on the part of the accused. The testimony of all these prosecution witnesses

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together with medical evidence on record, persuades us to come to a considered opinion that the findings of the learned trial Court do no suffer from any error in the appreciation of evidence on record or perversity, which renders it unsustainable.

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The prosecution had been able to prove the charges beyond shadow of all reasonable doubt. Having analyzed the evidence on record, at length and on considering grounds urged by the appellant, we do not find any reason to upset the findings recorded by the learned trial court. The appeal is devoid of any merit, hence it is, dismissed.

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While parting, this Court records its appreciation to the valuable assistance accorded by the learned Amicus Curiae during hearing of this case. The Member Secretary, High Court Legal Services Committee shall bear the fee/ legal remuneration of the learned Amicus Curiae.

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( Aparesh Kumar Singh, J .)

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(Kailash Prasad Deo, J.)

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Jharkhand High Court, Ranchi. Dated 7^th January, 2019. sandeep/Jay

Biru Mahto v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Biru Mahto v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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