Partly allowed

Jagarnath Mahto Alias Jagannath Mahato v. the State of Jharkhand

Jharkhand HC14 May 2019Cr.Rev./221/2018

Case brief

AI extract

What is this about?

This revision petition challenged an order dismissing a discharge application regarding charges under Sections 304 and 328 IPC arising from a political protest incident. The High Court held that the prosecution failed to establish requisite mens rea or link death to the alleged act of inhaling fumes, relying on conflicting forensic evidence. While charges under other IPC sections were sustained, t

What did the court decide?

Petitioners discharged for offences under Sections 304 and 328 IPC; trial court to proceed for other offences without prejudice.

Jagarnath Mahto Alias Jagannath Mahato Vs the… — Murder and Culpable Homicide | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 221 of 2018

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1. Jagarnath Mahto (M.L.A)@ Jagannath Mahto

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2. Gaurishankar Mahto

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3. Bishwanath Mahto

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4. Baleshwar Mahto 5. Bilsi Devi …… Petitioners

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Versus

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The State of Jharkhand ….. Opp. Party

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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA

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For the Petitioners :Mr. S. Nagamuthu, Sr. Advocate :Mr. R.S. Mazumdar, Sr. Advocate :Mr. Pratik Sen, Advocate For the State :Mr. Gautam Kumar, S.C. (Mines)-I Mr. Suraj Prakash, A.C to S.C. Mines-I ---------

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12/Dated: 14th May, 2019

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1. The petitioners have impugned the propriety and correctness of the order dated 07.02.2018, passed by learned Additional Sessions Judge-II, F.T.C, Bermo at Tenughat, in connection with S.T. No.175 of 2016, arising out of Nawadih P.S. Case No.19 of 216 (G.R. No.479 of 2016) whereby the petition for discharge under Sections 227 and 228 of Code of Criminal Procedure, has been rejected.

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2. Mr. S. Nagamuthu, learned senior counsel, for the petitioners, has submitted that offence under Sections 304 of the Indian Penal Code is not made out against the petitioners. For constituting an offence under Section 304 of the Indian Penal Code, the essential ingredients required under Section 299 of the Indian Penal Code has to be established by the prosecution. Requisite intention or the knowledge on the part of the petitioners for causing the death of the deceased namely, Ram Chandra Ram, is completely missing in this case. The allegation against the petitioners is that, they are members of a political party, who assembled at Gobargarha Football Ground, for taking out a torch light (Mashaal Juloos) procession in protest of the incumbent Government. For maintaining law and order, the police officials were also present at the spot.

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Allegedly, S.I. Ram Chandra Ram (deceased) was

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surrounded by the petitioners and their supporters, having m ashaals in their hands and Ram Chandra Ram was heckled and pushed by the petitioners. Despite the repeated requests of Ram Chandra Ram (since deceased) to douse the mashaals, as the fumes of the mashaals was suffocating him, the petitioners did not pay any heed to the pleas of Ram Chandra Ram.It is alleged that Ram Chandra Ram, accompanied the procession for sometime, thereafter he fell down and he was taken to the Hospital but he died. The doctor who conducted the post-mortem opined that death was caused due to inhalation of the toxic and poisonous fumes and no external or internal injury was found on the body of the deceased. It is argued that in the F.I.R, there is no allegation that the petitioners had participated in the said procession with an intention to cause the death of the deceased Ram Chandra Ram.

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Learned senior counsel has further submitted that the viscera of the deceased was sent for chemical examination to the Forensic Department. The forensic report is on record wherein, it is mentioned that no trace of any poison was detected in viscera. It is canvassed that this falsifies the allegation that the deceased died on account of inhalation of poisonous and toxic fumes. To buttress his argument he has relied on the decisions of the Hon'ble Supreme Court rendered in the Cases of Union of India Vs. Prafulla Kumar Samal & Anr.; (1979) 3 SCC 4; and Jitendra Bhimraj Bijjaya & Ors. Vs. State of Maharashtra; (1990) 4 SCC 76, and submitted that, it is well settled that at the stage of charge, the court can sift and weigh the evidence for a limited purpose only to form an opinion that whether sufficient material is available on record to proceed further with the case and to frame charge. It is submitted that in exercise of the jurisdiction under Section 227 Cr.P.C, the court has to consider the broad probabilities of the case, in the backdrop of the evidences available on record.

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While relying on the decision of the High Court of Calcutta rendered in Dr. Mani Kumar Chhetri Vs. State of West Bangal; 2017 SCC OnLine Cal 8423, it is argued by the learned counsel that mere possibility of knowledge that death will be a consequence to an act, is inadequate for

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drawing the inference of requisite mens rea or knowledge in the mind of the accused. It is submitted that every rash and negligent act causing the death would not ipso fact result in inference regarding the existence of knowledge that the rash and negligent act is likely to cause death and a certain degree of knowledge has to be determined before imputation of requisite mens rea .

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Learned counsel has placed reliance on the decision rendered in the case of Shamsher Khan Vs. State (Nct of Delhi) reported in (2000) 8 SCC 568; and submitted that the prosecution has not been able to bring any material evidence on record to show that the petitioners had requisite knowledge that their acts is likely to cause the death of the deceased. Reliance has also been placed on the decision of Hon'ble Supreme Court in Joginder Singh & Another Vs. State of Punjab; reported in (1980) 1 SCC 493, and Ambalal D. Bhatt Vs. The State of Gujarat reported in (1972) 3 SCC 525; to contend that as per the allegation and materials available on record the petitioners can at the most be liable for the offence under Section 188 I.P.C only.

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It is argued that in similar circumstances the Hon'ble Supreme Court in the case of Keshub Mahindra Vs. State of M.P., reported in (1996) 6 SCC 129; while elaborately discussing the provisions of Section 227 Cr.P.C, has held in para 20 of the aforesaid judgment that before any charge under Section 304 part 2 can be framed, the material on record must at least prima facie show that the act allegedly committed by the accused amounts to culpable homicide. It is argued by the learned counsel, that the court below has failed to appreciate that there was no material collected by the police to establish that these petitioners had the knowledge that their act was likely to cause the death of Ram Chandra Ram. It is submitted that even if, statement of the witnesses, as recorded under Section 161 Cr.P.C, is presumed and believed to be true then the allegation that they had forced the deceased to inhale the toxic fumes stands falsified by the findings of the forensic report as no poison was detected in the viscera.

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On the aforesaid grounds, it is contended that there is no material on record to frame the charge under Section 147,

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148, 149, 323, 353, 304 and 328 of the Indian Penal Code save and except for the offence under Section 188 of the Indian Penal Code against the petitioners.

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3. Mr. Gautam Kumar, learned S.C (Mines)-I, appearing on behalf of the State, has supported the impugned order and submitted that according to the F.I.R, these petitioners were carrying the mashaals with flames and they had surrounded the deceased. That the deceased was repeatedly asking them to extinguish their mashaals, as the smoke was suffocating him but they refused to do so. The deceased was telling them that he would suffocate to death on account of inhalation of the fumes of the mashaal and the witnesses in para 32, 40, 41, 42, 57, 59, 60, 61, 69, 71, 117 & 131 of the case diary have categorically supported this fact.

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Learned counsel has relied on the decisions of the Hon'ble Supreme Court in State of Orissa v. Devendra Nath Padhi; (2005) 1 SCC 568; Sajjan Kumar Vs. Central Bureau of Investigation; (2010) 9 SCC 368 and contended that, at the stage of framing of charge under Section 228 Cr.P.C or while considering the discharge petition under Section 227 Cr.P.C, the court is not required to analyze the materials by weighing pros and cons, reliability or acceptability, by conducting a mini trial. These facts can be appreciated at the stage of trial.

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Learned counsel has also placed his reliance on the decision of the Hon'ble Supreme Court in the case of Amit Kapoor Vs. Ramesh Chander & Anr.; (2012) 9 SCC 460 and submitted that in the revisional jurisdiction this court can only satisfy itself with respect to the illegality or irregularity of the order, to set right a patent defect or an error of law and it will not be appropriate for this court to scrutinize the order elaborately unless or until there is some arbitrariness or perversity committed by the court below.

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Learned counsel has also relied on the decision of the Hon'ble Supreme Court in the case of Onkar Nath Mishra & Ors. Vs. State (NCT of Delhi) & Anr.; (2008) 2 SCC 561 and submitted that the court below has not committed any error, as at the stage of framing of charge, the court is not required to go deep to the probative values of the

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materials on record and even when strong suspicion is noted on the basis of available materials, then the court can form an opinion for framing of charge. The court below has considered all the material evidences available in the case diary and has formed its opinion, that there are sufficient materials for putting the accused on trial for the aforesaid offences and the order does not merits any interference by this court.

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4. Having heard learned counsels for the parties and after going through the decisions relied on by the learned counsels, at the very outset, it would be pertinent to state that the decisions relied upon by the learned counsel for the State in the case of State of Orissa v. Devendra Nath Padhi(supra) , is not applicable to the facts of the present case. In the said decision, Hon'ble Court has dealt with the issues of consideration of documents of the defence, at the stage of framing of charge. It is a well settled proposition that the defence evidence or defence documents cannot be looked into, at the stage of framing charge save and except when the documents are unimpeachable.

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From the arguments advanced by learned counsel for the State, the narration in the FIR and the statement of witnesses, the case of the prosecution appears to be, that these petitioners had surrounded the deceased and they were having mashals (Torch Light) in their hands. The deceased was asking them to put off the mashals as the emanating fumes from the mashals was suffocating and the deceased died on account of that.

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5. For better appreciation, it would be necessary to reproduce the observation of the court below, while rejecting the application under Sections 227 & 228 Cr.P.C., and the same reads as under :-

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“ -------------------

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From the materials available on the case record, it is clear that the Compact Disc filed by the prosecution does not cover the entire episode and occurrence on the spot. Medical documents i.e. Injury Report prepared at Central Hospital, Dhori, at B.G.H. Bokaro, the postmortem examination report as also the viscera report, are to be read as a whole at this stage. The Injury Report dated 15.05.2016 prepared at B.G.H. Bokaro, clearly mentions that the deceased had breathing difficulties and there was alleged exposure to burning tyres and he was exposed to gas and he developed acute respiratory distress syndrome

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and there was no any external injury. Thus, at this stage, the death appears to have been prima facie caused by exposure to smoke. The witnesses have stated in paras 7, 71, 117, 131 and other paras also of the Case Diary that the accused persons surrounded and confined the deceased in between burning mashaals and tyres etc. Everyone can be presumed to understand that if someone is exposed to heavy toxic smoke, there is likelihood of his death. Whether there was intention on the part of the accused persons to cause death or not, it has to be decided only at trial on evidence of the witnesses. At this stage, it prima facie appears that all the accused along with supporters violated the order u/s 144,Cr.P.C and they were allegedly armed with deadly weapons and they surrounded and confined the deceased in smoke and did not allow him to move out from there despite repeated requests of the deceased and other police officers present on the spot. Everyone knows that exposure to heavy toxic smoke could be fatal. Admittedly, there is no administration of any poisonous substance from out side and hence, absence of poisonous substance in viscera of the deceased is not surprising. This is a very serious and sensitive matter.

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From the facts and circumstances of the case and materials available on the case record, I am of the considered view that there are sufficient prima facie materials to frame charge against the accused persons u/ss 147, 148, 149, 188, 323, 353, 304 and 328, I.P.C. It is well settled that charges can be framed even on strong suspicion.

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The court below has considered the medical documents as well as viscera report and observed that same are to be read as a whole. If the said observation of the lower court is considered to be true and correct, then apparently, the court below, has failed to appreciate that in the F.S.L report no traces of alkaloidal, pesticidal or metallic volatile poison was detected. The entire case of the prosecution is based on the evidence of the witnesses examined under Section 161 Cr.P.C, who have stated that the deceased was surrounded by the petitioners, the deceased was compelled to inhale the toxic fumes emanating from the mashalls and despite repeated requests, the cordoning around the deceased was not relaxed. It is alleged that due to inhalation of the toxic fumes of the mashaal the deceased fell down, he was taken to the hospital but he died. The doctor conducting autopsy did not find any external injury on the body of the deceased, therefore, the question of assault or forcing the deceased to remain within the cordon, by the petitioners, is doubtful.

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The F.S.L report categorically rules out any traces of poison. In view of the finding of the F.S.L report, it is evident that essential ingredients for constituting the offence under Section 328 I.P.C is also not made out. The court below has rejected the petition for discharge with an observation that

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there is presumption, that the petitioners had intention to cause the death of the deceased.

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6. In the Case of Amit Kapoor (Supra) as relied on by the learned counsel for the State, it has been held that “ Jurisdiction under Section 397 Cr.P.C can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression “prevent abuse of process of any court or otherwise to secure the ends of justice”, the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance of the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily.”

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7. Before considering merits of the conflicting claim of both sides, it is pertinent to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under:

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“ 227. Discharge.—If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

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From perusal of the aforesaid section, it may be inferred that if, two views are possible and one of them gives rise to presumption/ suspicion only, as distinguished from grave suspicion, the trial court is empowered to discharge the accused and at this stage court is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly shows that a Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to apply his judicial mind to the facts of the case, in order to determine whether a case for trial has been made out by the prosecution. While appreciating the aforesaid fact, it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidences and

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probabilities, which is really the function of the court, but only after the stage of evidence is over.

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8. The Hon’ble Supreme Court in the case of Dilawar Balu Kurane v. State of Maharashtra reported in (2002) 2 SCC 135 observed in para-12 as under-:

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“ 12 . In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial .”

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In the instant case, it appears that the Court below considered the materials on record while framing the charge but there was no application of judicial mind and the court merely acted as a post office. From perusal of the impugned order, it transpires that the prosecution case in regard of offenses under section 304 and 328 IPC rests upon a flimsy foundation and it is quite possible that the chances of a conviction are bleak under these section. It is manifest that vital contents of the prosecution case seems somewhat amazing, as it appears to be based on suspicion and presumptions.

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9. As would be evident, the prosecution has not been able to bring on record, that the petitioners had the requisite degree of intention or knowledge to do the act which would cause death of the deceased.

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It is also pertinent to mention herein that the learned Single Judge of High Court of Calcutta, in the case of Dr. Mani Kumar Chhetri (Supra ), while relying on various decisions of the Supreme Court observed in para – 48, which reads as under :-

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“ 48. It is therefore, evident that the mere possibility of knowledge that death is a consequence of an act is inadequate to draw an inference as to the existence of requisite knowledge in the mind of the accused. A degree of certainty in the awareness of the individual as to the likelihood of death as a consequence of his act is a prerequisite for imputation of requisite mens rea in a case of culpable homicide. Knowledge as to likelihood of death must be the direct and motivating force of the act and not a mere possibility arising therefore. Hence, every rash and negligent act causing death would not ipso facto result in an inference as to the existence of knowledge that the rash and negligent act is likely to cause death. The foreseeability of death and the degree of certainty as to such an adverse consequence must be deductible from the factual matrix of the case as weighed alongside the collected evidence. The parameters on which such foreseeability of death may be inferred would depend on (a) the nature of duty of care vested in the accused, (b) the degree of breach of such duty, and (c) other attending facts impacting the certainty of such consequence.”

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In the case of Keshub Mahindra (Supra ) the Hon'ble Supreme Court has categorically held that once the court reaches to the conclusion that the materials produced by the prosecution did not even prima facie connect the accused with any act done with the knowledge that by that act itself death would be caused an accused could not be charged under Section 304 part 2.

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10. It is evident from the material evidence as cited by the learned counsel for the State that the entire allegation against the petitioners appears to be that because of the inhalation of the toxic fumes the deceased had died. There is no further material available on record to connect these petitioners with the alleged knowledge of likelihood of death of the deceased, save and except, the witnesses stating that the deceased was surrounded by the petitioners and despite repeated pleas the flames were not extinguished..

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At the cost of repetition, it is noted that the F.S.L report does not support the factum, that the deceased died on account of inhaling intoxicating substance from torch light ( mashaal ) as there was no trace of any poisonous substance detected in the viscera and the opinion of the doctor doing autopsy was not supported by the forensic report.

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I am therefore, of the opinion that lower court has committed an error in proceeding further on the basis of the suspicion/ presumption against the accused persons regarding offences under section 304 and 328 IPC, in fact the prosecution has not been able to raise even any cogent

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suspicion against the petitioners.

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11. However, there are material evidences on record that these petitioners had violated the orders under Section 144 Cr.P.C and they had scuffled with the Government officials. The witnesses have categorically stated that the petitioners were armed with various weapons. Thus, the offence under Sections 147, 148, 149, 188, 323 and 353 of the Indian Penal Code, is made out and so far as the ingredients for constituting the offence under Sections 304 and 328 I.P.C is concerned, there is lack of material on record. Accordingly, the petitioners are discharged for the offence under Sections 304 and 328 I.P.C.

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The trial court shall pass necessary orders as and when the evidence is laid in the court without being influenced or prejudiced by any of the observation made hereinabove.

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12. With the said observation, this revision application is, hereby, disposed off.

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(AMITAV K. GUPTA, J.)

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Chandan/-

Jagarnath Mahto Alias Jagannath Mahato v. the State of Jharkhand

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Jagarnath Mahto Alias Jagannath Mahato v. the State of Jharkhand

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