Partly allowed

Birju Mahto v. State of Jharkhand

Jharkhand HC13 Mar 2024Cr.A(SJ)/847/2012

Case brief

AI extract

What is this about?

Appeal against conviction under Sections 304 Part II/149 IPC arising from a fatal lathi assault over a trivial cow-dung dispute. The court gave benefit of doubt to two appellants due to contradictory eyewitness versions, affirmed conviction of two others, and modified sentences considering age and time already undergone.

What did the court decide?

Convictions of Bhola Mahto and Tiru @ Lalbihari Mahto set aside; Birju Mahto sentenced to period already undergone; Kameshwar Mahto's sentence modified to four years RI and Rs.5000 fine, bail cancelle

Birju Mahto Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2024)

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Criminal Appeal (S.J.) No. 847 of 2012

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[ Against the judgment of conviction dated 10.07.2012 and order of sentence dated 13.07.2012 passed by learned Addl. Sessions Judge-III, Hazaribagh in S.T. No. 177 of 2003]

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Birju Mahto

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Bhola Mahto

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Tiru @ Lalbihari Mahto

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Kameshwar Mahto

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…. …. …. Appellants

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The State of Jharkhand

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For the Appellants : Mr. Razaullah Ansari, Advocate

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Mr. Ramawatar Choubey, Advocate For the State : Ms. Mahua Palit, A.P.P.

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PRESENT

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HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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By Court 1. The judgment of conviction under Sections 304 Part II read with Section 149 of the IPC is under challenge in the instant criminal appeal.

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As per the fardbeyan of Anju Devi recorded on 02.01.2002, on 01.01.2002 at about 7 a.m. when her father-in-law was giving fodder to the cattle, Kameshwar Mahto, Tiru @ Lalbihari Mahto, Birju Mahto, Parmeshwar Mahto, Gurdayal Mahto, Bhola Mahto, Sundar Mahto, Kishun Mahto, Pradeep Mahto, Dongni Devi, Pashilini Devi and Reena Devi came armed with weapons and surrounded her father-in-law and started abusing him. There was hot exchange of words and it is alleged that on incitement of Bhola Mahto to kill Sukhi Mahto, the accused persons Hiru Mahto, Lalbihari Mahto, Birju Mahto armed with Lathi, assaulted Sukhi Mahto on his head, resulting in bleeding injury as a result he fell down. On alarm being raised, Birendra Mahto came running to his rescue, who was also assaulted by Parmeshwar Mahto, Bhola Mahto and Kameshwar Mahto . The genesis of offence has been stated to be trivial dispute over collecting cow dung.

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On the fardbeyan, Barkagaon P.S. Case 2/2002 was registered against all the 13 named accused persons under Sections 147, 148, 149, 341, 342, 323, 307 and 302 of the IPC. Police on investigation, submitted charge sheet against five named accused persons. These four appellants and one Parmeshwar Mahto were put on trial for the offence 147, 148, 323, 307, 302 read with Section 149 of the IPC.

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Altogether 10 witnesses were examined on behalf of prosecution and thereafter, statement of the accused persons was recorded under Section 313 of the Cr.P.C. Four witnesses have also been examined on behalf of defence. On trial, one of the accused Parmeshwar Mahto has been acquitted of the charges on the plea of alibi.

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ARGUMENT ON BEHALF OF THE APPELLANTS

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P.W. 4 , who happens to be the brother of the deceased, has not named Tiru Mahto as assailant in his deposition. P.W. 3-Neman Mahto has named other accused persons, but has not named this appellant Tiru Mahto to be involved in the assault. His cross-examination has been refused by the defence therefore, his deposition stands accepted that Tiru Mahto was not involved in the incidence. P.W. 5 has not named Tiru Mahto as the assailant. Only allegation as against him is that he had assaulted Birendra Mahto as stated by P.W. 5 in para 2. P.W. 6, who came at the place of occurrence immediately after the incidence, saw the accused persons fleeing from there. He has also not named this appellant-Tiru @ Lalbihari Mahto to be among them.

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Prosecution version has been falsified in view of acquittal of Parmeshwar Mahto on the plea of alibi . The informant-P.W. 7 and other witnesses had deposed that Parmeshwar Mahto was also the member of unlawful assembly who had assaulted the deceased. During trial, it was found that he was not present at the place of occurrence, rather he was at Chennai at the relevant time. On the point of sentence, it is submitted by the learned counsel on behalf of appellant-Tiru @ Lalbihari Mahto that he has already undergone imprisonment for more than three years eight months.

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FIR of the case is itself under cloud of suspicion, as it is not the first version which has come on record. PW 7- informant of the case has herself deposed in para 10 that when her father-in-law Sukhi Mahto was admitted in RMCH, Ranchi, Ranchi police has recorded her statement and she has also signed over it. Furthermore, P.W. 5 has deposed in para 6 that on the very day of incidence, information regarding incidence was given to the police by Baleshwar Mahto, whereas FIR has been lodged on the basis of fardbeyan of PW 7. On the next day of incidence i.e. on 02.01.2002, FIR was lodged after due deliberation and afterthought impleading altogether 13 persons and after investigation, the police found the case true only against five of them and submitted charge sheet. Out of said five persons, learned trial Court found the case against Parmeshwar Mahto to be false and he has already been acquitted of the charges on the plea of alibi .

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PROSECUTION

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Learned counsel for the State has defended the impugned judgment of conviction and order of sentence. It is argued by her that the eye witnesses to the incidence are P.W. 7-informant and P.W. 9-injured and they have given a consistent account that the accused persons in a pre-planned manner by forming unlawful assembly assaulted the deceased resulting in his death. When his son Birendra came to his rescue, he was also assaulted and badly injured.

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ANALYSIS

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Trial of accused in a criminal case, is a process of reconstructing the events and circumstances of the case, on the oral and documentary evidence brought on record, before a Court of law. There is always a time gap between the actual event, and its projection through human process during criminal trial. Individual faculties vary in the capacity of observation, reflection, and its reproduction in the form of oral evidence. Therefore, there are bound to be some inconsistency in the prosecution story as enacted in the criminal trial. Human nature is prone to exaggeration, this by itself, does not make one’s evidence as unreliable, but it demands a higher degree of judicial scrutiny. These factors cannot be lost sight of while appreciating evidence in a criminal case.

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There is substance in the argument on behalf of the defence that there was laxity in lodging the FIR. The informant has candidly stated in her deposition that her statement was recorded at RMCH, Ranchi, by Ranchi police, which has not been brought on record. It was the fault of the police to have not brought this on record and the informant cannot be faulted on this count. This by itself cannot be a ground to discard the prosecution case in its entirety. FIR from the point of view of the informant is meant to set the law into motion, and is not a substantive piece of evidence, which can only be used to corroborate the informant under Section 157 or to contradict her under Section 145 of the Evidence Act. Any infirmity in recording the FIR or in the investigation cannot be per se be a ground to disbelieve the prosecution case if it is otherwise based on cogent and reliable evidence. It has been held in State of Rajasthan Versus Kishore [1996 SCC (Cri ) 646], it was held that the real fact that I.O. committed illegality or irregularity during course of investigation would not cast doubt on the prosecution case nor trustworthy or reliable evidence can be cast aside to record acquittal on that count. So unless serious prejudice is caused to the accused because of the latches in investigation, no adverse inference can be drawn.

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Homicidal death of Sukhi Mahto is not in a shade of doubt which has been established by the objective finding of the Autopsy Surgeon who has been examined as PW1. Following injuries were found on the body of the deceased:-

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(i) Lacerated wound was stitched 5x1 cm bone deep on right parietal region of head.

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(ii) Internal injury; There was contusion of right parietal scalp. There was crack fracture on right tempro-fronto-parietal bones. There was presence of extra dural blood clot over right fronto temporal region of brain measuring 8x7x3 CM with compression of brain underneath. There was fracture of left 5^th to 7^th ribs. Internal organs were congested.

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The doctor has opined that all the injuries were ante-mortem, caused by hard blunt substance and the death was due to head injury. The postmortem examination report has been marked as Exhibit 1.

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Main point for determination is whether the appellants were liable for causing the homicidal death of Sukhi Mahto and of conjointly assaulting his son Birendra.

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Out of ten witnesses examined on behalf of the prosecution, P.W. 3-Neman Mahto has deposed that when he reached the place of occurrence on Hulla, he saw accused Birju Mahto, Kameshwar Mahto and Parmeshwar Mahto assaulting Sukhi Mahto and his son Birendra Mahto by lathi. The injured became unconscious due to assault and was taken to Ranchi for treatment. P.W. 3 has not been crossexamined and, therefore, his testimony remains uncontroverted.

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P.W. 4 in para 6 has deposed that at the time of incidence, he was at a distance of 2 km. from the place of occurrence and was working in agricultural field and, therefore, he cannot be said to be the eye witness to the incidence. In para 16, he has deposed that there was ongoing land dispute between Sukhi Mahto and the accused persons. In the examination-in-chief, he has, however, deposed that on Hulla when he came there, he saw that Birju Mahto, Parmeshwar Mahto and Kameshwar Mahto were assaulting Sukhi Mahto and Birendra Mahto.

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P.W. 5 Narain Mahto, who is also the co-villager, has deposed that at 7 O’clock in the morning on Hulla, when he went to the place of occurrence, he saw that his brother Sukhi Mahto was being assaulted by Bhola Mahto, Tiru Mahto, Kameshwar Mahto, Birju Mahto and Parmeshwar Mahto and two to four other persons have gathered around him and were abusing him. On the command of Bhola Mahto, Kameshwar Mahto assaulted Sukhi Mahto with Lathi resulting in bleeding injury on his head and he fell down. When Birendra Mahto came there, he was assaulted by Tiru and Parmeshwar Mahto with lathi. Both Sukhi Mahto and Birendra Mahto were taken for treatment to Barkagaon hospital from where they were referred to Ranchi for better treatment. In his cross-examination in para 16, he has deposed that Sukhi Mahto was assaulted by Kameshwar Mahto and Birju Mahto with lathi and Birendra Mahto was assaulted by Lalbihari Mahto, Bhola Mahto and Parmeshwar Mahto. In para 17, he has deposed that except for Kameshwar Mahto, Birju Mahto, Lalbihari Mahto, Bhola Mahto and Parmeshwar Mahto, none-else was involved in the said assault. P.W. 6 has deposed that on Hulla, when he came near the house of Sukhi Mahto, he found that Sukhi Mahto in a bleeding state and Birendra Mahto had also been injured. He did not saw the witness, but saw Birju Mahto and Parmeshwar Mahto and younger son of Bhola Mahto on fleeing away from the place of occurrence. There was one another person with whom he could not identify. 16. P.W. 7 is the informant regarding the manner of assault, she has deposed that her father-in-law Sukhi Mahto had been assaulted by Bhola Mahto, his son Tiru @ Lalbihari Mahto, Kameshwar Mahto and others. Among the assailants, Tiru Mahto, Kameshwar Mahto, Birju Mahto and Parmeshwar Mahto, who assaulted her father-

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in-law. Birendra Mahto had also sustained injury and both were initially treated at private clinic of Barkagaon by Dr. R.C. Prasad and thereafter, they were referred for better treatment at Ranchi.

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P.W. 8- Mitku Mahto has deposed that on Hulla when he came to the house of Sukhi Mahto, he saw that in front of the house of Neman Mahto both of them being assaulted. He has named Kameshwar Mahto, Birju Mahto, Parmeshwar Mahto, Bhola Mahto and Tiru Mahto in the assault by means of Lathi and Danda. Birendra Mahto had also been sustained injury. In para 4, he has deposed that it was a free fight from both sides.

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P.W. 9- Birendra Mahto is the injured, who has deposed that among the assailants, six persons Kameshwar Mahto, Birju Mahto, Bhola Mahto, Tiru @ Lalbihari Mahto, Parmeshwar Mahto and Guru Dayal Mahto, all of them started assaulting his father. On his intervention, he was also assaulted.

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On question who were the assailants, the prosecution has given conflicting versions. P.W. 3 names only three to be the assailant viz Birju Mahto, Kameshwar Mahto and Parmeshwar Mahto . This witness has claimed to be a direct eye witness to the incidence. He has neither been declared hostile, nor he has been crossexamined by the defence. As his testimony has remain uncontroverted therefore, there cannot be a ground to reject his testimony. It has been held in State of U.P. v. Nahar Singh , (1998) 3 SCC 561 that i n the absence of cross-examination on the explanation of delay, the evidence of P.W. 1 remained unchallenged and ought to have been believed by the High Court. This view has been reiterated in Arvind Singh v. State of Maharashtra , (2021) 11 SCC 1.

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20. Once the complicity of the accused persons as named by P.W. 3 is accepted, the evidence of other witnesses that other accused persons were also involved, cannot be accepted. It is significant to note that P.W.-9 son of the deceased and injured in the incidence, has named all these three accused, but has also named others to be involved in the incidence. The benefit of contradiction between the evidence of P.W. 3 and P.W. 9 should go to the accused. There is a general tendency in such case to rope the entire family members in such incidence and therefore, a careful scrutiny of evidence need to be made.

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In view of the material contradictions and the reasons as discussed above, this Court is of the view that Bhola Mahto and Tiru Mahto @ Lalbihari Mahto is entitled to benefit of doubt, and the Judgment of conviction and sentence passed against them, is set aside. Their sureties are discharged from the liability of bail bond.

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Judgment of conviction and sentence passed under Sections 148, Section 304 II read with Section 149 of the Indian Penal Code against Birju Mahto, Kameshwar Mahto for causing culpable homicide not amounting murder of Sukhi

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Mahto, is affirmed. They are also convicted for offence under Sections 323/149 of the Indian Penal Code for causing simple injury to Birendra Mahto.

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On the point of sentence, it has been argued by the learned counsel on behalf of the Appellants that the incidence took place on a trivial incident, and there was no past criminal antecedent. Age of Birju Mahto at the time of sentence was 67 years and that of Kameshwar Mahto 37 years in 2012. It also has been argued that Birju Mahto has already undergone imprisonment for three and half years, and Kameshwar Mahto has undergone more than one and half years of imprisonment.

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Under the circumstance, considering the age and period already undergone by the Appellant-Birju Mahto, sentence already undergone by him for offence under Sections 148, Section 304 II read with Section 149 and under Sections 323/149 of the Indian Penal Code, will meet the ends of justice.

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As far as the Appellant- Kameshwar Mahto is concerned, a Sentence of R.I. for four years and a fine of Rs.5000/- under Section 304II Indian Penal Code, one year, each under Section 148 and Section 323 of the Indian Penal Code, shall meet the ends of justice. All the sentences to run concurrently. In the event of default of payment of fine, the Appellant shall undergo S.I. of one month. His Bail is cancelled and is directed to surrender before the learned trial Court, within two weeks of the order.

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Appeal is partly allowed, with modification of finding and sentence.

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(Gautam Kumar Choudhary, J . )

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Jharkhand High Court, Ranchi Dated, 13^th March, 2024 AFR/AKT/Anit

Birju Mahto v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Birju Mahto v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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