Jharkhand High Court
Raju Mahto vs The State Of Jharkhand on 26 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 1179 of 2017
with
Criminal Appeal (DB) No. 560 of 2017
[Against the judgment of conviction dated 10.11.2016 and the order of sentence dated
22.11.2016 passed by the learned Additional Judicial Commissioner-XI, Ranchi in
Sessions Trial No. 883 of 2012 (TR No. 25 of 2015)]
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Raju Mahto, son of Late Kishun Mahto, resident of Village- Paryago, PO
Tangarwasli, PS- Mandar, District- Ranchi ...... Appellant
(In Cr.A. (DB) No. 1179 of 2017)
Lalu Mahto, son of Late Yakhun Mahto, resident of Village- Paryago, PO
Tangarwasli, PS- Mandar, District- Ranchi ...... Appellant
(In Cr.A. (DB) No. 560 of 2017)
Versus
The State of Jharkhand ...... Respondent
(In both cases)
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(Heard through V.C. on 26.07.2021)
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant(s) : Mr. Kripa Shankar Nanda, Advocate
[In Cr.A. (DB) No. 1179 of 2017]
Mr. P.P.N. Roy, Senior Advocate;
Ms. Pragati Prasad, Advocate
[In Cr.A. (DB) No. 560 of 2017]
For the State : Mr. Praveen Kumar Appu, APP
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Oral Judgment
26.07.2021
Per, Shree Chandrashekhar, J.
Mandar PS Case No. 43 of 2012 was lodged on 03.04.2012
against Narayan Sahu, Raju Sahu, Raju Mahto and Lalu Mahto, on an
allegation of committing murder of Renu Mahto in furtherance of common
intention. After the investigation Lalu Mahto and Raju Mahto were sent up
for trial while final form was submitted in favour of Narayan Sahu and Raju
Sahu, which was accepted by the learned Trial Court. Lalu Mahto and Raju
Mahto are convicted and sentenced to RI for life and a fine of Rs. 10,000/-
each under section 302 read with section 34 of the Indian Penal Code with a
default stipulation to undergo further RI for one year.
2 Cr. Appeal (DB) No. 1179 of 2017
& Cr. Appeal (DB) No. 560 of 2017
2. In his fardbeyan which was recorded on 03.04.2012 at around
10:00 AM at RIMS, Ranchi in the unit of Dr. Anil Kumar, Vijay Mahto has
stated that on occasion of puja (Ramnavmi festival) on 02.04.2012 several
persons had assembled for organizing the function. In the morning around
10:30 AM, at the instigation of Narayan Sahu and Raju Sahu his father was
assaulted by Raju Mahto with tangi and Lalu Mahto with lathi. His injured
father was taken to Mission Hospital, Mandar and then to RIMS, Ranchi
where he succumbed to the injuries next morning around 04:40 AM.
In course of investigation, the police examined witnesses who are mainly
the family members of Renu Mahto. Dr. Sanjeev Kumar who conducted the
postmortem examination rendered an opinion that Renu Mahto died due to
head injury. In the trial, the prosecution has examined twelve witnesses out
of which six witnesses are intimately related to Renu Mahto.
3. In Sessions Trial No. 883 of 2012/ TR No. 25 of 2015, the
learned Additional Judicial Commissioner-XI, Ranchi has held that Renu
Mahto was murdered in furtherance of common intention of Lalu Mahto and
Raju Mahto; the prosecution witnesses are reliable and trustworthy, and; the
injury No. (i) over head of Renu Mahto is attributable to Raju Mahto while
the injury No. (ii) was caused by Lalu Mahto.
4. The learned Additional Judicial Commissioner-XI, Ranchi has
held as under:
"23. From the evidence spelt out above it is crystal clear that
PW 1 namely Pustu Mahto, PW 2 Rangnath Mahto, PW 3 Ajay
Mahto, PW 4 Ravi Mahto, PW 5 Sanjay Mahto PW 6 Vijay
Mahto and PW-11 Kandru Mahto have testified in complete
consonance and close proximity with each other by narrating in
their examination-in- chief that on 02.04.12 at about 10.30 PM
a review meeting after process of Ramnavi was going on in the
Shiv Mandir premises of the village. Some persons came to the
house of informant and called him on along with his father-the
deceased Renu Mahto. They reached at the place of occurrence
but within some minutes some hot talks took place and Raju
Mahto gave a tangi blow on the head of the deceased Renu
Mahto and the accused Lalu Mahto gave a lathi blow on the
head of the deceased Renu Mahto from behind. All the above
witnesses have identified both the accused with a great
certainty and clarity and as per these witnesses at the time
when the meeting was going on, an emergency light was
lighting there, and there was an unmistakable opportunity to
identify the accused in the light of the same and really, they
have not mistaken in identifying both the accused.
PW 7 namely Pankaj Kumar Mahto, PW 8 Krishna
Bhagat, PW 9 Arun Kumar Sahu and PW 10 Naresh Mahto
have fully buttressed the occurrence of murder and have been
declared hostile only on the point of identification of the
3 Cr. Appeal (DB) No. 1179 of 2017
& Cr. Appeal (DB) No. 560 of 2017
accused. Their failure to identify the accused cannot affect the
case because all other 7 eye witnesses have identified them.
24. These PWs from 1 to 11 have categorically buttressed the
time of occurrence, place of occurrence, manner of occurrence
and the death of the deceased Renu Mahto. PW 12 the I.O. who
happened to be the Investigating officer has also categorically
mentioned the place of occurrence and has confirmed that the
occurrence took place in the premises of Shiv Mandir which is
at a distance of 20-30 paces only. In view of the above
description the P.O. surfacing in the FIR is of no importance
and it was but natural that at the time of giving his fardbeyan,
the informant omitted to give the exact description of the P.O.
but save and except this minor discrepancy in the P.O. the
prosecution have successfully adduced evidence on the point of
place of occurrence, time and manner of occurrence and
intention of the accused who are facing trial."
5. Mr. P.P.N. Roy, the learned senior counsel for Lalu Mahto
would refer to evidence of the informant who has deposed in the Court that
as many as three tangi blows were given by Raju Mahto on head of Renu
Mahto and Lalu Mahto has only given lathi blows on his back. The
submission is that the assault by Lalu Mahto is not corroborated by the
medical evidence and therefore Lalu Mahto is entitled for acquittal by
extending benefit of doubts. Assailing the findings recorded by the learned
Additional Judicial Commissioner-XI, Ranchi with reference to the
judgments in "Pulicherla Nagaraju v. State of A.P." (2006) 11 SCC 444 and
"Sunny Kapoor v. State (UT of Chandigarh)" (2006) 10 SCC 182, the
learned senior counsel submits that Lalu Mahto was convicted on the basis
of conjectures and surmises.
6. There are as many as six witnesses who have come to the Court
to depose that Lalu Mahto and Raju Mahto assaulted Renu Mahto who
succumbed to the injuries early morning on 03.04.2012. These witnesses are
no doubt intimately related to Renu Mahto but only on the basis of their
relationship their testimony cannot be doubted. In "Sucha Singh & another
v. State of Punjab" (2003) 7 SCC 643 the Hon'ble Supreme Court has
observed that relationship is not a factor to affect credibility of a witness for
it is more often that relation would not conceal the actual culprit and make
allegation against an innocent person. However, it is also well settled that
testimony of a witness who may be inimically deposed and interested in
prosecution of the accused should be examined with little care.
7. PW 1-Pustu Mahto has stated that on 02.04.2012 at around
10:30 PM he was called to Shiva Mandir by Raju Sahu, Karma Mahto and
4 Cr. Appeal (DB) No. 1179 of 2017
& Cr. Appeal (DB) No. 560 of 2017
others where after the procession of Ramnavmi a meeting was going on.
There a quarrel stated between the villagers over donations and in the
meantime Raju Mahto assaulted Renu Mahto on his forehead with tangi as a
result of which the brain mater protruded. Thereafter, Lalu Mahto also
assaulted on the head of Renu Mahto with lathi whereafter Renu Mahto fell
on the ground. He was taken to Mandar Hospital and then to RIMS, Ranchi
where he died during his treatment. He in his cross-examination has stated
that Raju Mahto and Narayan Sahu instigated the accused to beat them and
at that time he was just 4 to 5 paces away from Renu Mahto. He has
reiterated that first of all Raju Mahto assaulted Renu Mahto and then Lalu
Mahto inflicted a lathi blow on him. He has further stated that Rangnath,
Mahadev, Vijay, Chandan Mahto and others were standing by his side.
PW2-Ranghnath Mahto has stated that the occurrence took place on
02.04.2012; in the meeting of Ramnavmi puja Raju Sahu and Narayan Sahu
exhorted to beat Renu Mahto whereupon Raju Mahto gave a tangi blow on
the head of Renu Mahto, as a result of which blood started oozing out and
the brain mater came out. Thereafter, Lalu Mahto assaulted him with lathi.
He has stated in the cross-examination that 40 to 50 persons were present in
the meeting; at the time of occurrence a Gasomax was lighting, and; after
the occurrence there was no stampede. PW3-Ajay Mahto, son of the
deceased, has deposed that on 02.04.2012 Manu Singh, Ranjeet Mahto and
Raju Mahto and others called him for the meeting. He went there with his
brother Vijay Mahto, his father Renu Mahto, Pustu Mahto and his cousin
Rangnath Mahto at around 10:30 PM. At that time, Raju Sahu and Narayan
Sahu instigated Lalu Mahto and Raju Mahto to beat his father. He has also
stated that Raju Mahto gave tangi blow on his father's head and Lalu Mahto
assaulted his father with lathi, and his father died at about 3:00 AM. In the
cross-examination he has stated that Shiv Mandir is at a distance of 30 to 40
paces from his house. PW4-Ravi Mahto, another son of the deceased, has
also deposed in the Court on the similar lines. PW5-Sanjay Mahto has
admitted in his cross-examination that he was not present at the place of
occurrence on the date of incident. PW11-Kandru Mahto was in his house
on 02.04.2012 when Narayan Sahu called him to attend the meeting in the
premises of Shiv Mandir. He has further stated that Raju Mahto gave a tangi
blow on the head of Renu Mahto and Lalu Mahto also assaulted the
5 Cr. Appeal (DB) No. 1179 of 2017
& Cr. Appeal (DB) No. 560 of 2017
deceased with lathi from behind. PW7-Pankaj Kumar and PW10-Naresh
Mahto have not supported the prosecution case and they were declared
hostile. PW8-Krishna Bhagat and PW9-Arun Kumar Sahu are seizure list
witnesses who have identified their signature on the seizure list but on the
point of identification they were declared hostile. PW 12 is the investigating
officer of the case.
8. PW6-Vijay Mahto, the informant, has deposed in the Court that
on 02.04.2012 at about 10:30 PM the accused were holding a meeting in
Shiva temple of the village. At that time, satsang was going on in his house
and they were called to the meeting in Shiva temple. At the meeting, Raju
Sahu and Lalu Sahu instigated Lalu Mahto and Raju Mahto to beat Renu
Mahto, whereupon Raju Mahto gave three tangi blows on his father's head
due to which the brain mater came out. Thereafter, Lalu Mahto gave three
lathi blow on the back of his father. He has further stated that they took his
father to Mandar hospital and then to RIMS, Ranchi but during the treatment
his father succumbed to the injuries on 03.04.2012. In his cross-examination
he has stated that Narayan Sahu and Raju Sahu had no enmity with his
father.
9. The prosecution witnesses have stated that the place of
occurrence was at a short distance from Shiv Mandir and therefore their
presence at the time of the occurrence cannot be doubted. There is no
indication in the cross-examination of the prosecution witnesses as to a
challenge to the presence of the accused and the witnesses at the place of
occurrence and at the time of occurrence. The evidence tendered by PW1,
PW2, PW3, PW4, PW6 and PW11 against Raju Mahto is consistent and we
see no reason to discard their evidence that Raju Mahto dealt a tangi blow
on the head of Renu Mahto. Insofar as evidence against Lalu Mahto is
concerned, there is a little discrepancy in the testimony of the informant
viz-a-viz other witnesses. However, the presence of Lalu Mahto and assault
by him upon Renu Mahto are quite established by the prosecution. The
statement of PW6 that Raju Mahto inflicted three tangi blows on the head of
his father and three lathi blows by Lalu Sahu were little exaggerations, but
for that reason complicity of Raju Mahto in the crime cannot be
doubted - exaggerations per se do not brittle the evidence. The evidence that
Lalu Mahto has given lathi blows on the back of Renu Mahto may not be
6 Cr. Appeal (DB) No. 1179 of 2017
& Cr. Appeal (DB) No. 560 of 2017
consistent with testimony of other witnesses but in the end all have spoken
about assault by Lalu Mahto.
10. Dr. Sanjeev Kumar who conducted the autopsy over the dead
body of Renu Mahto was not produced during the trial, however, the
postmortem report was laid in evidence without objection from the defence
- the order shows that the defence agreed for laying the postmortem
examination in evidence under section 294 of the Code of Criminal
Procedure.
11. The postmortem report reveals the following injuries:
" (a) incised wound (stitched) 09cm x 01cm x scalp deep with 9
stitches, situated on the left parietal region of head cutting the
soft tissue, left parietal wound dura mater and brain.
(b) there is crack fracture of 08cm long over right parietal
bone.
(c) there is contusion of brain and presence of subdural blood
and blood clot over both sides of brain."
12. Under section 293 of the Code of Criminal Procedure,
examination of the doctor who has conducted the post-mortem is not
necessary though the Court has a discretion to call the expert as a witness
and section 294 of the Code of Criminal Procedure provides that where
genuineness of any document is not disputed such document may be read in
evidence in any enquiry, trial or other proceeding without proof of the
signature of the person to whom it purports to be signed. In a criminal trial
what is important is to prove the cause of death and for that purpose
examination of the doctor who has conducted the post-mortem is necessary.
13. Since the doctor was not examined during the trial we would
not look into the cause of death recorded by the doctor in the postmortem
report, but then, it is not disputed by the defence that Renu Mahto has died
due to assault suffered by him in the occurrence.
14. The learned Additional Judicial Commissioner-XI, Ranchi in
paragraph No.27 of judgment under challenge has observed as under:
"27. At the cost of repetition I thought it necessary to mention
that by sharp cutting side of an Axe (Kulahri) only deep and cut
injury is possible and the doctor has found a deep sharp cut
head injury having nine stitches on the head of the deceased
Renu Mahto and from the evidence available on the record this
injury was authored by the accused Raju Mahto. Further a
prudent man have to believe that a crack fracture injury on the
head is possible only by a heavy blow of a lathi or any other
heavy blunt substance and a crack fracture injury of 8 cm long
at right Parietal bone of the deceased was found by the doctor
7 Cr. Appeal (DB) No. 1179 of 2017
& Cr. Appeal (DB) No. 560 of 2017
and the same was authored by none but by the accused Lalu
Mahto. The axe was also found on the disclosure statement of
Raju Mahto."
15. Mr. P.P.N. Roy, the learned senior counsel has tried to contend
that there is serious discrepancy between the ocular evidence and the
medical evidence and therefore benefit must be extended to the accused. The
first thing that has to be always kept in mind in a criminal trial is that the
medical evidence is a corroborative piece of evidence for the prosecution,
and except in a very exceptional class of cases in which the medical
evidence would demonstrate that the manner of occurrence and the injury
caused by the accused as projected by the prosecution witnesses were not
possible, the ultimate result would be guided by the medical evidence.
16. Only two injuries were found on the head of Renu Mahto out of
which one was caused by heavy sharp cutting weapon. The other injury was
caused by heavy weapon and it is not a defence set up by the accused that
Raju Mahto assaulted Renu Mahto from the back portion of tangi also. The
criticism by Mr. P.P.N. Roy, the learned senior counsel for Lalu Mahto to the
findings recorded in paragraph No.27 of the judgment under challenge is
without any substance. A challenge to truthfulness of the prosecution
witnesses on the basis of medical evidence can sustain only when it is
shown to the Court that the prosecution evidence is so wanting in the most
material part of the case.
17. In "Madan Gopal Kakkad v. Naval Dubey" (1992) 3 SCC 204
the Hon'ble Supreme Court has observed as under:
"34. A medical witness called in as an expert to assist the Court
is not a witness of fact and the evidence given by the medical
officer is really of an advisory character given on the basis of
the symptoms found on examination. The expert witness is
expected to put before the Court all materials inclusive of the
data which induced him to come to the conclusion and
enlighten the Court on the technical aspect of the case by
explaining the terms of science so that the Court although, not
an expert may form its own judgment on those materials after
giving due regard to the expert's opinion because once the
expert's opinion is accepted, it is not the opinion of the medical
officer but of the Court."
18. It is only in a case where there is a gross contradiction between
medical evidence and oral evidence and where the medical evidence makes
the ocular testimony improbable and rules out all possibility of ocular
evidence being true, the ocular evidence may be disbelieved. In "Kapildeo
Mandal v. State of Bihar" (2008) 16 SCC 99 the Hon'ble Supreme Court
8 Cr. Appeal (DB) No. 1179 of 2017
& Cr. Appeal (DB) No. 560 of 2017
has held that whenever a plea of discrepancy between the ocular evidence
and the medical evidence is taken the oral evidence of eyewitnesses shall get
primacy if the medical evidence is not totally consistent with the oral
evidence.
19. The learned Additional Judicial Commissioner-XI, Ranchi has
rightly found the evidence of PW1, PW2, PW3, PW4, PW6 and PW11
consistent and reliable. The medical evidence is quite consistent with the
ocular evidence and we find no variance between the two.
20. However, we are of the opinion that conviction of the
appellants under section 302 read with section 34 of the Indian Penal Code
is not proper and requires interference.
21. Mr. Kripa Shankar Nanda, the learned counsel appearing for
Raju Mahto submits that the assault attributable to Raju Mahto in the
circumstances of the case brings his case within Exception 4 to section 300
of the Indian Penal Code.
22. In "Surinder Kumar v. Union Territory, Chandigarh" (1989) 2
SCC 217, a case on which Mr. Kripa Shankar Nanda, the learned counsel
has placed heavy reliance, the Hon'ble Supreme Court has observed that for
the applicability of Exception 4 to section 300 of the Indian Penal Code the
following ingredients must be satisfied:
"7. To invoke this exception four requirements must be satisfied,
namely, (i) it was a sudden fight; (ii) there was no
premeditation; (iii) the act was done in a heat of passion; and
(iv) the assailant had not taken any undue advantage or acted
in a cruel manner. The cause of the quarrel is not relevant nor is
it relevant who offered the provocation or started the assault.
The number of wounds caused during the occurrence is not a
decisive factor but what is important is that the occurrence must
have been sudden and unpremeditated and the offender must
have acted in a fit of anger. Of course, the offender must not
have taken any undue advantage or acted in a cruel manner.
Where, on a sudden quarrel, a person in the heat of the moment
picks up a weapon which is handy and causes injuries, one of
which proves fatal, he would be entitled to the benefit of this
exception provided he has not acted cruelly...."
23. The manner of occurrence as described by the prosecution
witnesses discloses that at the instigation of Narayan Sahu and Raju Sahu
the appellants assaulted Renu Mahto, but Narayan Sahu and Raju Sahu were
not sent up for trial. It is not the prosecution evidence that the appellants
came armed with common object in mind to cause death of Renu Mahto.
There is no allegation of repeated tangi blow by Raju Mahto except the
9 Cr. Appeal (DB) No. 1179 of 2017
& Cr. Appeal (DB) No. 560 of 2017
evidence of PW6 which we find was an exaggeration. PW2 stated in his
cross-examination that previously there was no dispute of any kind
including any old land dispute with the appellants. In the cross-examination
of PW5 on behalf of accused Raju Mahto has stated that he stated before the
police that due to an old dispute accused assaulted his father (para 8), but in
the cross-examination on behalf of Lalu Mahto he stated that previously
there was no dispute with the accused. Both the appellants have caused
single injury to Renu Mahto and, therefore, we are inclined to hold that they
did not take advantage of the situation or acted with cruelty. The injuries
caused by both the appellants are definitely serious and appear
life-threatening - fracture and incised wound in the middle of the head.
Even a single injury can constitute the offence under section 302 of the
Indian Penal Code or under section 326 of the Indian Penal Code or under
section 304 of the Indian Penal Code, and in the ultimate analysis the nature
of injury is ascertained by the facts and circumstances in the case.
24. The learned Trial Judge has though mentioned several
circumstances in paragraph No.25 of the judgment under challenge but has
not considered those in the right perspective. The learned Trial Judge has
observed as under:
"25. At this juncture the pious the duty of this court is to see the
ingredient of the offence u/s 302 IPC and 34 IPC for which the
accused have been charged. To prove a charge u/s 302 IPC, the
prosecution have to prove the following ingredients-
Ingredients of offence - The essential ingredients of the offence
under section 302 are as follows-
(1) Death of a human was caused;
(2) Such death was caused by or in consequence of the act of
the accused;
(3) Such act was done-
(a) with the intention of causing death or
(b) that the accused knew it to be like to cause death, or
(c) that the injury was sufficient in the ordinary cou8rse of
nature to cause death.
And at the same time intention can be gathered on a
consideration of following amongst other circumstances-
(i) Nature of the weapon used;
(ii) Weapon was carried or picked up from the spot;
(iii) Injury was aimed at any vital part of the body;
(iv) Amount of force employed, in causing injury;
(v) Whether act was in course of sudden quarrel or sudden
fight;
(vi) Whether there was premeditation;
(vii) Prior enmity, if any;
(viii) Any grave or sudden provocation;
(ix) Whether there was head of passion;
(x) Person inflicting injury, if had taken undue advantage or
acted in a cruel or unusual manner;
10 Cr. Appeal (DB) No. 1179 of 2017
& Cr. Appeal (DB) No. 560 of 2017
(xi) Whether single blow or several blows were inflicted."
25. From the materials laid by the prosecution during the trial, we
find that the prosecution has failed to prove that death of Renu Mahto was
caused in furtherance of common intention of the appellants and
accordingly, their conviction under section 302 read with section 34 of the
Indian Penal Code is set-aside.
26. The injuries caused by the appellants are grievous in nature and
definitely dangerous to life but their acts are covered under Exception 4 to
section 300 of the Indian Penal Code and, therefore, they are convicted and
sentenced to RI for ten years under section 304 Part-I of the Indian Penal
Code.
27. Accordingly, the judgment of conviction under section 302 read
with section 34 of the Indian Penal Code dated 10.11.2016 and the order of
sentence of RI for life and a fine of Rs. 10,000/- each for the said offence
dated 22.11.2016 against the appellants, namely, Raju Mahto in Cr. Appeal
(DB) No. 1179 of 2017 and Lalu Mahto in Cr. Appeal (DB) No. 560 of 2017
passed by the learned Additional Judicial Commissioner-XI, Ranchi in
Sessions Trial No. 883 of 2012 (TR No. 25 of 2015) are set-aside.
28. Mr. Praveen Kumar Appu, the learned APP states that the
appellant, namely, Raju Mahto who is in custody has served sentence of
more than ten years eleven months, with remission, and the appellant,
namely, Lalu Mahto who has served sentence of five years eleven months is
on bail.
29. Accordingly, Raju Mahto who is the appellant in Cr. Appeal
(DB) No. 1179 of 2017 shall be set free forthwith, if not wanted in
connection to any other case.
30. Lalu Mahto who is the appellant in Cr. Appeal (DB) No. 560 of
2017 and has served sentence of five years and eleven months is on bail and,
accordingly, the bail-bonds furnished by him are cancelled. He shall
surrender to serve the remaining sentence as indicated in this judgment.
31. The learned Trial Judge shall prepare fresh conviction warrant
in the light of this judgment.
32. In the result, Cr. Appeal (DB) No.560 of 2017 and Cr. Appeal
(DB) No. 1179 of 2017 are partly allowed in the aforesaid terms.
11 Cr. Appeal (DB) No. 1179 of 2017
& Cr. Appeal (DB) No. 560 of 2017
33. Let lower Court records be transmitted to the Court concerned,
forthwith.
34. Let a copy of the Judgment be transmitted to the Court
concerned through FAX.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 26th July, 2021
Sharda/S.B./Nibha-NAFR
