Jharkhand High Court

Urnesh Kumar Mahto vs Unknown on 9 March, 2021

IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction}
Criminal Appeal (D.B) No. 762 of 2013

with
Criminal Appeal (D.B) No.763 of 2013

the judgment of conviction and the order of sentences, beth
2.08, 2013 ms assed by the learned Sessions Judges, Dhanbad in
Sessions Trial Na. 273 ef SO} i}

   

in Criminal Appeal (D.B} No.762 of 2013:
Urnesh Kumar Mahto, son of Somar Mahto, resident of
vilage-Bhagabandh Basti, PO & PS-Putki, District-Dhanbad

-. Appellant
in Criminal Appeal (p. B} No.763.of 2013:

Puspa Devi, ee Umesh Kurnar
vilage- 'Bhagab andh: fasti. | PO & PS-Put

    

   

 

Mahto, resident of
Print -Dyharnbe
paws Appellant

 

 

The Stat 'eof Jharkhand es eee in tit ey
oo in bath cas

(Heard through ¥.C on 08" March, 2021)

PRESENT

HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
-HON'BLE MR. JUSTICE RATNAKER BHENGRA

 

x

For the Ap pellant(s) ovo. Arwind- Kar Si nigh, Advocate
For the State -- > Mr. Shola Nath Ojha, APP

  

Oral. Judgment
OG% March, 2021

er, Shree C} sandrashekhear,

 

On 2S" December, 2010 at about 03:00 PM the
fardbeyan of Mohan Mahto was recorded near river Kari by 8.K.
Suman, Officer incharge of Bhagabandh Outpost within Putki
PS. An infermiation along with the fardbeyan of Mohan Mahte

s

Was Serf fo Putki PS at O8:00 PM and on that basis Purtki
(Shagabandh) PS Case No. 115 of 2010 was lodged against
Urnesh Kumar Mahto and Puspa Devi for committing murder of

their sor Ajay Kumar Mahto ~ Puspa Devi is the step rnother
 

 

bh

  

Ce dap LOBE oe

In Ris fardbeyan, Mohan Mahto has stated that at about
O1:00 PM Babha Mahto inforrned him that Aiay Kumar Mahto
was murdered and his deac hody was concealed at cremation
ground near river Kari - Ajay Kumar Mahto was son af his
daughter. Upon receiving this information he had gone to the
house of his son-in-law who was not there at that tume and his
grand children told him that on 26.12.2010 Ajay Kumar Mehto
was strangulated by their father and step mother with a cloth.
The informant has further stated that Umesh Kumar Mahto
threatened his younger son mot to disclose the incident to

vi

anyore and or 2, ods 2€010, early morning at 0200 AM, buried

       
     

the dead body ¢ sor in the crematic wid: The informant

 

has seen that head ard feet of the dead body. MS. grandson
were out of the ground and expr essed his apprehen ier that hi
sorvin-law and Puspa_ Devi had killed Ajay Kumar Mahto

because Umesh Kumar Mahto was suspecting illicit relationship

  
 

of his som with Puspa Devi, his fourth wife. In COUrSE oF

investigation statement of Vijay Kumar Mahto, younger son of
Umesh Kumar Mahto, was recorded but ne information is
available on record about Nandini Kumari the sister of the

deceased who was aged about 9 years, fat the time of the

 

ocourrence. The statement of Pr Vijay Kumar Mahto was recorded
also under section 164 of the "Code of Criminal Procedure
{hereinafter referred to as CrPC}, PW2 and FPWé4 are distantly
related to PWS, the informant. PW6 was Officer Incharee of

bandh OP, PWS is the Circle Officer whoa has conducted

 

the inquest proceedings and PWS is the Judicial Magistrate who
has recorded statement of Vuay Kumar Mahto under
section 164 CrPCoon PS.O1L 2011.
e, Dr Shatlendra Kumar who has conducted the
postmortem examination on 29.12.2010 at PMCH, Dhanbad
around 12:30 PM found one ligature mark on front of the neck
1% inch wide, below the vocal cord. The Heature mark which
surrounded the neck cornpletely and horizontally had become

hard, dark brown leathery and like parchment. On dissection
 

 

 

Sawa

  

ecchymosis was seen underne: ath the Hgature mark all aver
trent of the neck on both sides. In the opinion of the doctor
death was caused due to asphyxia resulting frorn strangulation
and time elapsed since death was 48 hours lfA}{-}12 hours}, On
eempletion of the Wivestigation a char gesheet was fled a against
the accused and both have faced the trial on the charge under
sections 302/201 /34 of the] Inclian Penal Code.

3, The learned Sessions Judge, Dhan bad has held that
in his statement under section 164 CrPC which was recorded

within one month of the occurrence Vijay Kumar Mahto has

given a similar fhe Yratior of P the: oveur ren c€ as he deposed in the

   
 
 
 
  

Court and the 'refore chance of h cared evidence or

he ground that he had ren uence of his

mate acpial cr graridfa sther was = 20

&

 

Sabable,. His evidence that his

 

parents strangulated to death was corroborated

 

co

by the meclical evidence. and therefore on the ground af

 

Noneproduction of the. seized  €fticles such ae

bedsheet and hoe ( a the prosecution Story 'cannot be

   

disbelieved. The learned tie tial Judge has ve ntured to consider

  

character of the witnesses. and conduct of. the accused who

according - ta the 'Prosecution did. Rot in

 

f orm the "police abet

 

missing of his. son. in paragraph no. 23. oF the judement in

. Aaah Re

Sessions Trial No. "2? 3 of 2011, the learned Sessions Judee has
held that the accused intended to kill Ajay Kumar Mahto and
"Heir criminal act was Het covered by any EXCEPLON in section
300 of the Indian Pen: al Code. The learned sessions Judge has
held as under:

"28, in this Case, Prosecution evidence is thar murder of

Ajva Mahto was tonunited by Both the ACCUSEd persons
inside their }

POUSE, Section 34 IPC ens saged when a
creminal aet is done BY several persons ih furtherance of
the common. intention of all euch ef such Persons is Hable
for that act in the same PRGNKEePr Gs it were done by him
cone, Wricherlitrg prmeiple 2 of section af is thet f tea or

'ad

Me BErsons intentionally do an act jomtly, the position in

S just the same as Uf each of them has cone it
ined ally by himself or Herself. fis not hecessary
several PEFSONS Charged unth

;
1ee Jointly rust be the same cr ie dentic :
may be different ty character but must have been

 
 

 

 

ninton Duertion in order fo
which has been erinictecd

Me
mr the princtole of jomt ability i ut the « doing of a crumineal
evidence and does nal create

actuated by one and the same c

2
attract the provision of section Ss
2 :

oe

 

a substantive offence, fetention is always gathered from
the surrounding circumstances, Te s strangulate nee a 'of a
gnerson is suggestive that accused had intention fo kill the
deceased. TE om eis prosecution evidence that reck k of Ajay

Mahio was strar guiated and this ecular y version alse find

support from medical evidence, Therefore, act of both ihe
fd persons come Ltn armpit of m murder and does
aFLLy EXCePUort of section GO PC.

o
ose
eo
&
oy

 
  
 
 
  

case, there is consistency in n eular y version and
l evidence. Previous and subsequent conduct af both

accused persons is deplorable. Ree covery of bed sheet
used for stra ngulation, Rudal used for diggiig the
ing the dead body, was
' persons, Though
Rot admssibie

   

heen

   

 

     

 

wei of > cider sion, a8 court comes to coriclusion
'SECON AON hee succeeded to explain delay in FIR,
and sub se qu went CONC duct of the accused person

*

ss from their house has als 1 preved. 7 "Therefore. prosecution proved its case against, the accused. Persons by adducing reel 'able, cogent, clnichinig and coarisistey in the light of LECISTIMN 2 of the Hon' e e Apex ¢ @ prt b "hoth the accused persons are not entitled for benefit i the accu sed persons guilty of " death ¢ ot AQAY 12.10 naling hus dead the bunk of Ke are wr - within

"Se oe ae fm, oe

a g

penis & Sy

ena.

sep ont

Toy:

* as

"ES

f v, s t

hold beth

hy According to the prosecution, Viay Kumar Mahto saw

the appellants committing murder of his brother. There seems two eyewitnesses in the case but Nandini Bunari, younger daughter of the victim, was not produced during the trial. She

WAS aged about 9 years at the time of the occurrence and

seeping in mind that age of a witness may be relevant bat not a ground to discard her testimony, non-examination of Nandini Kumari may affect the prosecution case. However, if the prosecution produces cogent and consistent evidence and Vijay

suumar Mahto is found a reliable and trustworthy witness merely on the ground that Nandini Kurnarl was not examined during

the trial the prosecution story about the appellants commit ting

lta

murder of their son cannot be disbelies

effect of no

case can be examined after scrutirizing other

x the trial,

weet abs oo pe oA ¢ woo ~ anes

evidences

5. In "Sawa! Das uv State of Bihar" (1974) 4 SCC 193 the

Hon'ble Supreme Court has observed as under:

bby an reghs Saye sep Eb eee pea pee

he Pigh Court had correctly

of cree evidence of Rive

el, » PW i, Ne and B share, PW 2, Radhey

; Vv 16, and Basdeo

aed or watched from

rom varying | as MAPLCRS, oft nak was going on in the :

2 UuLGe

ne murder was

rt ee

- plac Ce

ud,

Sey ee the fe mead servant, Geeta.

tehTR? CASE, ee AS also

ine

Re prosect

triad

CREPE i

"oy

£ svidden oe Act | LEW

1ery "well | have Shown. Pig leg aug part in bri af (Om t Dent There is 8 SOME § evide

PEL LU vho i ints

"whied A moh, ray

tom the cf "Cut stances of + the case, Geeta Servant was @ iness essential to the

o There is no prohibition in law in convictin g the

accused on the basis of testimony of a solilary eyewitness

provided Ius evidence inspires confidence of the Court -- as a

yemeral rule the Court may act on the testimony of a single

eyewitness, Section 194 of the Evidence Act provides that no

particular number of witnesses is required in army case for the

a vd

proof of a fact.

import of section 134 of the Evidence Act is

the Court may act on the testimony of a Single witriess

provided he is wholly reliable,

Ca dane (28) Ne Seber eis

ms >

P Strictly speaking, at the time of the occurrence Vijay Kurnar Mahto was a child. From his testimony we gather that before his evidence was recorded in the Court the learned trial Judge did not assess his maturity. The reason seems to be that at that time he was aged about 1S years. &. The prosecution case is that around 03:00 PM on 26.12.2016 the appellants strangulated Ajay Kurnar Mahto to death in their house and the dead body was concealed there for about L2 hours. Early morning, on 37.12.2010, Umesh Kumar Mahto forced His younger som to help Him causing risappearance of the dead body and on 28.12.2010 sorneone has seen a part of the dead b ady of Alay Kerr AY. Mahto visible in the cremation ground near river Kari. Who has free aden dead body

of Ajay Kumar Mahto is not know n and who is the wornan whn

of Ajay Kumar Mahta™

informed PW4 about murder | t revealed by him. The dete nee CASS is that Atay Kummer Mahta Was

missing since 26.12.2010 and - p ie 4e home stealing Rs. "500/+,

The prosecution has tr Jed to demonstrate that to misicad the villagers Umesh Kumar Mahto had spread a false information

that his elder son had fled away, but no se

ager has come forward. to suppor rt the prosecution on th s point. Q, The testimony of PWi has" "been challenged by the deferice on the ground of his unnatural conduct. He is younger brother of the victirn who remained at horne and for three days did not disclose the incident to ary other person. His maternal andfather was Hving riearby, his maternal uncle had a shop fust about 50 feet away arvl there was a temple whic th WAS thronged by local people playing cards there. Conduct of a witness per se is not a ground to discard his testimony but we are requirerl to examine whether there is any satisfactory

explanation for his urnisual conduct. PWI has deposed in the Court that his father had threateried him and we would assume hat he was afraid, but then, if that is so how he could 5 gather eourage to inform his maternal grandfather about the

occurrence is difficult to see,

"ad

LO. In "Merutt Rama Naik uw. State af Maharashtra » 2003) $0 SCC 870 4 witness, who was a close relative of deceased Krishna Mahada Naik, was going te the bus-stand to board a bus to reach his factery where he was working. On the way he saw the assault on the Krishna Mahada Naik by the assailants melding the appellants. But having noticed the incident, he dic net go to any one of his relatives ar the police to inform about the attack In question. He went to the factory, worked there fora while and thereafter gone home. The Hor ble Supreme Cerurt has observed that the Court w ould be hesitant to place any relkance on his evidence. |

Eh. oF rom: Cross: examina tion. of =

utes Op patent ¢ hat the

PW on the groune 4 that h r influence of his qnate nal

eran father, and the wit ations

against Umesh Kumar Mahto which were not supported by other

cutig n

'independer evidence, Ina. sessions trial, where the pro

witnesses have tender "ed unsubstantiated allegations and the defence has challenged their testimony or the ground of

animosity, the learned Judge in-charge of the séssions trial must

remain alert at al umes. 7 |

12. She - Aden ce of PW1 is' not 'free from doubt. His statements in the cross-examiriation nrovide a solid background for the defence that there was probability of a tutored evidence tendered by hirn, His admission in the cross-examination that he would ask his father not to marry again gives a hint about his dislike for his father. He had lost his mother and according to his maternal grandfather she was burnt to de cath } by his father. Naturally he would not have such affection for his father as 4 loving son may demonstrate. There is evidence om record which indicates that the probability of his living with his maternal grandfather cannot be ruled out. These circumstances mnidicals &. reason for him to give a tutored false evidence against iis father. it is also eurprising that he has not stated anything about the

iffairs of house, if he was staying with his father. And, he has

not made any allegation of harassrnent, torbure or beating at the hands of fis step mother. His statements in the cross-

smamination which have rio fourclation ar corroboration by other

riats create further dewbt on his testimony.

3. The fardbeyan of PW2 was baseci on the information given to him by FW and PW4. However, in the fardbeyan and

wher he deposed in the Court, PWS has not stated about beating of his grand children at the hands of his son-in-law whereas PWi has made specific allegations against his father that he used to beat his brother. In the First information Report here ig an allegation that the appella Wis strangulatedl Ajay

¥.

Rauimar MM: ahte with eloth but there is sno referer <a of a bedshert

erm for strangulation. Apparently, wh

used by th

: Ak & POPS or & cloth which would have ft in the stery given by the informant

VIREO

was not found in the house of ' °

" Jot ~ Beg gee BY GC CUSEC SLory SPHEET

ant

a 4 :

for strangulation was floated. The dimension of the

bedsheet has been given by PWi in his evidence and by any

held that a bedsheet of the

stretch of uragination it cannot be size S feet x 3 feet would cause strangulation mark of 1M inches.

lho. PWS, Dr. Shalendra Kumar r though has stated in huis

evidence that lg: x ay Kumar Mahto can be caused °y a beds sheet but Ais of iniéir he ibe im the realm of confurictures because the bedsheet allegedly used im the crime

was not shown ta him. The evidence of a medical man is his

opinion and it is mot conclusive or atleast carinct be the sole

for conviction.

+ x, SR Pa Fe OX gee ho Rp be bees elt ; Ryryssey? ey f fF OOH iS in "Aindan Gopal Kakkad v. Naval Dubey" {1992}

pooh

the Hon''ble Supreme Court has held as under:

i ¥ he. Poi tt all auiterials

oy ye Ry ey oy ey tte! ; on the technical asp ; SNS et one Oo ny gaat saience se that the Court QE Jud gment on Tose

tes the exnertUs EArior.

EYOU OTL is MOCED IE d, Hors rnot fae

me RUUON C

ofthe Cart."

16, There may appear doubt on involvement of Umesh Kumar Mahto in murder of his son, but once evirlence of PW Lis exchided what remains on record is dewht only. The basis of suspicion: was delay on his part to inform the police aberut missing of his son, but when there is clear doubt whether Ajay Kumar Mahto was living with his father no adverse inference on the conduct of Umesh Kumar Mahto can be drawn. On the other mand, he has taken @ position that on 28.12.0010 he had e Sone

te the police station ta lodge a report of missing of his son and

he Was & rrested there.

under the ini uence e 0 fr his broth er-inele

@hto was arrested

According to the prosecution Umesh Kamar M

rom his house and he snih red @ disclosure ent in the same evening but there is. no conclusive eviderice on this point,

rather in the cross- -examinatior apeciiic question WAS

pur to the witness about arrest of Umesh K LUTLaYr Mahte

potice station. We further find that the disclosure statement of Urnesh Rumer Mahto is not in tune with the prosecution. story

masmuch as no witness has spoken about iulicit re Hatioriship of Ajay Suumar Maht co who was aged about TG: years eo cowith His

Wr. Se ate SR EG A Ler POUATYET

Mahto to change z nominee ai nis service recor d would also not be a reason to kill him, for on his death name of Puspa Devi would mot automatically be recorded as nominee of Umesh EKurnar Mahto. It seems that the prosecution has not disclosed true

facts and there is no witness who has seen mur der of

Sumar Mahto. Any recovery was made at the instance of the accused has not been proved, still, the learned trial Judge has maced rellance on the recovery evidence. We further find that the learned trial Judge has committed serious error in law in holding that Puspa Devi was liable for murder on the principle of joint criminal Habflity. The learned trial Judge has recorded laxity on the part of the investigating officer and we also find

that there are missing materials, which could have been

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3 oy page iI Cr daeetd (DEI Ne. 262 af 2013

Cr dament

Penal Code and RJ fer two years and a fine of Rs 1Q00/- each ander section @O1 of the Indian Penal Code, both dated 02.08.2013, passed by the learned Sessions Judge, Dhanbed in Sessions Trial No. 273 of 2011 for causing death of Ajay Kurnar Mahto and disappearance of his dead body, are set-aside,

2. Mr. Bhola Nath Ojha, the learned APP states that the appellants above-named, who have served the sentence for more than iS years and 4 months, with remission, are in custody.

see Accordingly, the appellant, namely, Umesh Kumar Mahto a Cy ruminal, Appeal (D.B} . No, FO of 2O1S]) and the neal (D.B) No.7 S&S

forthwith, if rot

' Be sary elic TY na ap DEMETE Dt ame f

y, Puspa Devi fin » Crint : af SO13) "be are in custacky shall he setelt

wanted in connection to any other criminal case.

wk. in the result, Criminal Appeal (D.B) No, 762 3 of 2013 and Criminal Appeal (D.E} No "763 of 2013 are allowec

we, Let the lower Court. records be sent to the'C sonar ecmeerned forthwith.

oo, Let a copy of the judgment be transm ited to the

Court concerne d and the cancerned Jail Supert fenident through

'Fax', foes. - Sd . (Shree Chandrashekhar, J) Sd/-

(Ratnaker Bhengra, JO