Nando Mahto vs The State Of Jharkhand
2023 Latest Caselaw 1511 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                (Criminal Appellate Jurisdiction)

                     Acquittal Appeal (DB) No. 93 of 2018

(Against the judgment of acquittal dated 6th September 2018 passed by the learned
Additional Sessions Judge-XIV, Hazaribag in Sessions Trial No. 286 of 2010/ Sessions
Trial No. 515 of 2011)
                                    ------
Nando Mahto, son of Babu Mahto, resident of Village/PO/PS: Barkagaon,
District: Hazaribagh.                                   ...... Appellant
                                  Versus
1. The State of Jharkhand
2.Ghanshayam Prasad Mahto, son of Bulu Mahto, resident of Shiwadih,
PO/PS: Barkagaon, District: Hazaribagh
3. Manoj Mahto, son of Baleshwar Mahto, resident of Shiwadih, PO/PS:
Barkagaon, District: Hazaribagh
4. Malo Devi, wife of Kedar Mahto
5. Kedar Mahto, son of Late Rangu Mahto both residents of Gurchatti
PO/PS Barkagaon, District: Hazaribagh
6. Bulu Mahto, son of Late Jitan Mahto
7. Krishna Mahto, son of Chedi Mahto both residents of Shiwadih PO/PS:
Barkagaon, District: Hazaribagh
8. Shanti Devi, wife of Malu Mahto, resident of Guruchatti, PO & PS
Barkagaon, District: Hazaribagh
9. Suganti Devi, wife of Akhilesh Kumar
10. Mahendra Mahto, son of Tribhuwan Mahto, both residents of Shiwadih,
PO/PS: Barkagaon, District: Hazaribagh.              ...... Respondents
                                       ---------
                                 PRESENT
         HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
             HON'BLE MR. JUSTICE RATNAKER BHENGRA
                                 -------
      For the Appellant      : Mr. Pradeep Kumar Prasad, Advocate
      For the Respondent     : Mr. Saket Kumar, APP
                                -------
                                                    Oral Order
                                                    th
                                                   6 April 2023
Per, Shree Chandrashekhar,J.

Nando Mahto who is the father of Akhileshwar has preferred this Acquittal Appeal against the judgment dated 6 th September 2018 passed in Sessions Trial No. 286 of 2010/ Sessions Trial No. 515 of 2011.

2. Barkagaon PS Case No. 71 of 2009 has been registered by virtue of an order passed under section 156(3) of the Code of Criminal Procedure on the complaint case filed by Nando Mahto against Ghanshayam Prasad Mahto, Manoj Mahto, Malo Devi, Kedar Mahto, 2 Acquittal Appeal (DB) No. 93 of 2018

Bulu Mahto, Krishna Mahto, Shanti Devi, Suganti Devi and Mahendra Mahto.

3. After the investigation, a charge-sheet was laid against Ghanshayam Prasad Mahto under section 365 and 346/34 of the Indian Penal Code who faced the trial in Sessions Trial No. 286 of 2010. Subsequently, a second charge-sheet was filed against other eight accused persons against whom Sessions Trial No. 515 of 2011 has been registered. However, both the sessions trials were not amalgamated but continued simultaneously.

4. By a common judgment, the learned Additional Sessions Judge- XIV, Hazaribagh has acquitted the respondents of the charge framed under sections 363, 365, 323, 307 and 346/34 of the Indian Penal Code.

5. The manner in which the common judgment in both the sessions trials has been delivered indicates lack of knowledge on the part of the learned Additional Sessions Judge. By no stretch of imagination, by a common judgment two sessions trials which continued independently and the witnesses tendered separate evidence can be heard together and disposed of.

6. However, it is admitted at Bar that witnesses in both the sessions trials have tendered similar evidence on similar lines.

7. Moreover, the judgment in both the sessions trials has been rendered on merits after discussing testimony of the witnesses and, therefore, we have decided to hear this matter on merits.

8. Mr. Pradeep Kumar Prasad, the learned counsel for the appellant, submits that Ghanshayam Prasad Mahto was last seen in the company of Akhileshwar on 28th June 2008 and thereafter Akhileshwar has not been seen alive.

9. The contention raised on behalf of the appellant is that Ghanshayam Prasad Mahto must inform the Court what happened on 28th June 2008 after he has taken away Akhileshwar and Suganti Devi on his motorcycle.

10. Admittedly, the case against the respondents is based on circumstantial evidence. There is no other evidence produced by the prosecution to establish the charge of kidnapping and attempt to murder, 3 Acquittal Appeal (DB) No. 93 of 2018

except the statement of Nando Mahto who has been examined as PW6. He has deposed in the Court that his son was last seen in the company of Ghanshayam Prasad Mahto.

11. In a case based on circumstantial evidence, the prosecution is under a duty to lead cogent, clear and consistent evidence so as to establish the circumstances which must be of a definite character. The prosecution must also establish that all the circumstances taken together are indicating towards the guilt of the accused and, that, all hypothesis of innocence of the accused are ruled out.

12. The case in brief is that Akhileshwar was kidnapped on 28th January 2008 when he had gone to participate in Saraswati Puja procession and the accused persons forced him to tie the nuptial knot with Suganti Devi. After the marriage, Suganti Devi came to the matrimonial home and created ruckus with the family members of Akhileshwar. The further case set up by the prosecution is that on 28th June 2008 Ghanshayam Prasad Mahto came to the house of Akhileshwar and on the pretext of visiting Banse Mela took away Akhileshwar. Thereafter in the evening Suganti Devi returned home but Akhileshwar has remained missing.

13. The learned trial Judge has referred to the evidence tendered by the prosecution witnesses in both the sessions trials and held that the offence under section 365 of the Indian Penal Code has not been proved.

14. The learned trial Judge has held as under:

"28. Now, coming to S.T.Case no. 286/10 in which only one accused namely Ghanshayam Prasad Mahto is facing trial u/s 365, 346 of the I.P.C From careful perusal of the evidence of witnesses it appears that they have stated that on the alleged date of occurrence accused Ghanshayam Mahto came on motorcycle and with the consent of the guardian took Akhileshwar Kumar and Suganti Kumari on motorcycle for visiting Banse mela. P.W.1 in cross-examination at para 11 has stated that her brother Akhilesh left the houses and told them that he was going to visit Banse mela. P.W. 2 the mother of the victim namely, Bilaso Devi has stated that she did not know anything about the marriage between Akhilesh and Suganti. She has admitted that there was no panchayati for their forced marriage. P.W.3 is a hearsay witness since stated that Ghanshyam did not drag Akhilesh for going with him. He has stated that his statement was not recorded by the police. PW. 4 is Arbind Kumar who has stated that he could not state the date of occurrence and admitted not have seen any document regarding age of Akhilesh. He is also a hearsay witness since stated that the father of Akhilesh had told him about his disappearance. He has also stated that the police had never recorded his statement. P.W. 5 is Ranjeet Kumar, brother of the 4 Acquittal Appeal (DB) No. 93 of 2018

victim who has stated that police was informed about the occurrence but no written report has been brought on the record. P.W.6 is Nando Mahto, the complainant, who has stated about the occurrence. In examination in chief he has stated that he did not remember the date of kidnapping of his son. He could not know about disappearance of his son however when the girl was dropped in his house only then he could know about the kidnapping of his son. At para 7 he has stated that his son was forcibly taken from the house but he did not inform to the police about the same."

15. The offence under section 363 of the Indian Penal Code is constituted when the following facts are established: (i) a person below the age of 16 years if male or below the age of 18 years if female was kidnapped and (ii) the victim was enticed away from the lawful guardianship without consent of the guardian.

16. In the present case, prosecution has failed to establish that Suganti Devi was enticed away and, that, she was below the age of 18 years on the day of occurrence.

17. Similarly, the offence under section 365 of the Indian Penal Code has also not been established against the accused persons. There is a reference of enmity between the parties and this is also not in dispute that Suganti Devi had joined the company of Akhileshwar in the matrimonial home. It appears that on account of the disputes between the parties, one of the reasons was that Suganti Devi was older in age by 4-5 years and, that, Akhileshwar was abducted and forced to marry Suganti Devi, a Complaint Case was filed by Nando Mahto. This is the evidence on record that Akhileshwar had made an application for passport and till date he is traceless. Moreover, there is absolutely no evidence against the respondent nos. 3 to 10 out of whom there are female folks of the family of Ghanshayam Prasad Mahto.

18. There are judicially evolved parameters to examine the circumstances under which a judgment of acquittal can be interfered by the Appellate Court.

19. This has been held by the Hon'ble Supreme Court in a catena of judgments including "Jaswant Singh v. State of Haryana" (2000) 4 SCC 484 that there must be compelling circumstances to interfere with the judgment of acquittal and, that, the finding of fact recorded by the 5 Acquittal Appeal (DB) No. 93 of 2018

trial Court should not be easily interfered by the Appellate Court on a mere minor mistake in appreciation of evidence.

20. In "Jaswant Singh" the Hon'ble Supreme Court has observed as under:

"21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable" it is a compelling reason for interference (see Shivaji Sahabrao Bobade v. State of Maharashtra). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat : (SCC p. 229, para 7) "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then -- and then only -- reappraise the evidence to arrive at its own conclusions." (See also George v. State of Kerala)."

21. Having examined the materials on record, we do not find any ground to interfere with the judgment of acquittal rendered in Sessions Trial No. 286 of 2010/ Sessions Trial No. 515 of 2011 in favour of Ghanshayam Prasad Mahto, Manoj Mahto, Malo Devi, Kedar Mahto, Bulu Mahto, Krishna Mahto, Shanti Devi, Suganti Devi and Mahendra Mahto and, accordingly, Acquittal Appeal (DB) No. 93 of 2018 is dismissed.

22. 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: 6th April, 2023 S.B./Nibha-N.A.F.R