Jharkhand High Court

The State Of Jharkhand Through The ... vs Tara Pado Mahatha on 10 January, 2023

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                                                            Acquittal Appeal No.33 of 2001




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Acquittal Appeal (DB) No.33 of 2001
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(Against the Judgment and order of Acquittal dated 20th February, 2001 passed by the Additional Sessions Judge, IInd, Bokaro at Chas in Sessions Trial No.219 of 1999)

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The State of Jharkhand through the Deputy Commissioner, Bokaro ..... Prosecution/Appellant

Versus

1. Tara Pado Mahatha, son of Manpuran Mahatha.

2. Manpuran Mahatha, son of Late Rameshwar Mahatha.

3. Mahadeo Mahatha, son of Jyoti Lal Mahatha.

4. Padma Lochan Mahatha, son of Dashrath Mahatha.

5. Badri Nath Mahatha, son of Mahadeo Mahatha.

6. Bibhuti Bhusan Mahatha, son of Shyam Lal Mahatha.

7. Sadhan Kumar Mahatha, son of Manpuran Mahatha.

8. Madan Lal Mahatha, son of Manpuran Mahatha.

9. Gopi Nath Mahatha, son of Late Mahadeo Mahatha.

10. Ayodhya Mahtha, son of Late Rameshwar Mahatha.

11. Balram Mahatha, son of Late Rameshwar Mahatha All residents of Saharjori, Police Station Chandankiary, District Bokaro ..... Accused /Respondents

PRESENT HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND .....

For the Appellant : Mr. Satish Prasad, A.P.P. For the Respondents : None .....

09/Dated 10th January, 2023

Per Sujit Narayan Prasad, J.:-

The matter has been heard at length with consent of the

learned Addl. Public Prosecutor and the same is being disposed

of. However, none represented the respondents.

2. The instant appeal is preferred under Section 378(1)(5) of

the Code of Criminal Procedure, wherein the Judgment of

acquittal dated 20th February, 2001 passed by the Additional

Sessions Judge IInd, Bokaro at Chas in Sessions Trial No.219 of

1999 has been assailed.

3. This Court before entering into the legality and propriety of

the impugned judgment of acquittal, deems it fit and proper to

refer the prosecution story in brief as per the statement made

by the informant-Bhagirath Mahatha in the fard beyan, wherein,

the allegation has been levelled that on 12th August, 1998 at

about 07:00 a.m. in the morning he along with his elder brother

Durga Charan Mahatha was pruning passage of his field where

all the eleven accused persons came. One of the accused,

namely, Tara Pado Mahatha was armed with farsa and another

accused, namely, Mahadeo Mahatha was armed with tangi and

rest of the accused persons were armed with lathi and the

accused Manpuran Mahatha ordered to assault because they

were pruning the passage of the field. On the order of accused-

Manpuran Mahatha, all of the accused persons started

assaulting both of them, the informant and his brother Durga

Charan Mahatha. It has further been alleged that accused-Tara

Pado Mahatha assaulted with farsa on the head of informant's

brother, namely, Durga Charan Mahatha and accused-Mahadeo

Mahatha assaulted with tangi on the head of the informant-

Bhagirath Mahatha and others assaulted both of them with lathi.

It was also stated that when the informant was giving fard

beyan at that time his brother was senseless. He further stated

that on hulla villagers, namely, Sitaram Mahatha, Sudhir

Mahatha, Sagar Mahatha, Ram Nath Rajwar, Bachhu Mahatha,

Dilip Kumar Mahatha and Brikodar Mahatha came and saw the

occurrence and they brought both the injured i.e., informant

and his brother to Chandankiary Hospital for treatment in

injured condition. The Chandankiary police registered the case

under Sections 147, 148, 149, 323, 324 and 307 of the Indian

Penal Code (in short "I.P.C.") Subsequently injured-Durga

Charan Mahatha died on way to Bokaro General Hospital,

therefore, the Section 302 of the I.P.C. has been added.

The police, on conclusion of investigation, has submitted

the charge-sheet and the cognizance was taken by the

concerned court and the case was committed to the Court of

Sessions from where the case was transferred to the court of

learned Additional Sessions Judge-IInd, Bokaro at Chas. The

charges were framed against the accused persons to which they

pleaded not guilty and claimed to have been falsely implicated

on account of previous enmity.

The prosecution has examined altogether 15 witnesses

and upon which a conclusive finding has been arrived by the

trial court that the prosecution has failed to prove the charges

beyond all reasonable doubt and in consequence thereof, the

appellants have been acquitted from the charges by the

impugned judgment which is the subject matter of the instant

appeal.

4. Mr. Satish Prasad, learned counsel for the State-appellant

has submitted that the trial court while acquitting the appellants

has discarded the testimony of the eye-witness i.e., P.W.-6 (Lilu

Mahatha). According to the learned counsel, the P.W.-6 in

categorical term has stated in the deposition that the accused

have assaulted his brother, namely, Durga Charan Mahatha

which ultimately resulted into his death. Therefore, the

submission has been made that P.W.-6 has given statement in

his testimony about the place of occurrence. The accused

persons having been named, who have assaulted Bhagirath

Mahatha and the other injured persons but the testimony of the

aforesaid witness has completely been discarded by coming to

the conclusion that the prosecution has failed to prove the case

beyond all shadow of doubt against the appellants.

Submission has been made that, since, it is the specific

statement of P.W.-6 given before the learned trial court taking

the name of the accused persons about their complicity in the

occurrence and as such, the same ought not to have been

discarded by the learned trial court. Therefore, the finding

recorded by the learned trial court holding therein that the

prosecution has failed to prove the charge beyond all shadow of

doubt cannot be said to sustainable in the eyes of law. He has

further stated that the other witnesses have also corroborated

the version of P.W.-6 but even the same has been discarded by

the learned trial court and as such, on the ground also, the

judgment impugned is requires interference by this Court under

its appellate jurisdiction.

5. We in order to scrutinize the submission made on behalf of

the State-appellant in assailing the impugned judgment requires

to go through the deposition of the witnesses which have been

considered by the learned trial court particularly the testimony

of P.W.-6.

The P.W.-1 Ambuj Mahatha and P.W.-3 Ram Nath Rajwar

have been declared hostile by the prosecution. P.W.-5 Chandra

Kant Mahato is a witness of the inquest report prepared by the

police and his signature over the same has been marked as Ext.

1/C. P.W.-2 Ranjit Hazara, P.W.-4 Basudeo Mahatha, P.W.-6 Lilu

Mahatha, P.W.-7 Ashutosh Mahatha, P.W.-8 Brikodar Mahatha,

P.W.-11 Sita Ram Mahata, P.W.13 Dilip Kumar Mahatha, P.W.-

14 Sudhir Mahatha and P.W.-15 Sagar Mahatha have been said

to be the witness on the occurrence. P.W.-9 Dr. R.P. Verma held

the post mortem examination of the deceased Durga Charan

Mahatha and P.W.-12 Dr. Birendra Kumar, who was posted in

Primary Health Centre (P.H.C.) of Chandankiary and had

examined injuries of both the injured. Mr. Sudhir Kumar

Choudhary, who was the Investigating Officer has been

examined as P.W.-10.

It appears from the judgment passed by the learned trial

court that the trial court has considered the testimony of P.Ws.-

2, 4, 6, 7, 8, 9, 10, 11, 13, 14 and 15 at length, therefore, we

are proceeding to scrutinize the evidence of these witnesses on

the basis of which the learned trial court has found, the charge

having not been proved beyond all shadow of doubt so as to

come to a conclusive finding in order to assess the legality and

propriety of the impugned judgment.

6. The P.W.-2, namely, Ranjit Hazra has stated in his

deposition that he was ploughing in the field of Jagdish Mahatha

and at that time there was scuffle between Durga Mahatha and

Bhagi Mahatha. He further stated that Bolu, Monu, Ojhu,

Mahadeo and Tara Pado came and amongst them Mahadeo was

armed with tangi and Tara Pado was armed with farsa and

Mahadeo assaulted to Durga Charan Mahatha with the tangi

over his head. He further stated that Tara Pado has assaulted to

Bhagirath with farsa. This witness further deposed that he fled

away from there and he has heard that both injured persons

have been taken to their house and in way Durga Charan

Mahatha has died. He has identified the accused persons, who

are standing in the dock.

In cross-examination he has stated that he cannot say

who has assaulted to whom since he had fled away from the

place of occurrence.

7. One Basudeo Mahatha was examined as P.W.-4 and he

has supported the prosecution case and in cross-examination he

has said that he had not seen the occurrence of the scuffle.

8. One Lilu Mahatha was examined as P.W.-6 and has

supported the prosecution version by stating therein that on

12.08.1998 at about 07:00 in the morning that was Wednesday

and while he was grazing oxen, Durga Charan Mahatha and

Bhagirath were engaged in pruning the field but even after

opposition made to that effect from Puran and Tara Pado and

the other accused persons including the appellants, Durga

Charan and Bhagirath continued to prune the field. He has

further stated that Manpuran has told that they will not desist of

as such they be killed. On this, Tara Pado gave farsa blow to

Durga Charan Mahatha and one Mahadeo gave tangi blow on

Bhagirath. All the accused persons have assaulted with lathi and

Durga Charan and Bhagirath became unconscious. He has

further stated that both of them i.e., Durga Charan Mahatha

and Bhagirath have been taken to their house and from tempo

have been taken to Hospital and from there they have been

referred to Bokaro Hospital but while going to the hospital

Durga Charan Mahatha had died. He has identified the accused

persons who are in the dock.

In cross-examination, this witness has stated that he had

told to the police that Durgan Charan was assaulted with farsa

by Tara Pado and Mahadeo has assaulted with tangi to

Bhagirath. He has stated that after hearing alarm he rushed at

the place of occurrence and saw there Durgan Charan and

Bhagirath was full with blood. He has further stated that when

the accused had fled away from the place of occurrence, the

other witnesses, namely, Sudhir, Ambuj, Sagar, Ashutosh and

Basudeo have come there. He has also stated that while going

to the hospital, the Chowkidar was along with him. He has

further stated that when they reached to Chandankiari hospital,

Durga Charan Mahatha has been declared dead. He has also

stated that a title suit was going on in between the accused and

the informant and his brother in which the accused had

succeeded.

9. One Ashutosh Mahatha was examined as P.W.-7 and has

corroborated the prosecution story.

10. Brikodar Mahatha was examined as P.W.-8 and he has also

supported the prosecution version. In cross-examination, he has

stated that at the place of occurrence his mother was also

present but subsequently he has said that when his mother was

informed then only she reached to the place of occurrence.

11. Dr. Ratneshwar Prasad Verma, who had conducted the

postmortem examination on the body of deceased, namely,

Durga Charan, was examined as P.W.-9 and found the following

injuries:

i. Abrasion 4"x1/4" -medical side of left leg. ii. Swelling 4"x3 ½" on back of right hand. iii. Echoymosis 5"x1/2" outer side of right arm. iv. (a) swelling 4"x 3 ½" with

(b) two penetrating wound of 'pea' size and ¼" deep in back of left hand v. Abrasion 2"x1/2" on right side of back over scapular surface.

vi. Abrasion 1 ½" x ½" on right side of back over scapular region.

vii. Lacerated wound 2 ½"x 1/6"x scalp deep overhead just lateral wound mid line. viii. lacerated wound 1"x1/6" x scalp deep by side of injury no.vii on the middle of head. Injury nos.7 and 8 were stitched. ix. lacerated wound 1"x1/6" x scalp deep right side of head over parital surface. x. Swelling 5"x 2 ½" on right temporal parital surface of head.

He has opined that all the injuries were found to be caused

by hard and blunt substance and except injury no. iv(b) which

was caused by hard and pointed object. Cause of death was

cardio respiratory failure due to massive hemorrhage and

extensive injury to brain and this postmortem report has been

marked Ext.2.

12. Sudhir Kumar Choudhary, I.O. has been examined as P.W.-

10 and he has stated about the institution of first information

report being Case No.73 of 1998 and conducting of the

investigation. He has further stated about the place of

occurrence.

In cross-examination he has stated that Lilu Mahatha,

P.W.-6 has not stated before him that Tara Pado has given farsa

blow on Durga. He has also stated that Lilu Mahatha has not

said that Mahadeo has given tangi blow to Bhagirath. He has

further stated that Lilu Mahatha has not said that both the

deceased and injured are pruning the field and he has also

stated that he has not taken the name of the accused persons

by disclosing therein that who was having which weapon and

inflicted injury. He has also not stated that the Brikodar was

sitting on Jhar (tree). He has also not stated that the accused

persons have fled away leaving the injured in injured condition.

He has also not said that Bhagirath after regaining senses has

given statement before the police.

In next paragraph of cross-examination he has further

stated that Dilip Kumar Mahatha, P.W.-13 has stated before him

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that on alarm he reached to the place of occurrence and he had

seen Durga Charan Mahatha and Bhagirath in injured condition

and he has also not said that he has seen the occurrence of

scuffle. He has further stated that Bhagirath Mahatha has stated

before him that on alarm from his village Sitaram Sagar,

Ramnath Rajwar, Ambuj, Sudhir, Dilip and Brikodar had come

and seen the occurrence. He has further stated that there is

nothing in the diary and Bhagirath was given treatment by a

private doctor.

13. Sita Ram Mahatha was examined as P.W.-11 and has

corroborated the prosecution story. He has stated that

Durgacharan and Bhagirath had been taken to hospital by auto

rickshaw and in course of treatment, the police inspector has

come to the hospital and identify Bhagirath Mahatha.

Durgacharan Mahatha had died while going through the

treatment in Bokaro General Hospital. Thereafter his body was

taken for conducting autopsy and Bhagirath was sent for private

treatment but he has also died after three months thereafter.

He has stated that after the treatment when the Bhagirath has

regain senses his statement was recorded. He has also stated

that who has given which blow he cannot say.

14. One Dr. Birendra Kumar was examined as P.W.-12 who

has prepared the injury report of Bhagirath and Durgacharan

Mahatha, wherein he has found the following injuries upon

Durgacharan Mahatha which are as follows:

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i. Lacerated wound 1"x1/6" with scalp deep over top of head right side by hard and blunt substance.

ii. Lacerated wound 2 ½" x 1/6"with scalp deep over top of the head right side.

iii. Lacerated wound 1"x1/6"x scalp deep over right parital side of head.

iv. Swelling 5"x3 ½" over right temporal parital region.

v. Swelling 4"x 3 ½" over back of right hand. vi. Echymosis 5"x ½" over right arm lateral aspect vii. Two penetrating wound of pea size ¼"deep each over left side of head posterial occipital region due to hard pointed object. viii. Swelling over left side of head posterial occipital region 4"x3 ½".

ix. Abrasion over right scapular region. x. Abrasion over right side of back scapular region.

xi. Abrasion 4"x1/4" on medial aspect of left thigh.

The injuries were caused by hard and blunt object.

He has also prepared the injury report of Bhagirath

Mahatha which is eight in number and are as follows :

i. Lacerated wound 3 ½" x ¼"x scalp deep over top of head.

ii. Lacerated wound 3"x1/4"x scalp deep over top of head right side.

iii. Swelling with abrasion over left side chest. iv. Swelling with abrasion over left index finger, middle finger, ring finger.

v. Swelling on left thigh.

vi. Swelling on left side of back. vii. Extensive swelling on left side of palm and viii. Body ache.

He has stated that the injuries sustained by Bhagirath

were caused by hard and blunt substance and the injuries were

simple in nature. Both the injuries report have been marked

Ext.8 and 8/A.

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15. Sudhir Mahatha was examined as P.W.-14 and he has

stated that he had not seen the occurrence and he saw only the

injured.

16. Sagar Mahatha was examined as P.W.-15 and he himself

claimed to be the eye witness of the occurrence. He has stated

that he witnesses the occurrence when he was coming to the

non-fertile land of Bhukhali Mahatha which is place of

occurrence but he had not stated it before the police which is

proved by the evidence of I.O., the P.W.-10. He has further not

stated before the I.O., the name of the accused persons who

were armed with lathi.

17. This Court after having discussed the testimony of the

witnesses has found from the testimony of P.W.-6 which has

been considered by the prosecution to be the eye-witness and

basis on his deposition submission has been made that the

impugned judgment suffers from illegality but we, on close

scrutiny of the testimony of P.W.-6, have found that he has

narrated the story while giving his deposition in course of trial

considering himself to be eye-witness by presenting a picture to

that effect. But when the aforesaid testimony has been

compared with the testimony of the Investigation Officer from

there we have gathered that what he has stated before the

police while giving statement under Section 161 Cr.P.C. he has

given totally contradictory version by improving his version and

projecting himself to be the eye-witness. It is evident from the

deposition of P.W.-10 (the Investigation Officer), wherein in

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categorical term, the Investigating Officer has said that Lilu

Mahatha, the P.W.-6, has not stated before him that Tara Pado

has assaulted Durga. Lilu Mahatha has also not stated before

the P.W.-10 that Mahadeo has given tangi blow upon Bhagirath.

P.W.-6 has also not state before the P.W.-10 that they were

pruning the field and objection being made has been witnessed

by him. The P.W.-6 has also not disclosed the name of the

accused persons to the Investigating Officer and P.W.-6 has also

not stated to the P.W.-10 that who was armed with which

weapon and who assaulted to Durgacharan Mahatha and

Bhagirath. The P.W.-6 has not stated before the P.W.-10, the

I.O. that the accused persons have fled away after giving injury

to Durgacharan and Bhagirath.

It is, thus, evident that in the examination-in-chief, the

P.W.-6 has supported the prosecution version but while giving

statement under Section 161 Cr.P.C. where he had not disclosed

before the police with regard to the occurrence and even not

disclosed the name of the assailants as has been disclosed by

him in the examination-in-chief and who assaulted with which

weapon to whom.

It also requires to refer herein at this stage that even the

version of the P.W.-6 has not been corroborated with the

medical evidence, since, the doctor, who has prepared the

injury report of Bhagirath and Durgacharan, has given the

opinion that the injuries were caused by hard and blunt

substance. On the other hand, in examination-in-chief, the

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P.W.-6 has stated that the assault was with farsa on

Durgacharan and by tangi on Bhagirath, therefore, the version

of P.W.-6 regarding the nature of injury has also not been find

corroboration from the medical report. He has also stated that

all the other accused had assaulted with lathi but as would

appear from the injury report of Bhagirath, all the injuries are

simple in nature.

It further requires to refer herein that Bhagirath being the

injured eye-witness and his fard beyan was also recorded by the

I.O. and statement under Section 161 Cr.P.C. was recorded by

the I.O. but during treatment after three months of the

occurrence, this witness died. If for the sake of argument, this

fard beyan given by injured-Bhagirath is treated to be dying

declaration, the same is also not corroborated with the

statement of the I.O., who has stated that he recorded the fard

beyan of Bhagirath but he nowhere stated that Bhagirath has

told to him which one of the assailants had assaulted to him and

Durgacharan by which weapon. He only stated to I.O. that

witnesses, namely, Sitaram Mahatha, Sudhir Mahatha, Sagar

Mahatha, Ram Nath Rajwar, Bachhu Mahatha, Dilip Kumar

Mahatha and Brikodar Mahatha came there later on. As such,

the fard beyan is also being not corroborated with the

Statement of the I.O. The same even if treated as dying

declaration after death of Bhagirath cannot be accepted as trust

worthy.

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18. At this juncture, it is pertinent to mention here that there

is no straight jacket formula on the basis of which the guilt of

the accused is said to be proved beyond reasonable doubt.

Moreover, there is no way to determine objectively, the

reasonability of the doubt that the court might have. So it

depends solely on the court to say whether he is convinced by

the arguments of the prosecution or that there still remains a

degree of reasonable doubt so as to impart the judgment in

favour of the defense.

This follows from the cardinal principle that the accused is

presumed to be innocent unless proved to be guilty by the

prosecution and the accused is entitled to the benefit of every

reasonable doubt. In criminal cases, the guilt should be proved

beyond any reasonable doubt that a reasonable man with

ordinary prudence can have. There should be no doubt whether

the accused is guilty or not. If there is slightest doubt, no

matter how small it is, the benefit will go the accused, in this

regard reference may be made to the judgment rendered by the

Hon'ble Apex Court in the case of Himachal Pradesh

Administration vs. Shri Om Prakash reported in (1972) 1

SCC 249, wherein at paragraph 7, it has been held which reads

as under :

"7. While it is not the function of this Court to determine who other than the person who has been charged with the murder had committed it, the line which the defence adopted was to establish that the witnesses referred to above had an interest in implicating the accused or at any rate to create uncertainty and doubt sufficient to give the

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benefit to the accused. It is not beyond the ken of experienced able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to be borne in mind is that the penumbra of uncertainty in the evidence before a court is generally due to the nature and quality of that evidence. It may be the witnesses as are lying or where they are honest and truthful, they are not certain. It is therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt -- the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy -- though unwittingly it may be -- or is afraid of the logical consequences, if that benefit was not given. Or as one great Judge said it is "not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism". It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether. It is for this reason the phrase has been criticised. Lord Goddard, C.J., in Rox v. Kritz, [1950 (1) KB 82 at 90] said that when in explaining to the juries what the prosecution has to establish a Judge begins to use the words "reasonable

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doubt" and to try to explain what is a reasonable doubt and what is not, he is much more likely to confuse the jury than if he tells them in plain language. "It is the duty of the prosecution to satisfy you of the prisoner's guilt". What in effect this approach amounts to is that the greatest possible care should be taken by the Court in convicting an accused who is presumed to be innocent till the contrary is clearly established which burden is always in the accusatory system, on the prosecution. The mere fact that there is only a remote possibility in favour of the accused is itself sufficient to establish the case beyond reasonable doubt. This then is the approach."

Likewise in the case of Rang Bahadur Singh vs. State

of U.P. reported in (2000) 3 SCC 454, the Hon'ble Apex Court

at paragraph 22 has held as under :

"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

19. This Court on the basis of aforesaid discussions and on

close scrutiny of the evidences and after scrutinizing the finding

recorded by the learned trial court has found that the learned

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trial court has given thoughtful consideration, particularly the

consideration of deposition of the P.W.-6 Lilu Mahatha, who

has been projected by the prosecution as an eye-witness and

taking into consideration the statement made by the P.W.-6

before the I.O., the P.W.-10 if disbelieved the version of P.W.-6

which according to our considered view cannot be said to be an

incorrect finding. The learned trial court has also not erred in

acquitting the appellants, reason being that the fard beyan has