Jharkhand High Court
Shiv Lochan Machhua @ Lutra vs The State Of Jharkhand on 4 July, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.483 of 2015
(Against the Judgment of conviction dated 4th June, 2015 and Order of
sentence dated 5th June, 2015, passed by the First Additional Sessions
Judge, Seraikela in Sessions Trial No.51 of 2011)
1. Shiv Lochan Machhua @ Lutra
2. Mangal Singh Munda .... Appellants
Versus
The State of Jharkhand ..... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellants : Mr. Jitendra Shankar Singh, Advocate
Mr. Rajesh Kumar, Advocate
For the State : Mr. Ravi Prakash, Spl. P.P.
.....
C.A.V. on 17.05.2023 Pronounced on 04.07.2023
Subhash Chand, J.:- Heard learned counsel for the appellants and learned
counsel for the State.
1. The instant criminal appeal is preferred on behalf of the
appellants against the impugned Judgment of conviction dated 4th
June, 2015 and Order of sentence dated 5th June, 2015 passed by
the First Additional Sessions Judge, Seraikela in Sessions Trial No.51
of 2011, whereby, the appellants have been convicted for the
offence under Sections 302 of the Indian Penal Code and sentenced
to undergo rigorous imprisonment for life along with fine of
Rs.5,000/- each and in default of payment of fine, the appellants
were directed to undergo rigorous imprisonment for six months.
2. The brief facts giving rise to this criminal appeal are that the
informant--Vishnu Gope lodged the written information with the
Cr. Appeal (DB) No.483 of 2015
police station concerned with these allegations that on 23rd
December, 2009 at 6 o' clock in the evening after the result of
election he was coming back to his house with the victory procession
from Seraikella by the bolero car bearing registration no. WB 2 G
7943 in which Chittranjan Kumar @ Chottu, Dhananjay Kumar @
Dhanu and Kalipado Kumhar, Ram Prasad Mahato, Viswanath Lohar
and Khelu Kumhar were boarding and when they reached near
Lapang More, one bolero bearing registration no.JH 05 W 2825 and
one white colour scorpio, both car overtook them and their vehicle
was obstructed by them. At the same time, Shakti Mahato, Mangal
Singh Munda, Dharni Singh, Prayag Mahato and 10-12 other aide
armed with weapons such as farsa, axe, danda, rifle, pistol and
hockey stick began to assault. In the meantime, they also opened fire
while assaulting. The informant with fear hid himself in the drain and
two persons got the narrow escape. Mangal Singh Munda assaulted
Chittranjan Kumhar @ Chottu with farsa. Shakti Mahto also opened
fire on him. Kalipado Kumhar, Ram Prasad Mahato and Dhananjay
Kumhar all were assaulted with lathi, danda, hockey and also shot
with bullet. Thereafter they began to load the dead bodies one by
one in the car and left the dead body of Chitranjan Kumhar @ Chottu
at the place of occurrence. Being in hurry he reached to the village
and informed in regard to the occurrence to the co-villagers and the
co-villagers took Chittranjan Kumhar to T.M.H., where he was
declared dead. This occurrence was politically motivated.
Cr. Appeal (DB) No.483 of 2015
3. On this written information, the Case Crime No. 11 of 2009 was
registered with the police station Tiruldih under Sections
147/148/149/302/201/120-B of the Indian Penal Code against Shakti
Mahato, Mangal Singh Munda, Dharni Singh, Prayag Mahato and 10-
12 unknown persons who came by the Bolero bearing registration
no.JH 05 W 2825 and also a white Scorpio. The Investigating Officer
concluded the investigation and filed charge-sheet against Pramod
Mahato, Tension Kumar Sinha, Ram Singh Rajak, Anil Gope, Mangal
Singh Munda and Shivlochan Machhua @ Lutra for the offence under
Sections 147, 148, 149, 302, 201, 120-B of the I.P.C and 27 of the
Arms Act. The concerned Magistrate took cognizance on the charge-
sheet and committed the case for trial to the court of Sessions Judge,
Seraikella.
4. The court of Sessions Judge, Seraikella transferred the case to
the court of Additional Sessions Judge-I, Seraikella. The trial court
framed charge against all the accused under Sections 147, 148, 149,
302, 201, 120-B of the I.P.C and 27 of the Arms Act. The charge was
read over and explained to all the accused, who denied the charge
and claimed for trial.
5. On behalf of the prosecution to prove the charge against the
accused persons in oral evidence examined P.W.1-Jai Ram Kumhar,
P.W.2-Vishnu Gope, P.W.3-Khela Ram Kumhar, P.W.4-Vishwanath
Karmakar, P.W.5-Mahanand Kumhar, P.W.6-Raghubar Kumhar,
P.W.7-Ram Das Singh Munda, P.W.8- Dhananjay Gorai, P.W.9-
Cr. Appeal (DB) No.483 of 2015
Purnachandra Kumhar, P.W.-10 Dr. Amal Nath, P.W.-11 Dr. Lallan
Choudhary and P.W.-12 Rameshwar Prasad.
6. On behalf of the prosecution in documentary evidence adduced
Ext.1 signature of informant on written report, Ext.2 signature of
Raghubar Das on seizure list, Ext.3 Postmortem report of Kalipado
Kumhar, Ext.4 postmortem report of Dhananjay Kumhar, Ext.5
Postmortem report of Ram Prasad Mahato, Ext.6 Postmortem report
of Chittranjan Kumhar, Ext.7 forwarding of written report, Ext.8
Endorsement on written report, Ext.9 seizure list, Ext.10 seizure list,
Ext.11 seizure list, Ext.12 seizure list, Ext.13 Endorsement on written
report, Ext.14 formal F.I.R., Ext.15 confessional statement of
Shivlochan Machhua, Ext.16 seizure list of Xylo vehicle, Ext.17
confessional statement of Pramod Mahato, Ext.18 S.F.S.L. report and
Ext.19 sticked paper on sealed packet.
7. The statement of the accused persons under Section 313 of the
Cr.P.C. were also recorded, wherein they denied the incriminating
circumstances against them and no defence evidence was adduced
on behalf of the accused persons.
8. The trial court after hearing the learned counsel for the parties
passed the judgment of conviction dated 4th June, 2015, whereby
Tension Kumar Sinha, Ram Singh Rajak, Pramod Mahato were
acquitted from the charge levelled against them while Shiv Lochan
Machhua @ Lutra and Mangal Singh Munda both were convicted for
the charge under Sections 147, 148, 149, 201, 120-B and 302 of the
I.P.C. and Section 27 of the Arms Act and sentenced accordingly.
Cr. Appeal (DB) No.483 of 2015
9. The aforesaid convicts being aggrieved with the judgment of
conviction dated 4th June, 2015 and order of sentence dated 5th June,
2015 preferred the present criminal appeal on the grounds that the
impugned judgment of conviction and sentence is against the
elementary principles of justice. The learned trial court had
committed grave error in scrutinizing the evidence of the prosecution
witnesses in proper perspective. The prosecution case is not proved
beyond all shadow of doubt. It is further submitted that the
prosecution case is neither based on oral evidence nor on
circumstantial evidence to establish the appellants' culpability in
commission of the alleged offence. The solitary statement of P.W.-4
Vishwanath Karmakar is the basis of conviction of the appellants
whose testimony being tainted cannot be relied upon. Accordingly,
prayed to quash the impugned judgment of conviction and order of
sentence.
10. We have heard learned counsel for the appellants and learned
Special P.P. for the State of Jharkhand and perused the materials
available on record.
11. In order to decide the legality and propriety of the impugned
judgment of conviction and order of sentence passed by the learned
trial court, we would like to re-appreciate the evidence on record,
which are reproduced herein below :
12. P.W.-1 Jay Ram Kumhar in his examination-in-chief says
that the occurrence was of 1 ½ years ago in the month of December
and the time was of evening. He was at his house and he heard that
Cr. Appeal (DB) No.483 of 2015
maar peet was done. Amid the way, when Chitranjan Kumhar,
Kalipado Kumhar, Ram Prasad Mahato and Dhananjay Kumhar were
coming to their house after election counting. The occurrence took
place at the Lapang more. He along with Puran Kumhar, Koyalu
Gope, Chandan Kumhar and others reached at the place of
occurrence, found Chitranjan in injured condition and in pool of
blood. They took him to Tata hospital, where he was declared dead.
In this occurrence Dhananjay Kumhar, Kalipado Kumhar, Ram Prasad
Mahato also died and their dead bodies were lying near Bengal
border.
12.1 P.W.-2 Vihsnu Gope in his examination-in-chief says that the
occurrence was of two years ago and it was 7 o' clock of evening. He
along with his aide Kalipado Kumhar, Khelaram, Dhananjay Kumhar,
Ram Prasad Mahato, Vishwanath Lohar were coming by their bolero
car after the election counting from Seraikela and when they reached
near Baralapang more, two vehicles overtook them and they
obstructed their vehicle and began to assault. Chhotu @ Chitranjan
was first assaulted and he fell in the drain and rushed towards the
jungle. All the accused persons had covered their face with cloth and
he could not identify them. This witness identified his signature on
the written information and was declared hostile by the prosecution.
The witness denied the statement under Section 161 Cr.P.C. given to
the I.O. during investigation and in cross-examination on behalf of
the accused, this witness stated that it was dark night. He did not
Cr. Appeal (DB) No.483 of 2015
know the contents of the written information which was not read
over to him.
12.2 P.W.-3 Khela Ram Kumhar in his examination-in-chief says
that he was driver of commander vehicle which belong to Kalipado.
The occurrence took place two and half years ago. It was winter
season and time was 7 o' clock of night. They were coming from
Seraikela along with Kalipado, Chitranjan Kumhar, Vishnu Gope,
Vishwanath Lohar, Dhanu Kumhar, Ram Prasad Mahato and two
others whose names he was not recollecting. In the election Malkhan
Singh was declared winner and they belong to the party of Malkhan
Singh. It is further stated that when they reached to Lapang More,
one vehicle overtook them and two to three persons get down from
that vehicle who had masked their face and began to assault. They
rescued themselves by jumping into the drain and fled away towards
the jungle. What happened thereafter, he was not aware. In the next
morning, he came to know that four persons were murdered in that
occurrence, who were Kalipado Kumhar, Chitranjan Kumhar, Dhanu
Kumhar and Ram Prasad Mahato. This witness was declared hostile
by the prosecution and in cross-examination by prosecution he
denied the statement given under Section 161 Cr.P.C.
12.3 P.W.-4 Vishwanath Karmakar @ Vishwanath Lohar in his
examination-in-chief says that the occurrence is of two years ago and
it was winter season and time was 6-7 o' clock of evening. They were
coming from Seraikela by the vehicle in which Kalipado Kumhar,
Chitranjan Kumhar, Dhanu Kumhar, Vishnu Gope, total seven
Cr. Appeal (DB) No.483 of 2015
persons were boarding and when they reached near the Lapang
more, two vehicles came from behind and overtook them. They
stopped their vehicle in front of their vehicle and asked to get down
from the vehicle. They were armed with Farsa, axe, pistol, rod and
hockey stick and began to assault indiscriminately. Chitranjan
Kumhar died at the spot. Those who assaulted, among them he
identified Mangal Singh Munda and Lutra. Upon hearing the bullet
sound he hid himself in a bush and ultimately fled away towards the
jungle. He had seen Ram Prasad Mahato, Kalipado Kumhar,
Chitranjan Kumhar, Dhanu Kumhar dying. He identified the accused
Mangal Singh Munda and Lutra Munda, who were present in the
court but he could not identify another accused who was also present
in the court.
This witness in cross-examination says that both the vehicles
had overtook them. The driver of their vehicle was Khelu Kumhar and
by that time he hidden himself in the boot space of the car and when
they began to load the dead bodies, he fled away towards the jungle.
He does not know the registration number of the vehicle which
overtook them.
12.4 P.W.-5 Mahanand Kumhar in his examination-in-chief says
that the occurrence was of 23rd December, 2009 and time was 6 o'
clock of evening and he was at his house. Vishnu Gope told him that
at the Lapangmore, the maar-peet was done. He reached there by
the motorcycle and found Chitranjan lying in pool of blood. He was
taken to TMH Hospital, where he was declared dead. He came to
Cr. Appeal (DB) No.483 of 2015
know that Kalipado Kumhar, Ram Prasad Mahato and Dhananjay
Kumhar were also murdered whose dead bodies were lying at the
Bengal border.
In cross-examination, this witness stated that Raghuvar Ji told
him that dead bodies of three persons were lying at the Bengal more.
12.5 P.W.-6 Raghubar Kumhar in his examination-in-chief stated
that occurrence was of three years ago. At that time he was at his
house and the time was 7:30 p.m. He came to know that at
Lapangmore, maar-peet was done and he reached to the place of
occurrence. The police brought the blood stained soil from the place
of occurrence and seizure memo was prepared on which he put his
signature which was marked Ext.2. This witness turned hostile and
he denied the statement given to the I.O. under Section 161 Cr.P.C.
12.6. P.W.-7 Ram Das Singh Munda in his examination-in-chief
says that the occurrence was of 3 years ago and it was evening time.
Upon hearing hulla, he reached at the place of occurrence and found
Chitranjan Kumhar lying in pool of blood. He was taken to the
hospital but amid the way he died. This witness was declared hostile
by the prosecution and he denied the statement given to the I.O.
under Section 161 Cr.P.C.
12.7 P.W.-8 Dhananjay Gorai in his examination-in-chief says that
occurrence was of three years ago and time was 7 o' clock of
evening. Upon hearing the hulla, he reached at the place of
occurrence and found Chitranjan Kumhar lying in pool of blood and
he died at the spot. This witness was also declared hostile by the
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Cr. Appeal (DB) No.483 of 2015
prosecution and in cross-examination by the prosecution he denied
the statement given under Section 161 Cr.P.C. to the I.O.
12.8 P.W.-9 Purna Chandra Kumhar in his examination-in-chief
says that the occurrence was of 23rd December, 2009 at 07:30 of
evening. He was at his house and reached at the place of occurrence
upon hearing the noise, where Chitranjan Kumhar, Dhananjay
Kumhar, Ram Prasad Mahato and Kalipado Mahato were assaulted.
He reached at the place of occurrence by his motorcycle and found
dead body of Chitranjan Kumhar, who was taken to the hospital,
where he was declared dead. The dead bodies of Kalipado Kumhar,
Dhananjay Kumhar and Ram Prasad were found near the Bengal
border. This witness in his cross-examination stated that the place of
occurrence was at some distance from the village.
12.9 P.W.-10 Dr. Amal Nath in his examination-in-chief says that
on 24th December, 2009 he conducted the postmortem of dead
body of Kalipado Kumhar and found the following ante mortem
injuries :
i. Incised wound, longitudinal, sharp margin, 2 ½" x ½"
bone deep right parital region.
ii. Bullet injury - Entry - Right upper occipital region. No
exist wound, bullet found at left frontal region under
skeen and scaulbone punctured, other teatukes of bullet
injury are noted in p.m. report.
iii. Extansive intra cereleral haemorrhage.
Injury no.i caused by heavy sharp cutting
substance and injury no.ii was caused by firearm
substance.
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Cr. Appeal (DB) No.483 of 2015
In his opinion, the cause of death was shock and
haemorrhage due to the injuries mentioned in the
postmortem report i.e., ante mortem and homicidal in
nature. The postmortem report of deceased--Kalipado
Kumhar is Ext.3 which is in his handwriting and
signature.
On the same day, he also conducted the
postmortem of Dhananjay Kumhar and on
examination found bullet injury entry below right eye, no
exist wound, bullet found at base of brain other features
are noted in postmortem report. Extansive intra cerebral
haemorrhage was present.
Cause of death was due to shock and haemorrhage the
postmortem report of the deceased Dhanajay Kumar
was marked Ext.4.
On the same day he also conducted the
postmortem over the dead body of Ram Prasad
Mahato and found following injuries :
Bullet injury entry - ½" above left ear, no exit bullet
found at right parietal brain matter, longitudinal fracture
about 4" long over middle of skull. Extansive intra
cerebral haemorrhage was present. The injury was
caused by firearm substance. In his opinion the casue
was death was due to shock and haemorrhage due to
injury mentioned in the postmortem report ante mortem
and homicidal in nature. The postmortem report of dead
body of Ram Prasad Mahato was marked Ext.5.
In his cross-examination, this witness says that reason of my
finding regarding homicidal are not given in the postmortem report.
12.10 P.W. 11 Dr. Lallan Choudhary in his examination-in-chief
says that on 24th December, 2009 he was posted as Assistant
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Cr. Appeal (DB) No.483 of 2015
Professor in the department of Forensic Medicine of M.G.M. Hospital,
Jamshedpur and on that day at 12:30 p.m. he conducted the
postmortem examination on the dead body of Chitranjan
Kumhar and found following ante mortem injuries :
(a) Entry wounds -
i. 1 cm x 0.25 cm over left side of upper chest in front,
5.5 cm left lateral to left nipple and 16 cm below right
shoulder tip. Margin of wound black and irregular and
inverted. Tattooing 3 cm x 5 cm around the wound and
5 cm x 6 cm in front of left ear (face) present.
ii. 1 cm x 0.75 cm over left side mandibular angle lower
part, 11 cm below outer aspect of left eye and 5 cm
middial and downward to left mandibular angle. Marigin
is blackened irregular and inverted.
(B.) Abrasions -
i. 1 cm x 1 cm over left forehead.
ii. 5 cm x 4 cm over left chick.
iii. 1.5 cm x 1 cm over chin.
(C.) Incised wound -
i. 5 cm x 1 cm x bonedeep over right forehead.
ii. 7.5 cm x 0.5 cm x muscle deep, 6 cm x 0.5 cm x
muscle deep and 8 cm x 0.5 cm x muscle deep over
middle scalp from left to right.
iii. 8 cm x 0.5 cm x bone deep over right occipital scalp.
iv. 2 cm x 2 cm x bone deep over upper part of left hand
ring fingure, bone cut.
In his opinion the cause of death was shock and
haemorrhage. Injury no.a and chest and brain are
caused by the firearm. Abrasion was caused by hard and
blunt object. Incised wound was caused by sharp edged
heavy weapon. The time of death was 12 to 18 hours
from the time of conducting postmortem. The
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Cr. Appeal (DB) No.483 of 2015
postmortem report of Chitranjan Kumhar was
marked Ext.6.
In cross-examination, this witness says that injuries mentioned
in Group A were sufficient to cause death.
12.11 P.W.-12 Rameshwar Prasad (the I.O.) in his examination-
in-chief says that the occurrence was of 24th December, 2009. He
was station in-charge of police station Tiruldih. On that day he
forwarded the written report of Vishnu Gope to Tiruldih police station
and he identified the same which was marked Ext.7. The formal
F.I.R. was prepared by Sri R.N. Mahato, A.S.I. which is endorsed in
his signature and marked Ext.8. He recorded the statements of
witness--Khelu Kumhar and Vishwanath Karmakar, who supported
the prosecution case. He also inspected the place of occurrence, first
place was CC road of village Tiruldih at Lapangmore where the blood
was found and 7.6 mm bullet, two empty cartridge and one 9 mm
live cartridge were also found from the place of occurrence. The dead
body of Chitranjan was there and the same was sent to Jamshedpur
Hospital, where he was declared dead. The seizure memo of two
empty cartridge of 7.6 mm and one live cartridge of 9 mm was
prepared which was marked Ext.9. From the place of occurrence he
also took the blood stained soil and seizure memo of the same was
prepared which was marked Ext.10. The another place of occurrence
was West Bengal region i.e., P.S. Bagmundi one and half kilometer
from village Rangamati. The blood stain was also found there. In the
same occurrence, the dead body of Kalipado Kumhar, Dhananjay
Kumar and Ram Prasad were recovered. From that place the inquest
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Cr. Appeal (DB) No.483 of 2015
report of those dead bodies were prepared at the place of occurrence
and same were sent for postmortem examination. At the distance of
six to seven feet from the place of occurrence, one Bolero car of
Kalipado Kumhar bearing registration no. WB 2 G 7943 was found
unwarranted. The seizure memo of the same was prepared in
presence of two independent witnesses which was marked Ext.11.
The blood stained soil was also taken from the place of occurrence in
presence of Raghubar Kumar and Jamil Ansari which was marked
Ext.12. On the written information of Vishnu Gope, he identified the
signature of Raj Narayan Mahato which was marked Ext.13 and
formal F.I.R. was marked Ext.14. Thereafter, he recorded the
statements of Raghubar Kumar, Puranchand Kumhar, Jairam
Kumhar, Mahanand Kumhar, Ramdas Singh Munda, Dhananjay Gorai,
who supported the prosecution story. On 31st December, 2009, he
came to know from the spy in regard to complicity of Lutra and he
was nabbed because he was connected with Mangalsingh Munda.
On being arrested, this Lutra confessed his guilt and stated that
he was the active member of BHAJPA and was also Pradhan of
village Sisi and due to his political contacts he used to take the
contracts of construction in order to earn the livelihood of his family.
He further confessed that in Vidhan Sabha election of the year 2009,
he along with Anil Gope, Tension Kumar Sinha, Pramod Mahato,
Mangal Singh, Ram Singh Rajak, Bhagwat Mahato, Paritosh Mahato,
Sadhu Mahato made effort to get elected Sadhu Charan Mahato in
the election. In order to canvass for the election, they use white
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Cr. Appeal (DB) No.483 of 2015
colour Sumo car of Tension Kumar Sinha bearing registration no.JH
05 X 9733, silver Bolero Car bearing registration no. JH 01 AB 8436
and purple colour xylo car bearing registration no. JH 01 AB 4866
which was of Kallu Khan's brother. After counting, they came by
Sumo car in which Paritosh Mahato, Bhagwat Mahato, Anil Gope,
Ram Singh Rajak, Kalindi, Sadhu Mahato, cousin brother of Sadhu
Mahato and driver Ravindra Tantubai were boarding. There was
some defect in the same and at the same time, Anil Gope received
call on the mobile phone that Sadhu Charan Mahato had lost the
election and all became disappointed. On 22nd December, 2009 at
noon time, before one day of counting, by the bolero car of Tension
Kumar Sinha, Tension Kumar Sinha, Mangal Singh Munda and
Pramod Mahato of Bagmundi (West Bengal) were coming from
Seraikella and in the purple Xylo car Mangal Singh Munda and
Pramod Mahato were boarded. Mangal Singh Munda also asked Anil
Gope and Ramsingh Rajak to be seated in the Xylo car. The
confessional statement of Machhua @ Lutra was recorded by him
which was marked Ext.15 and on his confessional statement and
pointing out, the Xylo car bearing registration no. JH 01 AB 4866 was
recovered. The seizure memo of the same was prepared which was
marked Ext.16. The seized Xylo car was also sent to SFSL for
examination and photograph of the blood stain was taken from that
car. Subsequently the blood was also taken from the place of
occurrence and also sent to SFSL. He also arrested Pramod Mahato
and recorded his confessional statement. A sealed envelope
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Cr. Appeal (DB) No.483 of 2015
containing papers were also sent to SFSL along with Xylo car. He
produced the plastic bag containing therein 17 sealed envelope which
were marked Exts. A to F and these envelopes were marked Ext. G to
H. All these exhibits were marked material Ext.1. Thereafter, he filed
the charge-sheet against Mangal Singh Munda, Tension Kumar Sinha,
Anil Gope, Ram Singh Rajak showing him absconder, Shiv Lochan
Machhua and Pramod Mahato before the concerned Magistrate.
In cross-examination, this witness says that on the confessional
statement of Shiv Lochan Machhua, Xylo car was recovered. The
Bolero car could not be recovered despite diligent effort made by
him. He also recorded the statements of Khelu Kumhar and
Vishwanath Karmakar. Vishwanath Karmakar had not stated before
him that when they reached near the Lapang more, two vehicles
overtook them and he did not say that headlight was also on. He also
did not say that he had hidden himself in the boot space of the car
when Mangal Singh Munda began to assault.
13. The prosecution case is based on direct evidence. As per
prosecution case, P.W.-3 Khela Ram Kumhar, P.W.-4 Vishwanath
Karmakar @ Vishwanath Lohar, P.W.-2 Vishnu Gope are the eye-
witnesses.
P.W.-2 Vishnu Gope is the informant and he has turned
hostile during examination before the trial court. He has not
proved the contents of the written information on the basis
of which the formal F.I.R. was drawn. He has stated that the
F.I.R. was not read over to him. He is not aware what was written in
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Cr. Appeal (DB) No.483 of 2015
the F.I.R. This witness despite having been declared hostile
by the prosecution has admitted prosecution case to this
extent that on the date and time of occurrence he along with
his aide, namely, Kalipado Kumhar, Khela Ram, Dhananjay
Kumhar, Ram Prasad Mahato and Vishwanath Lohar were
coming by the Bolero car after election counting and when
they reached near the Bada Lapang More, the two vehicles
obstructed their Bolero car and began to assault to the
persons who were boarding in the Bolero car. Firstly Chotu @
Chitranjan was assaulted thereafter he hid himself in a drain and
ultimately fled away towards the jungle. All the accused persons
had covered their face with the cloth, so he could not
recognize any of the assailants. As per testimony of this witness,
the occurrence is admitted but he could not identified any of the
assailant who have masked their face.
P.W.-3 Khela Ram Kumhar is also the eye-witness of the
occurrence and he has also turned hostile. In his statement he
stated that at the time and place of occurrence he along with his
aide, namely, Kalipado, Chitranjan Kumhar, Vishnu Gope, Vishwanath
Lohar, Dhanu Kumhar, Ram Prasad Mahato and two other persons
whose names he was not recollecting, were coming from Seraikella
by the car after election counting in which Malkhan Singh of their
party had been declared winner. When they reached at the
Lapangmore, the assailants who were in the car overtook them and
asked all of them to get down from the car by which they were
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Cr. Appeal (DB) No.483 of 2015
boarding. He hid himself in a pit and thereafter fled away towards
the jungle. This witness expressed his un-awareness in regard
to the occurrence how and by whom the murder was
committed. This witness also stated that on the next
morning he came to know that in that occurrence Kalipado
Kumhar, Chitranjan Kumhar, Dhanu Kumhar and Ram Prasad
Mahato were murdered.
This witness despite having been declared hostile by the
prosecution has supported the prosecution case in regard to
the time, place and murder of four persons but he could not
describe by whom and in what manner the murder was
committed.
P.W.-4 Vishwanath Karmakar @ Vishwanath Lohar is the
eye-witness of the occurrence. This witness in his examination-in-
chief stated that on the date and time of occurrence Kalipado
Kumhar, Chitranjan Kumhar, Dhanu Kumhar, Khelu Kumhar, Vishnu
Gope, total seven persons were boarding with him in the bolero car
of Kalipado which was being driven by Khelu Kumhar. As they
reached to Lapangmore, two vehicles came from behind and they
overtook their car and ultimately obstructed their Bolero car. All the
accused persons were armed with hockey, rod and pistol and began
to assault indiscriminately having asked all of us to get down from
the car. Firstly, Chitranjan was assaulted. Lutra Machhua had
exhorted to all the assailants to commit murder. Mangal Singh and
Lutra both were identified by him. He, however, managed to
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escape from there. The accused persons began to load the dead
bodies of the deceased in the car. He further stated that when the
bullets were shot he fled away towards the jungle. He had
seen Ram Prasad Mahato, Kalipado Kumhar, Chitranjan
Kumhar, Dhanu Kumar dying on account of sustaining
injuries. This witness in his cross-examination stated that the driver
of their Bolero car was Kalipado Kumhar and two vehicles came and
overtook their car and also obstructed them. He hid himself in the
boot space of the car and when the dead bodies of the
deceased were being loaded by them, he managed to flee
away from the boot space of the car and hid himself in the
bush of the jungle. The police had interrogated him and he had
told them, when they reached at the Lapang more, their car was
overtook by the two vehicles. All the assailants were armed with
lathi, sword, hockey and pistol. The P.W.-4 is the only eye-
witness of the occurrence, who stated in regard to manner of
the occurrence at the alleged time and place of occurrence.
He stated that he had identified Mangal Singh and Lutra @
Machhua but he could not identify all other accused persons.
There is contradiction in the testimony of this witness as in his
examination-in-chief he says that he hid himself in the Nali and
thereafter fled away towards the jungle but during cross-examination
he says that he hid himself in the boot space of the Bolero car by
which they were coming and when the dead bodies were being
loaded by the accused persons in their car he managed to flee away
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from there and hid himself in the jungle. The testimony of this
witness is to be evaluated in the light of testimony of the I.O.
who was examined as P.W.-12.
P.W.-12 Rameshwar Prasad in his examination-in-chief
stated that on 24th December, 2009 he was Station-in-Charge of
Tiruldih police station. On the written information of Vishnu Gope,
the F.I.R. was drawn by R.N. Mahato, A.S.I. and he also recorded the
statement of the witnesses during investigation. He also reached at
the place of occurrence and inspected the place of occurrence which
was at Lapang more. He obtained the blood stained soil from that
place and also got two empty cartridges of 7.6 mm and one live
cartridge of 9 mm. The body of Chitranjan which was found at the
Lapangmore was taken by his family members to the hospital at
Jamshedpur where he was declared dead. He prepared the recovery
memo of the empty cartridge and live cartridge which was marked
Ext.9. The recovery memo of the blood stained soil was prepared
which was marked Ext.10. Another place of occurrence was in the
region of West Bengal i.e., Bagmundi police station village
Rangamati. From there he found the dead bodies of three persons,
namely, Kalipado Kumhar, Dhanu Kumhar and Ram Prasad. Inquest
report of them was prepared there and he also prepared the recovery
memo of the blood stained soil from there in presence of two
independent witnesses, namely, Raghubar and Jamil Ansari which
was marked Ext.12. This witness in cross-examination stated
that P.W.-4 did not say to him that the headlight of their car
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was on and also did not say to him that he had hid himself in
the boot space of the car and Mangal Singh Munda began to
assault.
In view of the testimony of the I.O., the statement
given by the P.W.-4 Vishwanath Kumhar becomes tainted as
he has improved his statement given to the I.O. under
Section 161 Cr.P.C. Therefore, the testimony of this witness
being tainted cannot be relied upon.
14. The Hon'ble Apex Court in the case of Mehraj Singh & Anr.
vs. State of U.P. reported in 1995 JIC 757 held that conduct of an
eye-witness found to be unnatural. The blind murder; where the use
of different weapons were indicated in the medical evidence and
ocular evidence contradictory. The eye-witness deeply interested in
prosecution case, conviction not sustainable.
15. The Hon'ble Apex Court in the case Mohan Lal vs. State of
Rajasthan reported in 2001 (1) Allahabad Criminal Reporter
383 SC held that the evidence of witness suffering from several
omission and contradiction from earlier statement under Section 161
Cr.P.C. The evidence being tainted, no reliance can be placed.
16. P.W.-12, the I.O. in his statement also stated that on the tip
off received from the spy he arrested Lutra and he confessed his guilt
and stated that when the election had been over on the day of
counting by the Sumo Car bearing registration no. JH 05 X 9733, he
along with Paritosh Mahato, Bhagwat Mahato, Anil Gope, Ram Singh
Rajak, Kalindi, Sadhu Mahato, cousin brother of Sadhu Mahato and
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driver Ravindra Tantubai all went from Tiruldih to Seraikella counting
centre. At the place of occurrence i.e., vote counting centre at 7 o'
clock of morning on 23rd December, 2009, amid the way their vehicle
got some defect, so they could not reach to the counting place and
Anil Gope received information on the mobile phone that their
candidate Sadhu Charan Mahato lost the election, then all became
frustrated. On the date of occurrence in the evening, Anil Gope and
Ram Singh Rajak had asked him to accompany them. He went with
them to Daram Chowk and there Tension Kumar Sinha came by his
Bolero along with three unknown persons of Bagmundi and in purple
colour xylo car Mangal Singh Munda and Pramod Mahato were
boarding. Mangal Singh Munda asked Anil Gope and Ram Singh
Rajak to board in their Xylo car. On the confessional statement of
Shiv Lochan Machhua @ Lutra, the Xylo car was recovered in which
blood was also found and same was sent to SFSL. In a box certain
papers were also kept in envelope which were also blood stained
sent to SFSL. This witness P.W.-12 Rameshwar Prasad on the date of
his examination before the learned trial court produced the box
containing therein seven envelopes which were material Ext.1. This
witness also stated that Shiv Lochan Machhua @ Lutra in his
confession stated that in the election, the Bolero car bearing
registration no. JH 01 AB 8436 and Xylo car bearing registration no.
JH 01 AB 4866 were told to be involved but the Sumo car bearing
registration no. JH 05 9 X 9733 was also told to be involved in the
election canvassing and he recovered the Xylo car on the
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confessional statement and pointing out of the accused - Lutra but
no Bolero car was recovered and owner of the same could not be
traced.
As per F.I.R. version, on which the prosecution case is
based, the accused/assailants had come from behind, who
overtook the car of the informant and his aide. Out of these
two cars, one was Bolero and another was Scorpio; but to
the contrary of the prosecution case on confessional
statement and pointing out of accused Lutra, the Xylo car is
alleged to be recovered. The I.O. specifically has stated that
he could not trace out the Bolero car or its owner of which
registration number is given in the F.I.R. itself. So far as the
another car of the assailant is concerned, the same is alleged
in the F.I.R. to be simple Scorpio. As such, this Xylo car
which is alleged to be blood stained is contradictory to the
F.I.R. version. Moreover, the I.O. could not produce it during
examination before the trial court this Xylo car also which
was alleged to be blood stained.
As per S.F.S.L. report, the twelve paper envelopes which the
I.O. also produced before the trial court and the wound blood is
alleged to be on those all papers but all these papers and the blood
stained Xylo car is not connected with the commission of crime of
any of the prosecution witnesses. The I.O. has connected this
Xylo car with the commission of the crime but the same was
not produced before the court during examination and the
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same was never alleged to be used in commission of the
crime, as per prosecution story in F.I.R. It is alleged that in
the occurrence the Bolero and simple Scorpio car was used,
therefore, the recovery under Section 27 of the Evidence Act
cannot be said to be admissible.
17. The Hon'ble Apex Court in the case of Mustkeem alias
Sirajudeen v. State of Rajasthan reported in AIR 2011
Supreme Court 2769 at paragraph 27 had held as under :
"27.With regard to Section 27 of the Act, what is important
is discovery of the material object at the disclosure of the
accused but such disclosure alone would not automatically
lead to the conclusion that the offence was also committed
by the accused.In fact, thereafter, burden lies on the
prosecution to establish a close link between discovery of
the material objects and its use in the commission of the
offence. What is admissible under Section 27 of the Act is
the information leading to discovery and not any opinion
formed on it by the prosecution."
18. In the case in hand, in view of legal prepositions as settled by
the Hon'ble Apex Court, the alleged recovery of the Xylo car is
not proved and the same cannot be admissible in evidence
on confessional statement and pointing out of the accused
Lutra which is not proved to have been used in commission
of the crime because as per prosecution case, the Bolero car
and one simple Scorpio car were used by the assailants at
the time of occurrence, as per F.I.R. version, then how the
blood stains were in the Xylo car as the same is not
connected with any cogent evidence. Further the confession
of the accused Lutra is not corroborated with the evidence of
any of the prosecution witnesses, who were examined
during trial.
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19. From the testimony of all the prosecution witnesses, the
commission of the murder of the four persons on the alleged date
and time and place is proved and the assailants had assaulted to the
deceased persons with farsa, axe, hockey and pistol. The ante
mortem injuries of all the four deceased is corroborated with the
medical evidence. P.W.-10 Dr. Amal Nath has proved the postmortem
reports of deceased Kalipado as Ext.3, Dhananjay Kumar as Ext.4
and autopsy report of Ram Prasad Mahato as Ext.5. The postmortem
report of deceased Chitranjan is proved by P.W.-11 Dr. Lallan
Choudhary. The ante mortem injuries stated by the P.W.-10 Dr. Amal
Nath and P.W.-11 Lallan Choudhary also corroborated the ocular
evidence, so far as the nature of injuries which the deceased had
sustained but by whom these injuries were inflicted and the
murder was committed is not proved beyond all shadow of
doubt.
20. As per prosecution case, there was a political rivalry between
the prosecution side and the accused side and from the prosecution
evidence adduced on record, the charge framed against the
convicts/appellants is not proved beyond all shadow of doubt. The
only witness on which the conviction of the appellants is
based is P.W.-4 Vishwanath Karmakar and his presence at
the place of occurrence is doubted keeping in view the
deposition given by this witness before the trial court which
is altogether in contradiction of his statement given to the
I.O., as the I.O. (P.W.-12) had stated that no such statement
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was given by Vishwanath Karmakar to him with regard to
that. At the time of occurrence, the two vehicles had
overtook their car and he had hidden himself in the boot
space of car and he did not name the accused persons, who
are convicts/appellants herein during his interrogation under
Section 161 Cr.P.C.
21. The Hon'ble Apex Court in the case of Eknath Ganpat Aher
vs. State of Maharashtra reported in (2010) 3 SCC (Cri) 172 at
paragraph 26 has held as under :
"26. It is an accepted proposition that in the case of group
rivalries and enmities, there is a general tendency to rope in
as many persons as possible as having participated in the
assault. In such situations, the courts are called upon to be
very cautious and sift the evidence with care. Where after a
close scrutiny of the evidence, a reasonable doubt arises in
the mind of the court with regard to the participation of any
of those who have been roped in, the court would be
obliged to give the benefit of doubt to them."
22. After critical appraisal of the prosecution evidence available on
record, we are of the considered opinion that the prosecution has
miserably failed to prove the case against the convicts/appellants
beyond reasonable doubt and the impugned judgment of conviction
and sentence passed by the learned trial court requires interference
by this Court. Accordingly, the impugned judgment of conviction
dated 4th June, 2015 and order of sentence dated 5th June, 2015
passed by the learned trial court is, hereby, quashed and set aside.
Both the convicts/appellants are acquitted from the charges levelled
against them. Accordingly, this appeal is allowed.
23. The appellants are already in jail and they are directed to be
released from the custody if they are not involved in some other
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offence. Let the lower court's record be sent to the court concerned
forthwith along with a copy of this judgment.
I agree (Sujit Narayan Prasad, J.)
Sujit Narayan Prasad, J.
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated, the 4th July, 2023.
Rohit Pandey/A.F.R
