Jharkhand High Court
Wakil Mahatha vs The State Of Bihar (Now Jharkhand) on 7 May, 2024
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra, Ambuj Nath
Cr. Appeal (DB) No. 221 of 1995
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Against the judgment of conviction and order of sentence dated 28.07.1995 passed by
Shri Alakh Kumar Dubey, learned Additional Sessions Judge-I, Deoghar in Sessions
Case No. 12 / 1992.
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1. Wakil Mahatha
2. Ramesh Mahatha
3. Lelha Mahatha --- --- --- Appellants
Versus
The State of Bihar (Now Jharkhand)--- --- --- Respondent
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For the Appellants: M/s B.M. Tripathi, Sr. Advocate, Sunil Kr. Mahato, Advocate
For the Resp.-State: Mr. Abhay Kr. Tiwari, A.P.P
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PRESENT
Hon'ble Mr. Justice Ratnaker Bhengra
Hon'ble Mr. Justice Ambuj Nath
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Reserved on: 09.01.2024 Pronounced on: 7.05.2024
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Ambuj Nath, J: Appellants- Wakil Mahatha, Ramesh Mahatha and Lelha Mahatha have
filed this criminal appeal against the judgment of conviction and order of sentence
dated 28.07.1995, passed by Shri Alakh Kumar Dubey, learned Additional Sessions
Judge-I, Deoghar in Sessions Case No. 12 / 1992 arising out of Deoghar Town P.S.
Case No. 53 of 1988 corresponding to G.R. No. 158 of 1988, holding the appellants
guilty of the offence under sections 396 of the Indian Penal Code and thereby
sentencing them to undergo imprisonment for life without any fine stipulation.
During the pendency of this appeal, appellant no. 2-Bhagwat Mahatha and the
appellant no. 4-Sita Ram Mahatha died. Therefore, this appeal stood abated as against
the appellant no. 2 and appellant no. 4.
2. Prosecution case was instituted on the basis of the fardbeyan of the Informant
Banku Mahatha, alleging therein that on the intervening night of 22/23.02.1988 when
he was sleeping in his house, his elder son Belar Mahatha came to him and informed
that thieves have entered into the house. He along with his uncle Sambhu Mahatha
went inside the house and saw that six persons had entered there. On seeing the
Informant, one accused person assaulted him. In turn, Informant also assaulted one of
the accused person by sickle. The informant identified the accused Wakil Mahatha,
Bhagwat Mahatha, Ramesh Mahatha, Sita Ram Mahatha and Lelha Mahatha in torch
light. Before entering into the house of the Informant, the accused persons had also
committed dacoity in the house of the Informant's uncle Satya Narain Mahatha and
had injured him by hurling bomb upon him, due to which he succumbed to his injuries.
3. After investigation, police found the occurrence to be true and submitted charge
sheet against the accused persons under sections 147, 148, 149, 302, 448, 380, 342 and
323 34 of the Indian Penal Code and section 3 /4 of Explosive Substance Act.
Cognizance of the offence was taken by the Chief Judicial Magistrate, Deoghar under
the aforesaid sections. After cognizance, case was committed to the court of Sessions
by the Chief Judicial Magistrate, Deoghar on 25.02.1992 as it was exclusively triable
by the Court of Sessions.
4. Charge was framed against the appellants on 12.08.1993 under section 396 of
the Indian Penal Code, which was read over and explained to the appellants in Hindi,
to which they pleaded not guilty and claimed to be tried.
5. In order to prove its case, prosecution has adduced both oral and documentary
evidence.
Falguni Mahatha (P.W-1) has been declared hostile.
Babulal Mahatha (P.W-2) has supported the prosecution case.
Sambhu Nath Mahatha (P.W-3) has supported the prosecution case.
Prabha Devi (P.W-4) has been tendered as a witness.
Nandlal Mahatha (P.W-5) is a hearsay witness.
Chhaku Mahatha (P.W-6) has supported the prosecution case. He has identified
the appellants with the help of torch light.
Nuneshwar Mahatha (P.W-7) has also identified the appellants except the
Ramesh Mahatha in torch light.
Banku Mahatha (P.W-8) is the Informant of this case. He has supported the
prosecution case.
Rakesh Kumar Brahamachari (P.W-9) is the Investigating Officer of this case.
He has proved the fardbeyan which is Ext.3. He has also proved the formal FIR which
is Ext.5. He has also proved the inquest report which is Ext.6. He has also proved the
seizure list which is Ext.7. He has also proved the place of occurrence.
Defence has adduced the entry made in the CD from para-130 to 142 which has
been marked A series. They have also proved the Movement Order of the accused
Sitaram Mahata which is Ext.-B
6. Statement of the appellants was recorded under section 313 of the Cr. P.C,
which is general denial of the occurrence and false implication.
7. On the basis of the evidence - both oral and documentary available on the
record - learned Sessions Judge held the appellants guilty and sentenced them
accordingly.
8. Mr. B.M. Tripathi, learned senior counsel appearing on behalf of the appellants,
submitted that occurrence had taken place in the dark night and it was very difficult for
the witnesses to identify the miscreants with the help of torch light. It was further
submitted that torch light and earthen lamp by virtue of which witnesses have claimed
to identify the miscreants were not produced in the court as material exhibits. It was
further submitted that the parties are agnates and have previous enmity and it would be
very unnatural on the part of the appellants to risk their identification without any
precaution to cover their face. On these grounds, it was prayed that this appeal be
allowed and the appellants be acquitted of the charge.
9. Mr. Abhay Kumar Tiwari, learned A.P.P submitted that the appellants are named
in the FIR. They have been identified as dacoits who had entered the house of the
Informant by several witnesses. It was further submitted that the prosecution witnesses
have supported the prosecution case and corroborated the fact that the appellants had
committed dacoity in the house of the Informant and his uncle died because dacoits
hurled bomb at him due to which he succumbed to the injuries. Accordingly, it was
prayed that this appeal be dismissed.
10. Now, it has to be ascertained, whether prosecution has been able to prove its
case against the appellants beyond all reasonable doubt? In order to come to the
aforesaid findings, it has to be further ascertained,
i. Whether the deceased Satya Narain Mahatha died a homicidal death?
ii. Whether the deceased died homicidal death during course of dacoity committed by
the appellants? and,
iii. Whether prosecution has led cogent evidence to establish the identity of the
appellants as dacoits who had committed murder of the deceased Satya Narain
Mahatha and committed dacoity in the house of the Informant and that of the
deceased?
11. It is the case of the prosecution that on the intervening night of 22/23.02.1988,
dacoity was committed in the house of the Informant Banku Mahatha and several other
houses. The appellants are named accused in the First Information Report. It is further
alleged that during the commission of dacoity, dacoits had committed murder of the
uncle of the Informant namely, Satya Narain Mahatha.
12. Banku Mahatha is the Informant of this case. He has stated that on the
intervening night of 22/23.02.1988, he was sleeping in his house when his son
informed him that dacoits have entered inside the house. He came out with a sickle and
assaulted a dacoit with the sickle on his head. Dacoits were using torch light in which
he identified the present appellants Wakil Mahatha, Ramesh Mahatha, Lelha Mahatha
and other dacoits. He has stated that he heard the sound of explosion of bomb. After
dacoits fled away, he went to verandah of his uncle Satya Narain Mahatha and saw his
dead body. He had died due to the bomb explosion. He has also stated that after two
days of the occurrence, marriage of his cousin sister and brother was to be solemnized
and dacoits had looted away the jewellery, clothes, utensils and other articles. P.W.-8
has identified his signature on the fardbeyan which is Ext.-1/1. He has identified the
appellants in the dock. In his cross-examination, he has admitted that there was land
dispute between the parties. He has admitted that there was previous enmity between
his family members and the appellants.
13. Sambhu Nath Mahatha (P.W-3) is another eyewitness. He has stated that
occurrence took place on the intervening night of 22/23.02.1988. 20-25 dacoits entered
into the house, out of which, he identified six persons Lelha Mahatha, Bhagwat
Mahatha, Wakil Mahatha, Ramesh Mahatha, Sitaram Mahatha and Dhiran Mahatha.
He has identified the dacoits in the light of lamp. He has stated that dacoits looted
away silver jewelries, brass utensils, clothes and other articles. Dacoits also committed
dacoity in the house of his brother Satya Narain Mahatha. They hurled bomb on him,
due to which, he died. He has identified his signature on the fardbeyan which is Ext-1.
He has also identified his signature on the inquest report which is Ext.1/1. He has
stated that there was land dispute between the appellants and his family members. He
has identified the appellants in the dock.
14. Nandlal Mahatha (P.W-5) is hearsay witness. He has stated that at the time of
occurrence, he was at Deoghar. He came to know that dacoity was committed in his
house. When he returned home, he came to know that his brother Satya Narain
Mahatha has been murdered during commission of dacoity. He has stated that seizure
list of blood-stained soil and residue of bomb was prepared in his presence. He has
identified his signature on the seizure list, which is Ext.2.
15. Chhaku Mahatha (P.W-6) is another eye-witness. He has stated that occurrence
took place in the midnight about six years ago. On hearing sound of explosion, he
rushed to the place of occurrence and saw that Satya Narain Mahatha was lying dead.
Dacoits looted away jewellery and other articles from his house. He has identified the
appellants, Lelha Mahatha, Wakil Mahatha and other dacoits. He has not stated that he
has identified the appellant, Ramesh Mahatha. In his cross-examination, he has stated
that none of the appellants had masked their face.
16. Bhuneshwar Mahatha (P.W-7) is another eyewitness to the occurrence. He has
stated that on the date and time of occurrence, he was sleeping inside his house. On
hearing hulla of her aunt and sound of explosion, he went to the source of hulla and
saw that his brother Banku Mahatha was fighting with the dacoits. He has identified
the appellants, Wakil Mahatha, Lelha Mahatha and other dacoits in the torch light. He
has stated that about 30-35 dacoits had entered inside the house. He saw the dead body
of Satya Narain Mahatha lying there. In his cross-examination, he has stated that there
was land dispute between the appellants and his family. He has further stated that the
house of his brother is situated adjacent to each other. He has also stated that one of the
dacoits was injured due to the assault made by Banku Mahatha.
17. Rakesh Kumar Brahamchari (P.W-9) is the Investigating Officer of this case. He
has proved the fardbeyan which is Ext.-3. He has also proved the formal FIR which is
Ext.5. He has stated that he has prepared the inquest report at the place of occurrence.
He has also proved the inquest report which is Ext.-6. He has proved the seizure list
which is Ext.-7. At para-3 of his deposition, he proved the place of occurrence. He has
stated that house of the witnesses is situated in the same premises. There is courtyard
inside the house and Banku Mahatha resides in the room on the northern side while
Maheshwar Mahatha resides in the room situated on the western side and Nandu Pasi
resides in the room situated on northern side of the courtyard. He has further stated that
while entering the premises of the witnesses, the first room belongs to the deceased
Satya Narain Mahatha.
18. From the aforesaid oral testimony of the witnesses, it is apparent that they have
supported the prosecution case that on the intervening night of 22/23.02.1988, dacoity
was committed in the house of these witnesses. They had corroborated each other on
this point. Dacoits also looted jewellery and utensils from their houses. They have
categorically stated that they have identified the appellants and other accused as
dacoits while they failed to identify the remaining accused. They have stated that the
appellants had not masked their faces.
19. Mr. B.M. Tripathi, learned senior counsel appearing for the appellants,
submitted that it was very difficult to identify a person in torch light as focus of the
torch light is always on the front and it does not illuminate a person who is holding the
torch. Sambhu Nath Mahatha (P.W-3) has stated that he had identified the dacoits in
the light of lamp. Chhaku Mahatha (P.W-6) has stated that he had identified the
appellants in the torch light. It is apparent that he was holding the torch and he has
focused it on the dacoits, due to which, he had identified them. Similarly, Bhuneshwar
Mahatha (P.W.-7) has also stated that he has identified the appellants in the torch light.
Only Banku Mahatha (P.W-8) has stated that he has identified the dacoits in the torch
light used by the dacoits. Witnesses were known to the appellants from before. There
was enmity between them. So, it is not difficult for a person who was familiar to
another to identify that person even if the light was dim. There is nothing in the cross-
examination to doubt the veracity of these eyewitnesses. Accordingly, we come to the
findings that the prosecution has been able to show that on the intervening night of
22/23.02.1988, dacoity was committed in the house of the Informant and other houses
and the appellants were identified as the persons who had committed dacoity.
20. Now, it has to be decided whether the deceased Satya Narain Mahatha died due
to the bomb explosion of dacoits during commission of dacoity. From perusal of the
inquest report (Ext.-6), it appears that the Investigating Officer had found injury on the
leg and chest of the deceased. There was blood around the dead body. The
Investigating Officer had stated that the last portion of the chest of the deceased was
damaged due to the bomb injury. From perusal of the seizure list (Ext.1), it transpires
that the Investigating Officer has seized residue of bomb from the place where the
dead body of the deceased Satya Narain Mahatha was lying.
21. Mr. B.M. Tripathi, learned senior counsel appearing on behalf of the appellants,
further submitted that the prosecution has not formally proved the postmortem report
of the deceased. In fact, it has been brought on the record by examining an Advocate
Clerk namely, Chandra Shekhar Singh as P.W-10. He has stated that he has never
worked in the hospital and the postmortem report was not prepared in his presence.
Learned Senior counsel submitted that the manner in which postmortem report has
been mentioned, it cannot be relied upon and read in the evidence.
22. Mr. Abhay Kumar Tiwari, learned A.P.P has relied upon the decision of the
Hon'ble Supreme Court passed in the case of Solanki Chimanbhai Ukabhai versus
State of Gujarat reported in [(1983) 2 SCC 174], wherein it was held that testimony
of eyewitnesses would be preferable to medical evidence, unless medical evidence
completely rules out the eyewitness version.
23. As far as the cause of death of the deceased Satya Narain Mahatha is concerned,
Sambhu Nath Mahatha (P.W-3) has stated that while committing dacoity in the house
of Satya Narain Mahatha, dacoits hurled bomb on him, due to which, he sustained
injuries and succumbed to the injuries. Chhaku Mahatha (P.W-6) is another eyewitness.
He has also supported the fact that on hearing the sound of explosion, he rushed to the
place of occurrence and saw that Satya Narain Mahatha was lying dead. Muneshwar
Mahatha (P.W-7) has stated that on hearing alarm of her aunt and the sound of
explosion, he went to the house of Satya Narain Mahatha and saw his dead body.
24. Rakesh Kumar Brahamachari (P.W-9) is the Investigating Officer of this case.
He has prepared the inquest report which is Ext.-6. From perusal of the inquest report,
it appears that the deceased Satya Narain Mahatha had sustained injuries on his chest
due to the bomb explosion and cause of death of the deceased has been opined to be
the injury caused due to bomb explosion. It is correct that the doctor who had
performed postmortem on the dead body of the deceased has not been examined. In
fact, the postmortem report has been proved by Chandra Shekhar Singh (P.W-10) who
is an Advocate Clerk. This postmortem report is Ext.-9. This witness has stated that Dr.
Kameshwar Prasad who has performed the postmortem on the dead body of the
deceased, was sick and he was unable to move. The postmortem report has been
adduced in evidence without any objection. As such, it can be read in evidence.
25. From perusal of the postmortem report, it transpires that Dr. Kameshwar Prasad
who has performed postmortem on the dead body of the deceased Satya Narain
Mahatha, has found the following antemortem injuries on the person of the deceased:
i. Blast injury on front of left side of chest causing a gap of 10"
diameter with laceration of muscles, left lung and heart with
blackening of marginal.
ii. Incised wound 1 ½ "x ¼ "x through and through on left chin to
lateral part of left side of lower lip.
iii. Incised wound obliquely on front of chest by the side of midline
3"x1" exposing ribs.
iv. One Incised wound were horizontally placed by the side of midline
2 ½ "x1" exposing ribs.
On opening chest, multiple fractures of left 4th to 10th ribs
cautiously ones position medley embedded in the left lung tissue.
The doctor has opined the cause of injury no. 1 was because of
some explosive materials.
Cause of death of the deceased was opined to be the injury caused
due to explosive substance, may be bomb blast.
26. From the aforesaid oral and documentary evidence adduced by the prosecution,
it transpires that the deceased Satya Narain Mahatha died due to the injury caused by
bomb explosion, as the dacoits while committing dacoity, hurled bomb. Accordingly,
we come to the conclusion that the deceased Satya Narain Mahatha died homicidal
death. As far as the identity of the appellants, Wakil Mahatha, Ramesh Mahatha and
Lelha Mahatha are concerned, all the witnesses have stated that they were known to
them prior to the occurrence and they have identified them either in the source of light,
lamp or torch light.
27. Sambhu Nath Mahatha (P.W-2) and Chhaku Mahatha (P.W-6) have stated that
they had also identified the appellants at the time of occurrence. They have stated that
none of the appellants had masked their faces. Nuneshwar Mahatha (P.W-7) has stated
that he identified the appellants and other dacoits in the torch light. These appellants
were identified by the witnesses in the dock.
Statement of these witnesses on the identification of the appellants as dacoits,
who had committed dacoity on the date of occurrence, is consistent and corroborates
each other's testimony.
28. We do not find any inconsistency in their evidence to doubt their veracity.
Accordingly, this appeal stands dismissed. Appellants are on bail. Their bail bonds are
cancelled. They are directed to be taken into custody forthwith to serve out the
remaining sentence.
Pending I.A (s) if any, stands disposed of.
(Ratnaker Bhengra, J)
(Ambuj Nath, J)
Jharkhand High Court, Ranchi
Dated 7 May 2024
Ranjeet/
