Jharkhand High Court
Madan Mahto vs The State Of Jharkhand on 14 November, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.781 of 2002
WITH
Criminal Appeal (D.B.) No.777 of 2004
------
(Arising out of judgment of conviction and order of
sentence dated 28.09.2002 passed by Learned IInd
Additional Judicial Commissioner, Khunti, Ranchi, in S.T.
No.82 of 2000)
------
Criminal Appeal (D.B.) No. 781 of 2002
Madan Mahto, son of Late Kandan Mahto, resident of Village
Karamtand, P.S. Sonahatu, District Ranchi, Jharkhand.
... ... ... Appellant
Versus
The State of Jharkhand. ... ... ... Respondent
WITH
Criminal Appeal (D.B.) No. 777 of 2004
Rajeshwar Mahto, son of Late Kandar Mahto, resident of Village
Karam Tand, P.O. Sonahatu, District Ranchi, Jharkhand.
... ... ... Appellant
Versus
The State of Jharkhand. ... ... ... Respondent
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PRESENT : SRI ANANDA SEN, J.
: SRI GAUTAM KUMAR CHOUDHARY, J.
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For the Appellants : Ms. Jyotsna Mahato, Advocate
Mr. Harendra Kumar Mahato,
Advocate
Mrs. Ahalya Mahato, Advocate
For the State : Mr. Shiv Shankar Kumar, A.P.P.
------
JUDGMENT
By Court, :
14th November, 2024
These Criminal Appeals are preferred on behalf of
the appellants being aggrieved by the impugned judgment of
conviction and order of sentence dated 28.09.2002 passed by
Learned IInd Additional Judicial Commissioner, Khunti, Ranchi,
in S.T. No.82 of 2000, whereby and wherein the appellants have
been convicted for offences under Sections 307/34 and 302/34
I.P.C. They were sentenced to undergo rigorous imprisonment
for 10 years for offence under Section 307/34 I.P.C. and further
to undergo imprisonment for life for offence under Section
302/34 I.P.C.
2. The instant case is based on the fardbeyan of P.W.-7.
She is the wife of the deceased. She stated that they were
washing their hands and feet near their well when these
appellants came and started assaulting her husband. She stated
that she was there but after her husband was assaulted on the
back and hand, was thrown into the well. She further states
that though she was not assaulted but she was also thrown in
her well. As she screamed and raised alarm, her brother-in-law
and son of brother in law i.e. P.W.-1 and P.W.-4 came and
rescued them from the well. Her husband was still then alive
but died on the way to the hospital.
3. Based on the aforesaid fardbeyan F.I.R. being
Sonahatu P.S. Case No.48/99 was registered against the
appellants under Sections 302, 307/34 I.P.C. and charge-sheet
was filed against the appellants under Sections 307, 302/34
I.P.C. Thereafter cognizance was taken by learned A.C.J.M. and
then the case was committed to the Court of Sessions. As the
appellants pleaded not guilty, charges were framed.
4. Heard learned counsel representing the appellants
and learned A.P.P. representing the State and perused the
material available on record.
5. Ms. Jyotsna Mahato, learned counsel representing
the appellants submits that the prosecution has not come up
with the correct version and has suppressed the material facts.
Even the place of occurrence has not been proved by the
prosecution. As per her, there was no intention to commit
murder of the deceased. There was land dispute and in fact it is
the informant and her husband who had come to the house of
these appellants whereas the prosecution has tried to project
the story that it is these appellants who had gone to the house
of the deceased, assaulted them and threw them in the well.
There is contradictory evidence of P.W.-7 and if her statement is
read with the evidence of P.W.-1, it will be clear that the
deceased had come to the house of these appellants and there
is serious doubt about the place of occurrence and the identity
of the well where the deceased and the informant were found.
Further, sole eye witness has not stated that any of the
appellants had assaulted the deceased on the neck. Further,
non-examination of independent witness i.e. the villagers who
admittedly were present at the place of occurrence creates a
doubt about the prosecution case. Even P.W.-1 and P.W.-4 are
not the eye witnesses to the said occurrence. It has also been
argued that it has come in evidence that there was sludge by
the side of the well and there is high probability that both of
them slept and fell in the well as the well was not fenced.
6. Learned A.P.P. representing the State submits that it
is the case of the prosecution that the informant and her
husband was assaulted and thrown in the well. P.W.-1 and P.W.-
4 had categorically stated that both of them were rescued from
the well. Thus, the prosecution has able to prove the case
beyond all reasonable doubt.
7. In this case, we find that 10 witnesses have been
examined in this case.
8. P.W.-9 is the Doctor, who conducted the post-mortem
of the deceased. He found the following injuries:-
(i) Abrasion :- 3 x 1 cm, 2 cm x 1 cm on right chest front
lower part.
(ii) Bruise (rail track) 7cm x 2 cm right thigh front middle
part situated transversely.
(iii) Bruise 4 cm x 2 cm right arm lateral side middle part.
(iv) Lacerated wounds 3 cm x 2 cm x bone deep on left
parietal region of head.
2. On internal examination there is diffuse contusion of left
perito tempro frontal scalp with mosaic fracture of left perito
temporal bone measuring 11 cm x 9 cm area and crack
fracture of right perito temporal and occipital bone. There is
contusion of brain and presence of subdural blood and blood
clot over both sides of brain.
As per the opinion of the Doctor, all the injuries were
ante-mortem and caused by hard and blunt substance i.e. lathi
and the death is head injury which is sufficient to cause death.
The post-mortem report was marked as Ext.-2.
P.W.-8 is the Doctor who had examined the injured -
informant. He only stated that the informant had complaints of
body ache and the injury was simple in nature. Her injury report
was marked as Ext.-1.
The main witness in this case are P.W.-7 namely
Sailo Devi (informant), P.W.-1 namely Laxmi Narayan Mahto
(brother-in-law of the informant) and P.W.-4 namely Pradip Kr.
Mahto (son of the brother-in-law of the informant).
P.W.-7 namely Sailo Devi, in her evidence stated that
while she and her husband were washing their hand and feet
near their well, these appellants came and assaulted her
husband with lathi. She admitted that she was not assaulted.
Her husband was thrown into the well of the said witness and
thereafter the said witness was also thrown. This witness raised
alarm when P.W.-4 and P.W.-1 reached near the well and
rescued them. P.W.-7 further in para-6 also admitted that the
well belongs to Madan Mahto and she stated that all of them
have separate wells.
P.W.-1 namely Laxmi Narayan Mahto, stated that he
and his son rescued the informant and her husband. He stated
that after hearing alarm and commotion, he reached the well
and found the informant and her husband in the well. He stated
that the well was not fenced. The same was an unlined well or
percolation well and the sides were not protected by any
artificial steining. In para-7, this P.W.-1 stated that the well
belongs to Madan (appellant in Criminal Appeal (D.B.) No. 781
of 2002). She also stated that several other village force mostly
who are women had gathered at the place of occurrence.
P.W.-4 namely Pradip Kr. Mahto, had also stated in
the similar lines that he along with his father (P.W.-1), went to
rescue the informant and her husband.
These two witnesses further stated that the
deceased was alive but he died while he was being taken to the
hospital.
9. In this case, we find that the Investigating Officer
has not been examined. In each and every case, non-
examination of the Investigating Officer is not fatal for the
prosecution. If the defence brings out any strong any cogent
reason that due to non-examination of the Investigation Officer,
they are prejudiced, then such non-examination can be fatal.
The same depends on facts of each and every case. There is no
straightjacket formula.
10. In this case, P.W.-7 had stated that they were in
front of their well and they were washing their hands and feet
when these appellants came, assaulted her husband, threw him
and herself in the well. This gives an impression that they were
thrown into their own well but P.W.-1 in para-7 categorically
stated that they were thrown into the well of Madan Mahto who
is appellant in Criminal Appeal (D.B.) No. 781 of 2002. If that
be so, there is a doubt about the place of occurrence. This
doubt could have been cleared by the Investigating Officer but
the Investigating Officer has not been examined in this case.
11. Further, we find that there were several independent
witnesses present at the place of occurrence who reached at the
place before P.W.-1 and P.W.-4 reached to rescue the informant
and her husband but none of them have been examined by the
prosecution. Admittedly, P.W.-1 and P.W.-4 have not seen the
occurrence. They reached the place of occurrence i.e. the well,
only on hearing the alarm and scream of P.W.-7 when she and
her husband were already in the well. Thus, save and except
P.W.-7, no one has seen as to who was the person who had
assaulted and thrown them in the well. P.W.-1 and P.W.-4 also
admitted that they have not seen the assault or they had not
seen that the appellants had thrown the informant and her
husband into the well.
12. The post-mortem report, evidence of P.W.-7 (para-3)
and also of P.W.-1 clearly suggest that the deceased did not die
of drowning as they stated that when the deceased was rescued
from the well, he was breathing and was alive and he died on
the way to hospital.
13. From the evidence, it appears that the informant and
her husband went near the house or the well of this appellant -
Madan and Madan had not gone near the well of this informant,
which in fact was the prosecution case. This also is a major
discrepancy which remained unanswered due to non-
examination of the Investigating Officer.
14. So far as the assault is concerned, P.W.-1 stated that
these two appellants came and assaulted the husband of the
informant but has not stated as to on which part of the body,
the assault was made.
15. The defence has come up with a plausible argument
that since the earth near the well was slippery and there was
sludge and it was rainy season and the well was not fenced, the
informant and her husband got slipped and fell into the well and
the injury was as a result of fall into the well. This proposition
put forward by learned counsel representing the appellants
cannot be brushed aside, as if there was any intention to
commit murder by these two appellants, informant would not
have been spared, as P.W.-1 has stated that she was not at all
assaulted by the appellants.
16. Thus, from what has been discussed above, we find
that there is vital contradiction regarding place of occurrence.
Non-examination of the Investigating Officer has caused great
prejudice to the defence. Further, non-examination of the
independent witness in this particular case can be said to be
fatal. Thus, by giving benefit of doubt, we are inclined to acquit
these appellants.
17. Accordingly, both these Criminal Appeals are
allowed. The impugned judgment of conviction and order of
sentence dated 28.09.2002 passed by Learned IInd Additional
Judicial Commissioner, Khunti, Ranchi, in S.T. No.82 of 2000,
are hereby set aside. As the appellants are on bail, they are
discharged from the liability of bail bonds, so are the bailers.
18. We appreciate the efforts put in by Ms. Jyotsna
Mahato, learned counsel representing the appellants, who
addressed the Court at great length in this case, as she is fully
ready and has assisted us in a proper manner considering that
she has only put in one and half years in practice.
19. Pending interlocutory application, if any, stands
disposed of.
20. Trial Court Record be transmitted back to the Court
concerned.
(ANANDA SEN, J.)
(GAUTAM KUMAR CHOUDHARY, J.)
HIGH COURT OF JHARKHAND, RANCHI
Dated:- 14/11/2024
NAFR / Prashant
