Jharkhand High Court
Dharampal Mahto Son Of Prabhuwan Mahto vs The State Of Jharkhand on 21 November, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 462 of 2002
With
Criminal Appeal (D.B.) No. 456 of 2002
[Arising out of judgment of conviction dated 27.07.2002 and order of
sentence dated 31.07.2002 passed by learned Additional Sessions Judge,
Fast Track Court-I, Palamau at Daltonganj in Sessions Trial No. 41 of
1998]
Criminal Appeal (D.B.) No. 462 of 2002
1. Dharampal Mahto son of Prabhuwan Mahto
2. Naresh Mahto son of Budhnath Mahto
Both residents of Village Soohad and Oriya respectively, P.S.
Lesliganj, District Palamau .... .... .... Appellants
--Versus--
The State of Jharkhand .... .... .... Respondent
With
Criminal Appeal (D.B.) No. 456 of 2002
1. Rajnath Mahto son of Late Nepal Mahto
2. Anil Kumar Mahto son of Braj Bilas Mahto
3. Mukteshwar Mahto @ Mun Desh Mahto
son of Late Parmeswar Mahto
4. Sidhnath Mahto son of Triveni Mahto
All residents of Village Oreya, P.S. Lesliganj, District Palamau
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellants
: Mr. A.K. Kashyap, Sr. Advocate
Mr. Ashish Kumar Shekhar, Advocate
Mr. Suraj Verma, Advocate
For the State : Mr. Saket Kumar, A.P.P.
-----
PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
-----
JUDGMENT
Reserved on: 14.11.2024 Pronounced On: 21.11.2024
Per Gautam Kumar Choudhary, J. Appellants are before this Court in appeal
against the judgment of conviction and sentence passed under Section
396 of the IPC.
2. Informant of the case is Raj Kumar Mahto resident of Village Oriya
Kala under P.S. Lesliganj, District Palamau. In the intervening night of
26/27.05.1997, he was sleeping on roof top of his house along with his
brothers, Amresh Mahto, Sant Kumar Mahto and sons Ramdhar Mahto
and Inder Mahto. At about 12 O' clock in the night, someone called from
outside asking Amresh Jee to come down. When he went there, he saw
two persons standing with rifle in uniform and they asked him to call
Amresh Jee. He understood that they were extremists and asked
Amresh to come down. Amresh addressed one of them as Randhir
Bhaiya. They asked him to open the shop to give them medicines.
Thereafter, Randhir Singh blowed whistle on which 40 - 45 extremists
in uniform armed with rifle came forward. On the gun point, they asked
him to open the cloth and grocery shop. The informant, Amresh, Sant
Kumar and his sons were hand cuffed by the extremists, who looted
grain, clothes, ornaments, chair, etc. and other valuables. Amresh Mahto
was brutally assaulted with green bamboo stick and thereafter, his face,
neck was gorged with knife, resulting in his death. Informant identified
Anil Mahto, Mundesh Mahto, Sidhnath Mahto, Raj Nath Mahto, Naresh
Mahto and Dharm Pal Mahto in the extremist group.
3. The genesis of offence has been stated to be a dispute between Raj
Nath Mahto and Amresh Mahto and he had threatened Amresh Mahto.
Since Amresh Mahto had a Public Distribution Shop therefore, Raj Nath
Mahto nursed grudge against him. Chowkidar- Chandu Mahli was also
assaulted and while leaving, they fired 4 - 5 rounds.
4. On the basis of the fardbeyan, Lesliganj P.S. Case No.43/97 was
registered under Section 396 of the IPC against these appellants and
other two named and 400-500 unknown extremists. After investigation,
two separate charge sheets were submitted against altogether seven
accused persons along with these appellants who were jointly put on
trial for the offence under Section 396 of the IPC.
5. The learned trial Court convicted these appellants under Section
396 of the IPC and sentenced them to rigorous imprisonment for life.
6. Altogether ten witnesses have been examined on behalf of
prosecution and relevant documents have been marked as Exhibit 1 - 5
which includes post-mortem examination report, fardbeyan, formal FIR
and signature on seizure list. Statement of the accused persons were
recorded under Section 313 of the Cr.P.C. Defence is of innocence. Four
defence witnesses have also been examined.
7. Learned counsel on behalf of the appellants submits that the
medical evidence does not corroborate the ocular evidence. As per the
witnesses, who claimed themselves to be the eye witnesses stated that
the deceased was assaulted on the neck and other parts of the body by
sharp cutting weapon, but the Doctor (P.W. 8) only found laceration on
the neck and ruled out that the same was caused by sharp cutting
weapon, as it was possible by hard and blunt substance like lathi and
kacchra (raw bamboo). He further submits that the entire occurrence
had taken place at night in the village, but none of the independent
witnesses of the village have been produced as witness by the
prosecution, and only the family members of the deceased have deposed
before the Court.
8. It is further submitted that there was no source of identification as
it was a dark night. Further, the Public Distribution Shop and the other
shop of the deceased, were looted by these appellants, but surprisingly
none of the looted articles were either recovered from the possession of
these appellants or from anyone.
9. The I.O. has also not been examined which has caused prejudice
to the appellants, as the place of the occurrence and the fact of the
commission of dacoity has not been corroborated. Further, what was the
source of identification, could have easily been explained by the I.O., but
since he has not been examined, prejudice has been caused.
10. He further submits that though in a case based on eye witness, it
is not necessary to prove the motive, but in this case when the
prosecution has come up with the motive the same should have been
corroborated by cogent evidence. There is nothing on record that a
meeting was called and the deceased was directed to attain the meeting
but he did not. Further, there was nothing to suggest that there was
previous enmity.
11. He lastly submits that non-examination of the I.O. has also caused
prejudice as the contradictions in the statement of the witnesses while
recording their statement under Section 161 of the Cr.PC could not be
brought before this Court.
12. The learned counsel for the State opposes these appeals and
submits that the occurrence had taken place on the dead of the night.
The appellants are none but the co-villagers of the deceased thus, they
were well known to them. The incident had occurred in the house and
shop of the deceased. Thus, the family members were natural eye
witnesses. This is a case where a very large group of extremists entered
the house and shop of the deceased and brutally murdered the brother
of the informant, after committing dacoity. Several materials like chair,
clothes, grocery etc. were looted by them. This fact has been
substantiated by the eye witnesses who are P.W. 1, P.W. 2, P.W. 3 and
P.W. 4.
13. This is a case where charge has been framed under Section 396 of
the Indian Penal Code. Thus, recovery of the looted article is not
necessary to prove the aforesaid charge. In view of direct eye witness
account, motive is not required to be proved, which has however been
specifically stated by the witnesses in their testimony.
14. Lastly, it is submitted that the evidence of the Doctor is nothing
but opinion which is not binding upon this Court. Doctor clearly
suggests that there is laceration on the neck. The injury which has been
caused in the neck, corroborates the ocular evidence as the eye witnesses
have stated that the deceased was assaulted on his neck.
FINDING
15. Factum of incidence in which dacoity was committed in the shop
of informant and his brother was murdered in cold blood, is not
disputed and seriously assailed in the trial or in appeal. What is assailed,
is the complicity of these appellants in the crime.
16. Prerequisite of fair trial is that it is conducted in an atmosphere
where the witnesses come and depose free from fear and duress. Where
400-500 extremists swoop over villages with impunity, loot shops of
victims, commit murder and leave unobstructed, the very expectation
that outsiders will come forward to testify against such outlaws will be
an unrealistic pursuit. Evidence Act is a pragmatic document, it does not
lay down any number of witnesses to prove a fact, and the test of proof
in any case, is based on prudent man's test. Insistence of corroboration
by independent witnesses in such cases is therefore neither realistic, nor
it is a legal requirement, for the reasons that where the crime scene is the
house, family members are considered to be a natural and not an
interested witness.
17. P.W. 1 in para 32 of his cross-examination has deposed that there
was a dominance of MCC in his village and villagers feed them out of
fear. This gives a fair idea that it was not the rule of law, but the writ of
extremists that governed the life of citizenry living in areas dominated
by them. These circumstances are 'matters' which can be considered
under Section 3 of the Evidence Act for the prove of a fact. It will be
desirable to take note of the observation of Hon'ble Supreme Court for
appreciation of evidence in such cases.
Dalip Singh & Others v. State of Punjab, (1953) 2 SCC 36
"24. A witness is normally to be considered independent unless
he or she springs from sources which are likely to be tainted and
that usually means unless the witness has cause, such as enmity
against the accused, to wish to implicate him falsely. Ordinarily,
a close relative would be the last to screen the real culprit and
falsely implicate an innocent person".
Darya Singh Vs. State of Punjab, AIR 1965 SC 328
"It is well known that in villages where murders are committed
as a result of faction existing in the village or in consequence of
family feuds, independent villagers are reluctant to give
evidence because they are afraid that giving evidence might
invite the wrath of the assailants and might expose them to very
serious risks".
18. There is no delay in institution of the case which was lodged a day
after the incidence. The name of all these appellants are figured in the
FIR.
19. A brief scrutiny of the prosecution evidence will be necessary to
appreciate the argument raised at Bar in appeal.
P.W. 4 is the informant of the case. He has given a detailed account
of the incidence in which cloth shop, medicine shop and the house was
looted by the extremists, who were armed with rifle and threatened to
bomb inmates of the house if they resisted. Informant identified all these
appellants and deposed that his brother Amresh Mahto was brutally
assaulted and killed by them by a Kachra. His testimony remained
unshaken in the cross-examination. Since the incidence took place in the
shop attached to the house of the informant therefore, he was a natural
witness to the incidence. The witness has been cross-examined at length,
but defence has failed to elicit any contradiction in his account. He has
deposed in para (25) that among the accused persons, Anil Mahto,
Mugdesh Mahto, Sidhnath Mahto, Naresh Mahto and Raj Nath Mahto
were his co-villagers and their house was at a distance of about 1 Km.
from his house. There is no inconsistency between the fardbeyan of
informant recorded by police and his testimony before the Court and
can be said to be fully corroborated by it in terms of Section 157 of the
Evidence Act.
P.W. 1- Ramadhar Mahto is the son of the informant and was
sleeping at the roof top when he was summoned along with his other
male family members by the extremists. He has also identified the
appellants in dock. Testimony of informant is corroborated by the
testimony of this witness. In para-26 of the cross-examination, he has
deposed that appellants had not covered their faces. He has deposed in
para-39 that there was enmity with Rajnath Mahto, Mukhdeo Mahto
and Naresh Mahto.
P.W. 2- Sant Kumar Mahto, who is also the family member of the
informant and was sleeping with the informant, has testified to the
occurrence in which Dacoity was committed and Amresh Mahto was
brutally killed by the raiding party. Specific overt act has been attributed
to these appellants. He has deposed in para-37 of the cross-examination
that murder was committed about 25 feet from the place where they
were made to sit. He has admitted in para 44 that there was no past
enmity with Sidhnath Mahto and Anil Kumar Mahto. In para 48, it is
deposed that there was past enmity with Rajnath, Mukhdeo and Naresh.
P.W. 3- Kailash Mahto aged 80 years is of the same village. He has
deposed that Randhir Singh and Vyash Jee came there and enquired
whether informant and Amresh were in the house. On being asked by
them, he called Amresh Mahto, on which they came down. Thereafter,
about 500 extremists came there, who were armed with gun, they looted
the house and the shop and Amresh Mahto was done to death. In cross-
examination at para-7 he has deposed that they broke the door of the
house and took articles along with cattle. In the cross-examination, at
para 15, he has deposed that Ramadhar, Indar, Raghunath and
Santhkumar had been tied down. In Para-16, he has deposed that
Amresh used to tether his cattle in the nursery, which was objected to
by Rajnath Mahto. In Para 21, he has deposed that MCC had planted
black flag over the school which was removed and tricolour was hoisted
by the deceased in its place.
P.W. 5, P.W. 6 and P.W. 10 have deposed that Amresh Kumar had
been killed by the extremists and his house was looted.
P.W. 7 has not identified any of the accused but has vouched about
the incidence in which Amresh Kumar was done to death.
20. Non-examination of the Investigating Officer is not necessarily
fatal to the prosecution case, unless it has prejudiced the defence. Such
a prejudice can arise where attention of a witness has been drawn to his
statement made to the police, thereby eliciting any vital contradiction in
his account. Non-examination of I.O. in such a case will deprive the
defence from getting the statement under Section 161 of the Cr.P.C, to
be formally proved by the I.O. Such prejudice may also arise when the
place of occurrence has not been established or where the case hinges on
disclosure statement, and the I.O. has not come forward without any
cogent reason to prove the same. (See Rakesh Kumar @ Sachdeva @
Deva Vs. State of Delhi Administration, 1994 Supp. (3) SCC 729; State
of Karnataka Vs. Bhaskar Kushali Kotharkar & Others, (2004) 7 SCC
487)
21. Here in the present case, defence has drawn attention of some of
the witnesses to their previous statements, but the difference between
the two statements is only peripheral and cannot be termed as vital
contradiction going to the root of the matter so as to disbelieve the
account of the witnesses. Therefore, the question of prejudice on this
count will not arise. There is no dispute about the place of occurrence
and therefore, non-examination of I.O. shall also have no bearing on this
score.
22. Appellants are charged under Section 396 of the IPC which reads
as under
"396. Dacoity with murder--If any one of five or more persons,
who are conjointly committing dacoity, commits murder in so
committing dacoity, every one of those persons shall be punished
with death, or [imprisonment for life], or rigorous imprisonment
for a term which may extend to ten years, and shall also be liable
to fine".
The Section declares the liability of the persons involved in dacoity
as co-extensive with the one who actually commits murder. To invoke
Section 396 IPC, it is not necessary that the person involved in dacoity
should have committed murder himself. Mere commission of murder in
the course of dacoity, is enough to invoke the provisions of Section 396
IPC against all the persons conjointly committing the dacoity. The plea
that, he was not involved in committing murder while committing
dacoity, is not available to a person against whom there is evidence that
he was involved in the commission of dacoity in which murder was also
committed. Thus, in such cases, all of the associates who participated in
the commission of dacoity may be convicted under Section 396 of the
IPC although they may have no participation in the murder beyond the
fact of participation in dacoity. It is also not necessary that murder
should have been committed within the contemplation of those
involved in dacoity. [See Kalika Tiwari & Others Vs. State of Bihar, AIR
1997 SC 2186]
23. Prosecution has thus succeeded to establish the participation of the
accused persons in the commission of dacoity and secondly, the murder
having been committed in the process to prove the charge under Section
396 [see Rafiq Ahmed @ Rafi Vs. State of U.P., (2011) 8 SCC 300].
24. Court identification is good identification and there is no straight
jacket formula that TIP should necessarily be held in all cases. Persons
who are known, can be identified even by their words spoken, gait and
over all physical appearance [see Motilal Yadav Vs. State of Bihar, (2015)
2 SCC 647; State of M.P. Vs. Makhan @ Madan & Others, 2008(10) SCC 615;
State of Andhra Pradesh Vs. Dr. M.V. Ramana Reddy & Others, 1991 (4) SCC
536 ; Nathuni Yadav Vs. State of Bihar, 1998(9) SCC 238].
25. In the present case, from the evidence as discussed in the foregoing
paragraphs, appellants were involved in dacoity, is established. Murder
was also committed in the same process, has been duly proved. The
argument regarding source of identification, is not sustainable for the
reason that the appellants were co-villagers and it has come in evidence
that they had not even covered their faces. Commission of dacoity was
not a touch and go affair, as they took their time in looting the cloth shop,
medicine shop and the house of the deceased of the informant (P.W. 4)
and witnesses P.W. 1 and P.W. 2. They had sufficient opportunity to
identify the accused persons during this period. Once the role of the
appellants in commission of dacoity is proved, charge under Section 396
of the IPC is proved, and it hardly matters who participated in the actual
slaughter of the hapless deceased.
26. The Autopsy Surgeon has found the following antemortem
injuries: -
I. Lacerated wound on left forehead above left eye 2" x ½" x bone
deep. On dissection fracture of left side of frontal bone with blood
and blood clots inside cranial cavity.
II. Lacerated wound above right eye on forehead 1 ½" x ½" x bone
deep.
III. Lacerated wound on upper lip 2" x ½" x bone deep.
IV. Lacerated wound on lower left eye 2 ½ " x 1" x bone deep.
V. Lacerated wound on neck 3 ½" x 1" starts from middle line of neck
to medial border left sterno cervical muscles, blood vessels torn,
blood and blood clot inside wound, fracturing hyoid bone.
VI. Dislocation of cervical vertebrae.
VII. Lacerated wound on right occipital region 2 ½ " x 1" x bone deep.
Doctor opined the death was due to shock and hemorrhage caused
by above mentioned injuries, time elapsed since death 6 to 24 hours.
27. From the above injuries, otherwise also argument of injury being
lacerated and not incised as opined by the Autopsy Surgeon, is
questionable for the reason that the width of most of the injuries have
been noted to be ½", which cannot rule out possibility of it being caused
by a sharp weapon. Learned trial Court has assigned sufficient reasons
for rejecting this line of argument.
28. The plea of alibi taken by appellants- Anil Mahto, Dharampal
Mahto and Sidhnath Mahto, has been rightly rejected by the learned trial
Court by assigning sound and robust reasons in para 24 of the judgment
which needs no interference.
29. Mere fact that none of the looted properties has been recovered
from any of the appellants is immaterial for prove of charge under
Section 396 which may be an essential ingredient under Section 412 of
the IPC [see Om Prakash & Others Vs. State of U.P., (1983) 2 SCC 358].
30. Testimony of witnesses do not leave a shred of doubt regarding
the incidence in which armed extremists descended on the house and
shops of the informant and committed dacoity. Amresh Mahto was
brutally killed in the incidence.
31. In view of the reasons discussed above, I do not find any reason to
interfere with the judgment of conviction.
32. On the point of sentence, more than 27 years have elapsed since
the incidence took place in the year 1997. Considering the age,
antecedent and overall facts and circumstance of the case, a sentence of
RI for ten years and a fine of Rs 10,000/- each for committing offence
under Section 396 of the IPC, will meet the ends of justice. In default of
payment of fine, S.I. for one year. Appellants are on bail, which is
cancelled and they are directed to surrender before the learned trial
Court below within two weeks to serve the remaining part of their
sentence.
Criminal Appeals stand dismissed with modification of sentence.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned
along with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 21st November, 2024
AFR/Anit
