Jharkhand High Court
Bailalsh Mahato Son Of Jabit Mahato vs The State Of Jharkhand on 21 November, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 652 of 2002
[Arising out of judgment of conviction dated 25.09.2002 and order of
sentence dated 26.09.2002 passed by learned Additional District &
Sessions Judge, Fast Track Court No.III, Garhwa in Sessions Trial No.
44 of 1988]
1. Bailalsh Mahato son of Jabit Mahato
2. Lallu Mahto son of Jabit Mahato
3. Bhagat @ Bhagwat Mahato son of Jabit Mahato
4. Kailash Mahato son of Bikrama Mahato
5. Sidheshwar Mahato son of Ram Keshwar Mahato
6. Chaturgun Mahato son of Ram Dutt Mahato
All resident of Village Sundipur, P.S. Manjhigaon District Garhwa
.... .... .... Appellants
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellants : Mr. Jai Shankar Tripathi, Advocate
For the State : Mr. Abhay Kumar Tiwari, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
Reserved on: 11.11.2024 Pronounced On: 21.11.2024
Per Gautam Kumar Choudhary, J. Appellants are before this Court in appeal
against the conviction and sentence passed under Section 302/34 of the
IPC.
2. Prosecution case is about lynching the deceased for being
suspected of committing theft of machine parts of the appellants.
3. Informant- Awadh Kishore Singh lodged the FIR on 25.10.1986
that on 24.10.1986, he received information from one Vijay Singh of
village that his brother- Awadhesh Singh had been done to death by
Bailalsh Mahato, Lalu Mahato, Bhagat Mahato, Kailash Mahato in front
of the house of Jagdish Dusadh by means of axe. Naresh Singh was
direct eye witness to the incidence. Genesis of offence has been stated
that the accused persons had alleged that the deceased was involved in
dismantling machine parts.
4. On the basis of fardbeyan, Manjhiaon P.S. Case No.97/86 was
registered against the named accused persons under Sections 302,
324/34 of the IPC. Police on investigation, submitted charge sheet
against these appellants who were put on trial for offence under
Sections 302 and 324 of the IPC.
5. Altogether eleven witnesses were examined on behalf of
prosecution and the relevant documents including formal FIR,
fardbeyan and post-mortem examination report have been adduced
into evidence and marked as exhibits.
6. It is argued by learned counsel, Mr. Jai Shankar Tripathi on
behalf of the appellants that P.W. 4 and P.W. 5 have not at all
supported the prosecution case and were declared hostile. Except for
P.W. 8- Vijay Singh, and P.W. 6- Naresh Singh, none have claimed to
be the direct eye witness to the incidence. Their testimony suffers from
vital contradictions and lacks the quality so as to serve as basis for
conviction. It is further argued that testimony of P.W. 6 cannot be
relied, as P.W. 8 has not referred to his presence at the place of
occurrence at the time of the incidence. P.W. 8 was not treated for his
injuries and therefore, there is no cogent evidence to support that P.W.
8 had actually seen the occurrence.
7. Learned A.P.P. has defended the judgment of conviction and
sentence.
FINDING
8. Deceased- Awadhesh Singh died a homicidal death, is not in
doubt. Autopsy Surgeon (P.W. 2) noted as many as ten external ante-
mortem injuries on the dead body. Post-mortem examination gives an
impression of indiscriminate assault by a sharp cutting weapon. The
injuries were on the vital parts of the body including that on forehead,
eyen and ear. Doctor opined that injuries were caused both by sharp
cutting weapons such as Garasa and Farsa and by hard and blunt
substance such as lathi.
9. With regard to author of crime, as per the FIR, the eye witness to
the incidence was Naresh Singh and others and the person who had
informed the informant about the incidence, was Vijay Singh who was
drenched with blood at the time of the incidence.
10. Naresh Singh (P.W. 6) has deposed that incidence took place at
around 5:30 to 6:00 O' clock in the evening when Hulla took place near
the house of Jagdish. He has further deposed that persons assaulting
the deceased were Bailash, Sidheswar, Chaturgun, and Bhagwat.
Bailash was having Garasa in his hand and others were having lathi.
Bailash led the assault and on being hit, deceased fell down after injury
on his head, others also assaulted him, but they thereafter, fled away. It
has been further deposed by him that Vijay Singh was assaulted by
Kailash and his brother Bailash with lathi. Witness has identified both
Bailash and Kailash in dock. This witness was not assaulted by the
accused persons as deposed in para 7.
11. It is argued by the learned counsel on behalf of appellants that
the evidence of Vijay Singh (P.W. 8) that he was also injured in the
incidence, is not corroborated by any medical evidence.
12. Vijay Singh (P.W. 8), who is said to be injured eye witness, in his
testimony has not named P.W. 6 to be present at the time of
occurrence. This cannot be a ground to discard the testimony of P.W. 6
as no question was put to him regarding the presence of PW. 6. Mere
omission to name him cannot be a ground to infer his absence from the
place of occurrence. His presence is vouched in the FIR itself, which is
the earliest version regarding the occurrence.
13. P.W. 8 has deposed that the incidence took place 9-10 years ago
in the evening. Awadhesh Singh had been invited to a party in the
house of Prita Kumhar. Meat and liquor were offered in the party.
Bailash Mahato took meat from his plate as a result, Awadhesh Singh
left the party and others also followed him. They started returning
with Awadhesh Singh and when they reached near the house of
Jagdish Singh, this witness and Awadhesh Singh were intercepted by
the accused persons. Thereafter, Bailash Mahato inflicted repeated
Garasa blows over his head and other accused persons namely Lallu
Mahto, Bhagat @ Bhagwat Mahato, Kailash Mahato, Sidheshwar
Mahato and Chaturgun Mahato also assaulted him.
14. He (P.W. 8) has admitted in the cross-examination at para 4 that a
report of assault had been lodged by Bailash with regard to theft of a
diesel pump against him and Awadhesh Singh. It has however been
contended that the said case was a false case. In para 5, P.W. 8 has
deposed that a Panchayat was convened day before the incidence
which continued from 8 O' clock in the morning till 6 O' clock in the
evening, thereafter, the party was organized. This witness left the party
after Bailash had taken the piece of chicken from the plate of
Awadhesh Singh. They had moved only about 10 steps when the
incidence took place. This witness also defended himself by his lathi
when the accused persons started assaulting them.
15. P.W. 6 Naresh Singh has deposed in para 5 of the cross-
examination that at the time of incidence, he was at a distance of 10
steps from Vijay Singh. He has also stated that Vijay Singh was also
assaulted by the accused persons. In para 6, he deposed that he saw the
accused persons assaulting the deceased. It has been deposed that
Awadhesh Singh was assaulted by Garasa and lathi.
16. The main witness, who can be accepted as direct eye witness to
the occurrence, is P.W. 8- Vijay Singh, who was the person who
informed the informant about the incidence. Merely because he did not
sustain any injury in the incidence and made good his escape, cannot
be a ground to discard his testimony which has otherwise stood the
test of cross-examination. He has candidly admitted in para 4 of his
cross-examination that there was allegation, albeit false, that deceased
had committed theft of diesel pump which was the genesis of
occurrence. A Panchayti was also held in this regard on the very same
day of the incidence regarding it. As per his testimony, in para 2, it was
Bailash who inflicted Garasa blow to the deceased all over his body. He
further adds in para 3 that Bailash and other accused persons namely
Kailash, Lallu and Bhagwat Mahato assaulted this witness with lathi as
a result he fled away. What is significant to note is that allegation of
assault to the deceased is against Bailash Mahato with Garasa whereas
the allegation of assault against others, are general and omnibus and
they have not even been named in para 2.
17. What can be safely inferred from the testimony of this witness is
that it was Bailash Mahato, who was the principal accused who
inflicted Garasa blow to the deceased. His testimony is corroborated by
the post-mortem examination report in which most of the injuries
(injury nos.1-5, 7 and 8) were found to be incised wounds. The
deceased had also suffered some lacerated wounds which can also be
caused by the reverse side of the Garasa. P.W. 8 has himself deposed in
para 3 that he had been assaulted with lathi by Bailash and others.
Meaning thereby, that Bailash Mahato, apart from inflicting Garasa
blow, had also used lathi in the assault which resulted in a lacerated
wound which is injury no.6 over the deceased.
18. There is no evidence of a pre-meditated assault and the incidence
appears to have taken place because of the theft of pump set, followed
by a minor dispute at the time of the dinner party. The allegation of
assault against Bailash Mahato is direct, and that against the other
appellants, it is general and omnibus in nature. In order to hold the
other appellants constructively liable for the act of Bailash Mahato with
the aid of Section 34 of the IPC, the following two conditions are
necessary to be fulfilled: -
A. There must be common intention to commit a criminal act and;
B. There must be participation of all the persons in doing of such act
in furtherance of that common intention.
Common intention should be anterior in time to the commission
of the crime showing a pre-arranged plan and prior concert, and
though it is difficult in most cases to prove the intention of the
individual, it has to be inferred from the act or conduct or other
relevant circumstances of the case. This inference can be drawn by the
manner in which the accused persons arrived on the scene and
launched the attack, and the nature of injuries caused. Pre-arranged
plan may develop on spot during the course of commission of offence,
but the crucial circumstance is that the said plan must precede the act
constituting the offence (see Krishna Govind Patil Vs. State of
Maharashtra, AIR 1963 SC 1413).
19. In the present case, as discussed in the foregoing paragraphs,
evidence does not reflect a preconcert plan from which an inference
can be drawn that appellants namely Lallu Mahto, Bhagat @ Bhagwat
Mahato, Kailash Mahato, Sidheshwar Mahato and Chaturgun Mahato
acted in pre-concert in the criminal act of Bailash Mahato in causing
the death of Awadhesh Singh. They cannot be held constructively
liable with the aid of Section 34 of the IPC. Thus, in the facts and
circumstance of the present case Section 34 of the IPC cannot be
pressed into service to hold the other co-accused of Bailash Mahato to
be constructively liable for the offence.
20. In the result, the judgment of conviction and order of sentence
passed against Bailash Mahato, is affirmed and the appeal on his
behalf stands dismissed. He is on bail. His bail bonds stand cancelled
and he is directed to surrender before Court concerned forthwith.
21. Judgment of conviction and sentence passed against appellants
namely Lallu Mahto, Bhagat @ Bhagwat Mahato, Kailash Mahato,
Sidheshwar Mahato and Chaturgun Mahato, is set aside, and the
appeal preferred on their behalf is allowed.
Criminal Appeal is partly allowed.
Appellants namely Lallu Mahto, Bhagat @ Bhagwat Mahato,
Kailash Mahato, Sidheshwar Mahato and Chaturgun Mahato are on
bail. Their sureties stand discharged from liability of their bail bonds.
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
