Jharkhand High Court
Arun Mahto vs The State Of Jharkhand on 23 January, 2025
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 254 of 2002
.........
(Against the judgment of conviction dated 28.05.2002 and order of
sentence dated 29.05.2002 passed by learned Special Judge, SC/ST
(Prevention of Atrocities) Act, Hazaribag in Sessions Trial No.260 of
1994). .........
1.Arun Mahto, S/o Late Badho Mahto, R/o Village Karukhap P.S.-
Mandu, District- Hazaribagh
2.Lal Mohan Mahto, S/o Shibtahal Mahto, R/o Village Chotki Basidih,
P.S. Mandu, Dist.- Hazaribagh ..... Appellants
Versus
The State of Jharkhand .... Respondent
.........
For the Appellants : Mr. Hemant Kumar Shikarwar, Advocate
For the State : Mr. Manoj Kumar Mishra, AddI. Public Prosecutor
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PRESENT
Sri Ananda Sen, J.
Sri Gautam Kumar Choudhary, J.
JUDGMENT
CAV On 12.11.2024 Pronounced On 23/01/2025 Per Ananda Sen, J.:
The instant criminal appeal is directed against the judgment
of conviction dated 28.05.2002 and order of sentence dated
29.05.2002 passed by learned Special Judge, SC/ST (Prevention of
Atrocities) Act, Hazaribagh in Sessions Trial No.260 of 1994,
whereby the appellant No.1 has been convicted under Sections
302/109 of the Indian Penal Code and appellant No.2 has been
convicted under Section 302 of the Indian Penal Code and both
have been sentenced to undergo rigorous imprisonment for life.
2. Challenging the judgment, learned counsel appearing on
behalf of the appellants submitted that no independent witness
has been examined in this case and the witness who are examined
are highly interested witness and related to the deceased. He
further submitted that as it was dark at the time of occurrence,
the witnesses could have not identified the appellants. The place
of occurrence has also not been proved by the prosecution. He
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further submitted that no plausible explanation was given
regarding delay in lodging the F.I.R. and sending the same to the
Court. On these grounds, learned counsel for the appellants prays
for acquittal.
3. Learned counsel for the State submitted that the witnesses
examined by the prosecution have fully supported the case of the
prosecution. It is their case that the appellants have participated
in the alleged commission of offence, thus, this appeal needs to be
dismissed.
4. The prosecution case is based on the fardbeyan (Exhibit-5) of
the informant- Dhokhar Ram (P.W.-15). He stated that his son
Mahabir Ram a member of Scheduled Caste was in love with
Malti Kumari and both intended to marry each other and even
after being cautioned by the informant to father of the girl, they
continued their affair and on 23.05.1994, Malti Kumari escaped
from the Village with Mahabir Ram and both married at Rajrappa
Temple and started their conjugal life, concealing themselves.
However, Puran Mahto father of Malti Kumari along with other
villagers traced them. Panchayat was convened at village in the
garden situated near the house of Feko Mahto at Village
Hindegarha. The villagers who had gone to bring the couple back
to the village returned to the village and reached the panchayat
meeting on 31.05.1994 at about 9.00 P.M. where both the couples
were being questioned about the kidnapping /abduction and
thereafter Arun Mahto instigated the assembled people to
commit murder of Mahabir Ram. On such instigation people of
Mahto community attending the meeting started assaulting
Mahabir Ram by means of lathi, fists and boulders and
committed his murder. Harijan people who assembled there in
the panchayati started fleeing away from there but the people of
Mahto community caught hold of Ganesh Rabidas and Lakhan
Rabidas and assaulted him. Thereafter some members of Mahto
community entered in the Harijan locality to trace out the
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Harijans, but they hid themselves. The members of the Mahto
community surrounded the Harijan basti thus, people of Harijan
community could not come out and only on arrival of the police
at the village, they came out and the informant got his statement
recorded by the police.
5. On the aforesaid fardbeyan, Mandu P.S. Case No.139 of 1994
was registered under Sections 341/342/323/325/
448/302/34/120(B) of the Indian Penal Code. The police after
investigation filed chargesheet against the appellants.
6. Thereafter the Court took cognizance and committed the case
to the Court of Sessions. As the appellants pleaded not guilty,
thus, charge was framed against appellant No.1 under Sections
302/109 and 323 of the Indian Penal Code and appellant No.2
under Sections 147, 302, 323 and 120(B) of the Indian Penal Code.
Further, both the appellants were also charged under Sections
3(1-X) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act.
7. Altogether seventeen witnesses have been examined in this
case, who are as follows:-
P.W.-1, Ganesh Ram stated that there was love affair between
Mahabir and Malti. On 25.05.1994, some people of Mahto
community came to his house and took him to a meeting where
many other persons were also present. In the said meeting people
of Mahto community asked Dhaneshwar Ram and Puran Mahto
to bring five thousand rupees each which they brought and
thereafter they left in search of the boy and the girl and came
back on 30.05.1994 in the evening. Thereafter, people of Mahto
community surrounded the village who were armed with lathi
and danda and taken him and others to the meeting, assaulting. In
the meeting, the Mahto community people on being instigated by
Arun Mahto started assaulting Mahabir Mahto and others. He
stated that on seeing that he and others tried to rescue him but all
in vain. They were assaulted in this process. Lal Mohan Mahto3
struck Mahabir Mahto with a heavy rock due to which he died on
the spot.
P.W.-2 Phuleshwar Rabidas, P.W.-3 Rajkumar Das, P.W.-4
Baleshwar Ram, P.W.-5 Lakhan Ram, P.W.-6 Rajendra Ram, P.W.-
7 Sahdeo Ram, P.W.-9 Dhaneshwar Ram, P.W.-10 Rajkumar Ram,
P.W.-13 Jagdish Ram and P.W.-14 Murari Ram have stated in the
similar line.
P.W.-8 Lacchu Ram has been declared hostile.
P.W.-11 Dr. Sagar Tirkey examined the injured P.W.-1 and
found the following injuries:-
(i) One bruise 6″ long x 1″ broad on the right side on the back, going to shoulder.
(ii) On horizontal bruise on the right side on the back 5″x 1″”.
(iii) On the left side of the back one bruise 5″x 1″.
Doctor opined that the aforesaid injuries are simple in nature
caused by hard and blunt substance likely to be lathi or danda. The
injury report has been marked as Exhibit-3.
He also examined P.W.-5 another injured and found the
following injuries:-
(i) On the chest, horizontal bruise 6″x 1″.
(ii)Left cheek swollen
(iii) On the right back, one bruise 6″x1″.
(iv)On the left back, one bruise 3″x 1″.
He opined that the aforesaid injuries are simple and caused
by hard and blunt substance like lathi, danda and fists and slap.
The injury report has been marked as Exhibit-3/1.
P.W.-12 Dr. Ram Chandra Prasad is the Doctor who has
examined Sahdeo Rabidas and found the following injuries:-
“(i) One bruise 1/2″x 1/4” on the forehead, right side over the eye.
He opined that the injury is simple caused by hard and blunt
substance may be by lathi or danda. The injury report has been
marked as Exhibit-3/2.
P.W.-15 Dhokar Ram is the informant and the father of the
deceased. He stated that there was love affair between Mahabir
and Malti, information of which reached the people of the village.
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On 23.05.1994 both of them fled. On receiving the information, the
people gathered in the youth club and asked his elder son to bring
Rs.5,000/- for searching them which was provided by him. On
30.05.1994, they returned and the people of Mahto community
surrounded the village and started assaulting people of Harijan
community and gathered them in the garden of Feku Mahto. In
the same night, they caught Mahabir and Malti and took them to
the garden where Arun Mahto and others instigated the people of
Mahto community to kill Mahabir upon which, they started
assaulting him and Lal Mohan Mahto struck Mahabir Mahto with
a heavy rock due to which he died on the spot.
P.W.-16 is the Doctor, who conducted the postmortem
examination of the deceased and found the following antemortem
injuries:-
“(i) Whole face contains dried blood smear.
(ii) Face is bruised and abrasion
(iii) Lacerated wound on forehead right side 1″x1/4″x bond deep.
(iv)Bleeding coming from both ears.
(v) Abrasion at left ear 2″x 1″ abrasion right ear 2″x1 ½”
(vi)Upper and lower two incisor teeth fractured
(vii)Lacerated wound at the back of the right ear 1″x ½” brain deep.
(viii) Both eyeballs swollen and congested.
Internal Examination:-
(i)Fracture of maxillary bone
(ii) Fracture of nasal bone blood clots.
(iii)Blood clot present at right occipital part of brain and frontal part of
brain
(iv)Chest ribs intact and normal
(v)Both lungs intact and pale
(vi)Heart. Right chamber contains blood clot and left chamber empty
(vii)Liver, spleen, kidney all intact and pale.
(viii)Stomach contained muco-fluid 4 ouns, wall normal.
(ix) Bladder empty.
He opined that the cause of death is hemorrhage due to above
mentioned injuries cause by hard and blunt substance. The
postmortem report was marked as Exhibit-4.
P.W.-17 is the Investigating Officer who stated that on
01.06.1994, he got an information about murder of a Scheduled
Caste person in village Hindegarha, upon which he and other
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police officials went to the place of occurrence and recorded the
fardbeyan of the informant and took up the investigation himself.
He prepared the inquest report, which was marked as Exhibit-6
and the dead body was sent for the postmortem examination. He
also proved the seizure list which was marked as Exhibit-7. He
recorded the restatement and statement of other witnesses and
finally after investigation submitted the chargesheet.
8. The following documentary evidences were also exhibited by
the prosecution:-
Exhibit-1 Signature seizure production list.
Exhibit-2 Panchnama
Exhibit-1/1 Signature on seizure list
Exhibit- 3, 3/1 & 3/2 Inquiry report
Exhibit 1/2 & 1/3 Signature on inquest report
Exhibit-4 Postmortem report
Exhibit-5 fardbeyan
Exhibit-6 Inquest report
Exhibit-7 seizure list
Exhibit-8 & 9 Production list-cum-seizure list
Exhibit-10 photo
9. After hearing the parties, we find that this appeal is at the
instance of two persons, namely, Arun Mahto and Lal Mohan
Mahto. P.W.1 has stated that it is Lal Mohan Mahto who with a
bolder struck on the head of the deceased, as a result of which the
deceased succumbed to the injuries. P.W.-2 also stated that it is
Lal Mohan Mahto, who struck Mahabir Ram, the deceased with
heavy rock on his head, as a result of which, he died. Similar
statement has been given by P.W.-4, P.W.-5, P.W.-7, P.W.-9, P.W.-
10 and P.W.-13 stating that Lal Mohan Mahto, with a bolder
thrashed the deceased on his head. Presence of these witnesses at
the place of occurrence cannot be doubted, in view of their
consistency. Further Ganesh Rabidas, Lakhan Rabidas and
Sahdeo Ram are the injured witnesses. The fact of their injuries is
substantiated from the evidence of P.W.-11 and P.W.-12, who are
the Doctors, who had treated them. Injuries prove their presence
at the place of occurrence.
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10. The Hon’ble Supreme Court in the case of Jodhan v. State of
M.P., reported in (2015) 11 SCC 52 has held that the evidence of
the injured witness should be kept at higher pedestal than other
witnesses. Para 28 of the said judgment is as follows:-
“28. Tested on the backdrop of the aforesaid enunciation of law, we are unable
to accept the submission of the learned counsel for the appellant that the High
Court has fallen into error by placing reliance on the evidence of the said
prosecution witnesses. The submission that when other witnesses have
turned hostile, the version of these witnesses also should have been
discredited does not commend acceptance, for there is no rule of evidence that
the testimony of the interested witnesses is to be rejected solely because other
independent witnesses who have been cited by the prosecution have turned
hostile. Additionally, we may note with profit that these witnesses had
sustained injuries and their evidence as we find is cogent and reliable. A
testimony of an injured witness stands on a higher pedestal than other
witnesses. In Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P.,
(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] , it has been observed that:
(SCC p. 271, para 28)
“28. The question of the weight to be attached to the evidence of a witness
that was himself injured in the course of the occurrence has been extensively
discussed by this Court. Where a witness to the occurrence has himself been
injured in the incident, the testimony of such a witness is generally
considered to be very reliable, as he is a witness that comes with a built-in
guarantee of his presence at the scene of the crime and is unlikely to spare his
actual assailant(s) in order to falsely implicate someone.”
It has been also reiterated that convincing evidence is required to discredit an
injured witness. Be it stated, the opinion was expressed by placing reliance
upon Ramlagan Singh v. State of Bihar [Ramlagan Singh v. State of Bihar,
(1973) 3 SCC 881 : 1973 SCC (Cri) 563] , Malkhan Singh v. State of
U.P. [Malkhan Singh v. State of U.P., (1975) 3 SCC 311 : 1974 SCC (Cri)
919] , Vishnu v. State of Rajasthan [Vishnu v. State of Rajasthan, (2009) 10
SCC 477 : (2010) 1 SCC (Cri) 302] , Balraje v. State of
Maharashtra [Balraje v. State of Maharashtra, (2010) 6 SCC 673 : (2010) 3
SCC (Cri) 211] and Jarnail Singh v. State of Punjab [Jarnail Singh v. State
of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] .”
11. The injuries on these witnesses suggest that they were
present at the place of occurrence and they had seen the
occurrence. Thus, there is no doubt about their presence at the
place of occurrence. These witnesses consistently stated that it is
the appellant No.2, who with the bolder had smashed the head of
the deceased.
P.W.-16 is the Doctor, who found several injuries on the head
of the deceased. Injury Nos.1 to 8 which are external, are all on the
head. The Doctor also opined that the said injury was inflicted by
hard and blunt substance. The evidence of these witnesses, who
had seen the occurrence, is corroborated by the medical evidence
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and the postmortem report. Thus, we find that prosecution has
proved beyond reasonable doubt, the involvement of appellant
No.2 in commission of murder of the deceased by assaulting him
with bolder. Judgment of conviction and sentence against
appellant No.2 is accordingly affirmed.
12. So far as appellant No.1 is concerned, as per the prosecution
case he was not the assailant, but has been put on trial for abetting
the offence. P.W.-1, P.W.-7, P.W.-10, P.W.-13 and P.W.-15 have
stated that it was on his instigation the entire occurrence had
taken place. It has been consistently deposed to by the witnesses
that it was appellant No.2, who had given the fatal blow with a
piece of stone. It has also come in their account that Appellant
No.1 had also physically assaulted the deceased with fists and
slap. Appellant No.1 has not been charged under Sections 302/34
of the IPC, but is charged for offence under Sections 302/109 of
the IPC and Section 323 of the IPC.
13. Ingredient of the offence of abetment and of constructive
liability under Section 34 of IPC is very different. While in the case
of Section 34 IPC, presence and participation in the offence while
committing an act in the furtherance of common intention is
necessary, for Section 109 of the IPC presence at the place of
occurrence is not required. If the abettor is present at the place of
occurrence Section 114 of the IPC and not Section 109 of IPC shall
apply.
14. As per Section 107 of the Indian Penal Code, a person abets
doing of a thing, if he instigates, engages or intentionally aids any
person to do that thing.
Section 107 of IPC defines abetment:-
“107. Abetment of a thing.–A person abets the doing of a thing,
who–
First.–Instigates any person to do that thing; or
Secondly.–Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to the doing of that
thing; or8
Thirdly.–Intentionally aids, by any act or illegal omission, the doing of
that thing.
Explanation 1.–A person who, by wilful misrepresentation, or by wilful
concealment of a material fact which he is bound to disclose, voluntarily
causes or procures, or attempts to cause or procure, a thing to be done, is
said to instigate the doing of that thing.
Explanation 2.–Whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate the commission
of that act, and thereby facilitates the commission thereof, is said to aid
the doing of that act.”
Section 114 of IPC deals with a situation when the abettor is
present during the commission of the offence.
Section 114. Abettor present when the offence is committed–
“Whenever any person, who is absent would be liable to be punished
as an abettor, is present when the act or offence for which he would
be punishable in consequence of the abetment is committed, he shall
be deemed to have committed such act or offence.”
The Hon’ble Supreme Court in the case of Mukati Prasad
Rai @ Mukti Rai and Others Vs. State of Bihar (now Jharkhand),
reported in (2004) 13 SCC 144, held that where the two appellants
armed with lathis entered into the house and instigated other to
beat the deceased and his son, it would be safe and appropriate to
convict the two appellants under Section 324 r/w 114 of the IPC.
15. In this case, there is consistent evidence that appellant No.1
instigated the appellant No.2 to kill the deceased, pursuant
thereto appellant No.2 with a bolder struck on the head of the
deceased, resulting in his death. Absence of charge under Section
34 or Section 114 of IPC is a serious infirmity which should be
deemed to have caused prejudice to the appellant No.1. In view of
the absence of charge under Section 114 of the IPC, conviction
under Section 302/109 IPC is not sustainable and is accordingly
set aside. His conviction under Section 323 of the IPC is however
upheld. On the point of sentence considering the age, antecedent
and overall facts and circumstance of the case appellant No.1 is
sentenced to the period already undergone.
16. With this modification in finding and sentence, Criminal
Appeal qua appellant No.1 (Arun Mahto) is partly allowed with
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modification of finding and sentence. Further, Criminal Appeal
qua appellant No.2 (Lal Mohan Mahto) stands dismissed.
17. As appellant No.1 is on bail, he and his bailors are
discharged from the liabilities of the bail bonds.
18. Let the Trial Court record be transmitted to the Court
concerned along with a copy of this judgment.
(Ananda Sen, J.)
Gautam Kumar Choudhary, J: I agree.
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated 23/01/2025
NAFR /R.S./ Cp 03.
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