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Mahto Vs. State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1978CriLJ1149; 1978MPLJ599
AppellantMahto
RespondentState of Madhya Pradesh
Cases ReferredGhunnai v. Emperor
Excerpt:
.....of appellant is liable to be set aside. - 13) is a wholly reliable witness and we accept his evidence which established that the deceased chhando was lying in a pool of blood with injuries on his person and the appellant was standing near the deceased with an axe in his hand and had threatened him against any kind of shouts. 9. the conviction of the appellant can be based on the single testimony of a witness provided he is reliable. the indian legislature has not insisted on laying down any such exceptions to the general rule recognised in section 134, which by laying down that 'no particular number of witnesses shall, in any case, be required for the proof of any fact' has enshrined the well recognised maxim that 'evidence has to be weighed and not accounted. if such a testimony..........the same house along with other family members including the deceased. nanhu (p. w. 13) killed his father. nanhu dishonoured his mother which enraged his father, as a result of which nanhu (p. w. 13) killed him with an axe. before the sessions court, the appellant admitted that he, the deceased and others lived together and that marriage of gangi (p. w. 3) was settled with gawal. he also admitted that the deceased was addicted to drinking but denied that he had disposed of land without their consent. he admitted the presence of nanhu (p. w. 13) on the relevant night. he denied that he had either assaulted the deceased or attacked him with an axe. he denied that he had gone to chowkidar or had made any extra-judicial confession to him. he denied the seizures from him. he stated that.....
Judgment:

N.C. Dwivedi, J.

1. In this appeal, the appellant Mahto has challenged his conviction under Section 302 of the Penal Code for which he was sentenced to undergo imprisonment for life.

2. The prosecution case is this. The deceased Chhando was the husband of the acquitted accused Mst. Nanki and father of the appellant and the acquitted accused Gawal. Pyaribai (P. W. 2) is their daughter. Gangi (P. W. 3) was engaged to Gawal and lived with the deceased. The deceased had agricultural land belonging to the joint family. He developed drinking habits and used to dispose of his land for meeting drinking expenses. The appellant and other members of the family were greatly annoyed with him. Between the intervening night of 19th and 20th June, 1971 the family members slept together with the deceased in one room. In the early hours of the morning, the appellant attacked Chhando with a sharp edge of an axe. Pyaribai (P. W. 2), Gangi (P W. 3) and Nanhu (P. W. 13) woke up on hearing shrieks when they saw the appellant standing with an axe in his hand and Chhando lying in a pool of blood. The appellant and the acquitted accused Gawal went to Chowkidar Mahatoram (P. W. 4) and informed him admitting that they had killed their father. The Chowkidar collected village people who questioned the appellant who, before them, admitted to have killed his father. Dasarai (P. W. 1) went to the police-station and lodged the first information report (Ex. P-1) at 2 p. m. on June 20, 1971.

3. An inquest was held over the dead body of Chhando as per Panchanama, Ex. P-6. Dr. I. D. Gupta (P. W. 19) performed the post-mortem examination and as per report (Ex. P-17} found the following marks of injuries on the person of the deceased:

(i) Incised wound on neck below thyroid cartilage between the medial end of two clavical bones size 2' x 1/2' x 2'. The wound was opened and trachea and oesophagus pipe were seen cut. Trachea was cut into two parts. Oesophagus cut in front part 1/4' x 1/6'.

(ii) Incised wound 2 1/2' x 2 1/2' x 1 1/2' on the left side of neck by the side of thyroid cartilage. Part of trachea was cut, size |' x 1/6'.

(iii) Incised wound 2' x 1/2' x 1' above the thyroid cartilage. Trachea and oesophagus were cut. Trachea and oesophagus including soft tissues under trachea and oesophagus were also cut but bones were escaped. Trachea and oesophagus were separated.

(iv) Incised wound 2'x 1/2'x 1 1/2' on forehead' at the right eye-brow. Dr. Gupta stated that the injuries were ante-mortem in the nature and were caused by a sharp cutting object. They were sufficient in the ordinary course of nature to cause death.

4. On the memorandum of the appellant Mahto (Ex. P-7), an axe was seized from him as per seizure memo (Ex. P-8). A chadar (Art. 2) was seized from the appellant as per seizure memo, Ex. P-10. The report of the Chemical Examiner (Ex. P-19) shows that the chadar and the axe seized from the appellant, dhoti and lungi of the deceased and the earth seized from the spot were stained with blood. The report of the serologist (Ex. P. 20) shows that the chadar and the axe seized from the appellant were stained with human blood. The dothi and lungi of the deceased were also stained with human blood. The blood stains on the earth seized from the spot were disintegrated and their origin could not be determined.

5. The appellant in the committal court admitted that he was sleeping in the same house along with other family members including the deceased. Nanhu (P. W. 13) killed his father. Nanhu dishonoured his mother which enraged his father, as a result of which Nanhu (P. W. 13) killed him with an axe. Before the Sessions Court, the appellant admitted that he, the deceased and others lived together and that marriage of Gangi (P. W. 3) was settled with Gawal. He also admitted that the deceased was addicted to drinking but denied that he had disposed of land without their consent. He admitted the presence of Nanhu (P. W. 13) on the relevant night. He denied that he had either assaulted the deceased or attacked him with an axe. He denied that he had gone to chowkidar or had made any extra-judicial confession to him. He denied the seizures from him. He stated that Chowkidar Mahatoram (P. W. 4) has falsely implicated him.

6. From the record as also from the statement of the appellant, it is admitted position that Chhando is dead and that he died of axe injuries. The point for consideration is whether it was the appellant or Nanhu (P. W. 13) who killed the deceased. It will be pertinent to mention here that though the appellant named Nanhu as the assailant of his father in the committal Court, he did not repeat the same before the Sessions Court. We will, however, scrutinize the prosecution evidence to find out as to who is the real culprit.

7. The presence of Nanhu (P. W. 13) is the admitted position on the relevant night in the house in which the deceased was killed. Nanhu was sleeping in another room. With a partition on the other side, the deceased and his family members were sleeping. Nanhu woke up on the cries of Nanki and went to the room where the deceased and his family members were sleeping. He saw the appellant standing with an axe in his hand and the deceased lying in a pool of blood. He was frank enough to admit that he had not seen the actual assault. The appellant threatened him against raising any kind of shouts. Thereafter, in the early morning the appellant and Gawal went to Chowkidar Mahatoram (P. W. 4) and he himself came back to his village. In his cross-examination, there is no infirmity. His slipping away without talking to any village people is explainable on the ground that the appellant had threatened him against raising shouts and consequently, he did not risk any kind of disclosure with this threat in the background.

8. Nanhu (P. W. 3) was a visitor to the house of Chhando, His evidence does not disclose any ill-will with the appellant. The defence that Nanhu misbehaved with the appellant's mother is not put to him and that he denied on oath that he had killed Chhando. There is no apparent reason why Nanhu will kill Chhando and would falsely implicate the appellant. On the perusal of his evidence, we are convinced that Nanhu (P. W. 13) is a wholly reliable witness and we accept his evidence which established that the deceased Chhando was lying in a pool of blood with injuries on his person and the appellant was standing near the deceased with an axe in his hand and had threatened him against any kind of shouts.

9. The conviction of the appellant can be based on the single testimony of a witness provided he is reliable. In this connection, the following observations in Vadivelu Thevar v. State of Madras : 1957CriLJ1000 are relevant:

The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognised in Section 134, which by laying down that 'no particular number of witnesses shall, in any case, be required for the proof of any fact' has enshrined the well recognised maxim that 'Evidence has to be weighed and not accounted.' It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.

10. We will, however, proceed to examine the other evidence and see if it lends corroboration to the evidence of Nanhu (P. W. 13).

11. Memorandum (Ex. P-7), dated June 21, 1971 shows that the appellant admitted to have concealed an axe in his house which he undertook to discover. In consequence of this information, a Tangi was seized from the appellant as per seizure memo, Ex P-8. This axe has been found to be stained with human blood. The appellant has offered no explanation how the human blood stained axe was found in his possession. From the appellant a Chadar (Art. 2) was seized. This Chadar was also found to be stained with human blood. The discovery of the human blood stained axe and the Chadar from the appellant, in the absence of any explanation from him, is another incriminating circumstance.

12. Dasarai (P. W. 1) is the person who lodged the first information report (Ex. P-1). He was informed by the village Kotwar Mahatoram (P. W. 4) and Darshansai (P. W. 8) that his brother Chhando was killed. He then testified to the extra-judicial confession made by the appellant Mahato in the presence of the secretary Metarram. The lower Court has rejected the extra-judicial confession made before the Panchayat Secretary because the secretary was not examined. We also omit this from consideration. The evidence of Dasarai (P. W. 1) only established that the deceased Chhando was killed in the night.

13. Pyaribai (P. W. 2) is the sister of the appellant Mahto. She stated that her mother was weeping and told her that somebody had killed her father. She admitted that her mother did not .name the assailant. Her evidence at least established that the contention of the appellant in the committal Court that Nanhu (P. W. 13) was assailant or had misbehaved with his mother is clearly false. Gangi (P. W. 3) was engaged with Gawal, She was also sleeping in the same house. She was declared hostile and was confronted with her case diary statement (Ex. P-2) which she disowned. She was apparently suppressing the truth because of her relation-ship with the family.

14. Mahatoram (P, W. 4) is the village Kotwar and stated that Mahato informed him that he had killed his father and this was repeated by the acquitted accused Gawal. He denied the suggestion that the appellant told him that some unknown assailant had killed his father, Village chowkidar is an independent witness and the extra-judicial confession made to him voluntarily can be relied upon.

15. Darshan (P. W. 8) stated that he had questioned the appellant who admitted before him that he had killed his father with a Tangi and at that time the appellant was armed with an axe. He is the Panch of the Gram Panchayat and, therefore, extra-judicial confession made on his questioning will be admissible and can be acted upon. The presence of chowkidar at this time will not make the extra-judicial confession inadmissible because it was not made to him but was made in his presence. There is evidence that the deceased was addicted to drinking and was disposing of the property belonging to the joint family.

16. Rupsai (P. W. 7) has turned hostile. It was alleged that the deceased was going to transfer some land by registered deed. He was confronted with his case diary statement (Ex. P-11) which he disowned. Though the other prosecution witnesses disclosed that the deceased as disposing of his property with the consent of his sons; yet it is apparent that the disposal of the property belonging to the joint family for drinking purposes was not a happy affair and must have been disliked by the sons. Thus, there is evidence of motive. Even if there is lack of proof of motive, that will not adversely affect the prosecution provided it connected the appellant with the murder of the deceased. We have accepted the evidence of Nanhu (P. W. 13) as also the evidence of extra-judicial confession and the recovery of human bloodstains and the chadar. We find that this is sufficient to connect the appellant with the offence of murder.

17. Shri P. S. Nair, however, contended that the village chowkidar is a police officer and the extra-judicial confession made to him would be inadmissible in evidence. He relied upon Birja v. Emperor AIR 1941 Oudh 563 : 42 Cri LJ 749; Deokinandan v. Emperor AIR 1936 All 753 : 38 Cri LJ 40 (FB). However, in Ghunnai v. Emperor AIR 1934 All 132 : 35 Cri LJ 448 it is held that a confession to a chowkidar is not a confession to a policeman within the meaning of Section 25 of the Evidence Act. It is further held that even if a policeman happens to be a member of a crowd of village and a confession was made to the villagers at large, the mere fact that a policeman happened to be present in the crowd would not make the confession inadmissible in evidence. We are, however, of the view that the village chowkidar is not a police officer though he may be performing certain functions which are performed by the police. Provisions of the Madhya Pradesh Land Revenue Code make this position clear. Under Section 230 of the Code, Kotwars are appointed in accordance with the rules under Sections 230 and 231. The appointment of Kotwar shall rest with the Collector, Sub-Divisional Officer, Assistant Collector of the first grade, Assistant Collector of the second grade if specially empowered by the Collector in this behalf. Under Section 231, the Collector shall fix the remuneration of the Kotwars in accordance with rules as may be made under Section 258. Sections 230 and 231, therefore show that the Kotwars are appointed by the Revenue Officers and their duties are also prescribed under the rules. In view of this, it is apparent that a village chowkidar could not be termed as a police officer and any extra-judicial confession made to him voluntarily could not be held to be inadmissible. Further, the extra-judicial confession made to Darshan (P. W. 8) cannot on any count be held to be inadmissible simply because the chowkidar was present there.

18. We are, therefore, of the view that the evidence of Nanhu (P. W. 13), the extra-judicial confession made by the appellant, the recovery of human bloodstained axe and the chadar (Article 2) from the appellant and the false explanation given by him imputing the murder to Nanhu (P. W. 13) taken together conclusively establish that the appellant was the murderer of his father.

19. The evidence of Dr. I. D. Gupta (P. W. 19) shows the presence of four incised wounds and the serious damage, done to the internal organs. Trachea and oesophagus pipe were cut. Trachea was cut into two parts. The injuries were situated on vital part like neck with serious damage. These injuries could be caused by a weapon like an axe and this lends further corroboration to the prosecution version. These injuries were sufficient in the ordinary course of nature to cause death. Thus, the appellant selected a dangerous weapon like an axe and attacked the sleeping father with sufficient force causing injuries to the vital organs which were sufficient in the ordinary course of nature to cause death. Thus, the intent to kill his father is amply established. In view of the above, the appellant was rightly convicted under Section 302 of the Penal Code and rightly sentenced to imprisonment for life. We find no ground to interfere with the decision of the Court below.

20. For the reasons given above, the appeal of the appellant Mahto fails and is hereby dismissed. His conviction under Section 302 of the Penal Code and the sentence of life imprisonment awarded to him are confirmed.


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