1 CRIMINAL APPEAL(SJ) NO. 639 OF2003Against the judgment of conviction dated 23.09.2002 and order of sentence dated 25.09.2002 passed in Sessions Trial No. 286 of 2001 by Shri M.L. Chaudhary, District and Sessions Judge, Latehar Rajendra Mahto, son of Nema Mahto, resident of village, Bokaria, P.S. Manika, District-Latehar .......Appellant Vs. The State of Jharkhand ........Respondent For the Appellant : Mr. Rakesh Kumar, Advocate For the Respondent : Mr. Awnish Shankar, APP PRESENT HON'BLE MR. JUSTICE RATNAKER BHENGRA C.A.V. ON0407.2016 DELIVERED ON / /2016 Ratnaker Bhengra,J : The present appeal is directed against the judgment of conviction dated 23.09.2002 and order of sentence dated 25.9.2002 passed by Shri M.L. Chaudhary, District and Sessions Judge, Latehar in Sessions Trial No. 286 of 2001 whereby and whereunder the appellant as been convicted for the offence punishable under section 304 Part II of the Indian Penal Code and sentenced to undergo Rigorous imprisonment of five years.
2. The prosecution case as given by the informant Monarik Mahto ( P.W.
3) is that on 27.03.2001, his daughter Geeta Kumari was collecting Mahua from the share of land which belongs to his younger brother Rajendra Mahto for which Rajendra Mahto abused his wife and daughter. In the evening at around 7.00 p.m., when he came home, then he came to know about the abuses made against his wife and daughter from them. On this, he went to inquire from his brother then Rajendra Mahto, in abusive manner, came with tangi and tried to assault his wife Kalawati with tangi but unfortunately his son Ranjan Kumar, aged about 10 years, was hit behind his head and he was injured . At night itself with the help of village people, he was taken to Tumbagarh Hospital where he died. He has said that the assault was the result of the dispute pertaining to collection of Mahua due to which his son was murdered.
3. On the basis of the fardbayan, Manika P.S. Case No. 14 of 2001 was registered and after investigation, the police submitted charge sheet against the accused Rajendra Mahto under section 302 of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the court of sessions. Charge was framed against the accused under section 302 of the IPC and the accused pleaded not guilty and claimed to be tried. 2 4. The learned court below after considering the materials available on record convicted and sentenced the appellant as stated above , against that present appeal filed.
5. During the course of trial, the prosecution examined altogether 10 witnesses out of which P.W. 1 Binod Mahto, P.W. 2 Basant Mahto, P.W. 5 Dukhani Devi, P.W. 6 Gopal Sao have not supported the case of the prosecution and they have been declared hostile. P.W. 7 Brahmadeo Mahto, P.W. 8 Basudeo Mahto are the witnesses of the inquest report.. P.W. 9 Lal Mohar Ram is the investigating Officer who has submitted charge sheet after investigation. P.W. 10 is Dr. Surendra Kumar Singh, who has conducted the postmortem examination of the dead body of deceased.
6. P.W. 3 is the informant Munarik Mahto, he has deposed that the incident is about 14 months ago. When he returned from doing labour work he was informed that when his daughter had gone to collect Mahua, his brother had abused her . He has further deposed that his brother Rajendra Mahto came with tangi in the courtyard and attacked his wife Kalawati with an axe but it hit his son Ranjan who was with his wife. With the assistance of village people, he was taken to Tumbagarh Hospital on a jeep where doctor informed that his son Ranjan had died. He has further deposed that the doctor had told him to go to the police station where police took his statement. He has recognized his signature which has been marked as Ext.-1. He has deposed that he recognizes his brother Rajendra Mahto, who is in court. In his cross examination, he has said that 5 years before this incident, the dispute for collecting of Mahua was going on though there is no case or litigation in the matter. There are four Mahua threes and he is living separately from his brother from 20 years. Rajendra Mahto separated from his father from 10 years. From the four Mahua trees, collection of Mahua from three trees was made by his father and collection of Mahua from one tree was made by his uncle. He further deposed that his father had five brothers and there has been no partition amongst them and this is the cause of the dispute. He has further deposed that his father had died 5 years ago and after that partition had not taken place. After his father's death, both the brothers used to together collect the Mahua from the three trees. His other uncles and the son of one uncle also started making claims. He further deposed that Rajendra used to tell him that even his uncles have the right to Mahua. His uncle provoked Rajendra to fight with him. He further deposed that his uncles were there during the fight. Since it was night, it was not possible to see whether the uncles had any weapon with 3 them or not. The fight began at 6.45 p.m. and continued for 10 minutes , no village person was there. His uncle also could not be seen properly. His son was holding his wife and taking inside the house when the attempt to assault her with Axe was made then his wife and son started to scream. His uncle and Rajendra was sitting there, they did not run away. They stood there for 10 minutes. When his son was taken to the hospital, Rajendra and his uncles were standing there. His uncle Basant Mahto , cousin Vinod Mahto and Jayaram Mahto had gone to the hospital with him. His other uncles and Rajendra had not come to the hospital. No one had tried to apprehend Rajendra at the the place of occurrence. He has further deposed that till now the dispute regarding property has not ended. He deposed that around 50 persons was there on the spot but no one did anything to Rajendra.
7. P.W. 4 Kalawati Devi is the wife of informant. She has deposed that the incident is of one year ago and there was a fight with Rajendra Mahto regarding Mahua and Rajendra Mahto had run towards her with an axe to assault her, but her son Ranjan was beside her and the assault by the axe hit Ranjan on his head and her son fell down. She has deposed that villagers took the boy to Tumbagarh hospital on a jeep and her son died at Tumbagarh hospital. She has recognized Rajendra Mahto in Court. In her cross examination , she has said that Rajendra Mahto is her brother-in-law and partition had not taken place between them and regarding this there was dispute between her husband and her brother-in-law. She has deposed that their house are separate and they eat separately. She further deposed that Rajendra used to often talk about partition and on that date also there was a quarrel between two brothers. She has further deposed that the assault had taken place from the side of Rajendra and they had not initiated the same. She has also deposed that regarding this particular incident, Rajendra had also filed a case in the Court which is still going on. She has further deposed that during the fight villagers were there but they did not have any weapon with them. She has also deposed that the dispute between them continued from 7 p.m., for about one hour. After the incident, Rajendra ran away and when he was talking he was having an Axe in his hand. However, they were not afraid. She further deposed that due to it being dark, they could not see as to whether axe was in his hand or not. She has further deposed that during the assault, her son was 2 to 3 meter away from her and she was also holding a child who was still on milk. She further deposed that her son was hurt and after the assault, people ran away from the spot and she does not know whether remaining persons tried to catch hold of Rajendra or not. She has also deposed that she was also hurt on her forehead and little blood came out and that even the doctor had 4 examined her. Some blood was spilt on the clothes and on the ground. She has also deposed that police had taken blood stained soil but they did not take blood stained clothes. She has also deposed that they reached Tumbagarh at around 8 p.m., and Gopal Sao gave the jeep and Basant Mahto was also in jeep.
8. P.W. 6 Gopal Sao, has said that jeep belonged to him and it was driven to take the child to the hospital. He has , however, been declared hostile on the point of assault. P.W. 7 Brahamdeo Mahto and P.W. 8 Basudeo Mahto have not supported prosecution case. P.W. 9 Lal Mohan Ram is the I.O. of the case. He has also deposed that he had inspected the place of occurrence and he had seen the blood stained soil. He had taken evidence of witnesses and made the requisition for sending for postmortem examination. However, he did not make seizure list of the blood stained soil and he did not make the map of the place of occurrence.
9. P.W. 10 is Dr. Surendra Kumar Singh. He has deposed that on 28.08.2001 at 2.30 p.m., he conducted the postmortem examination of the dead body of Ranjan Kumar aged about 10 years son of Munarik Mahto Village-Bakoriya, P.S.- Manika and found lacerated wound over vertex scalp 5”x1/2”x1/2” bone deep leading to haematoma formation in the subdural, on dissection no internal injury was found in peripheral cavity , since the death time expired was 20-30 hours.
10. Learned counsel for the appellant has argued that there was on going dispute regarding collection of Mahua and properties between the parties and this has come in the evidence of P.W. 3 & 4. In fact there was a case also lodged by the appellant so it is case and counter case arising out of the dispute in which both sides have rights and this has to be taken into consideration while deciding the case. He has further said that the independent witnesses have been declared hostile and other witnesses are either relatives of the informant or close to him, so the evidence of independent witnesses cannot simply be discarded and other witnesses only relied upon. He has further submitted that it has come on record that around 50 to 100 persons were there but none of them supported the case. He has also submitted that if many persons were made witnesses to the incident then many more persons would have come forward to support the case of prosecution but that has not been the case. So the case of the prosecution does not rest on strong footing. Counsel for the appellant has also challenged the doctor's findings and said that it is not clear as to how the assault was made , as per doctor's report whether it was made from the back or front and in the absence of such clear cut finding whatever deductions can be made from the report of the doctor, will be faulty. He has also submitted that the Axe, which is 5 alleged to have been used, was not recovered and was also not sent to the Forensic Science Laboratory for examination. He has also said that he is not the veteran criminal and he should not be examined or judged as a veteran criminal. Regarding investigation by the I.O., he has also said that the I.O. has visited the place of occurrence, collected blood samples, but, seizure list was not prepared and and also the same was not even sent to the Forensic Science Laboratory to determine whether it was animal blood or human blood, in absence of such seizure list and in the absence of such report from the Forensic Science Laboratory and in absence of determination of the blood by the FSL, it can not be said that the assault took place. Finally he has said that the appellant is in custody from 28.3.2001 and he was only released on 20.06.2003 indicating that he has been in custody for sufficient time, therefore he should be given the benefit of being released because of custody already been spent in prison.
11. Learned counsel for the State has argued that P.W. 3 & 4 who are father and mother are not only eye witnesses but natural eye witnesses and they have fully supported the case of the prosecution. He has submitted that the appellant was armed with tangi and tried to cause harm to P.W4but in the process, son of informant was injured and finally he lost his life. Counsel for the State has submitted that since the appellant was armed with tangi, he had full knowledge that the assault will cause injury, which in normal circumstances, will cause death. If he was holding Lathi or stick, it could be said that he had no knowledge that it could cause death in ordinary circumstances but by holding tangi, it can be safely inferred that in ordinary circumstances it will result in death. He has further submitted that Gopal Sao, P.W. 6, gave his jeep for taking the child to the hospital in his jeep and this proved that child was injured and even though he has been declared hostile on the point of assault. Then the question arises how and why a child will be taken to the hospital. So on this basis also, he says that he supports the case of prosecution. Regarding P.W. 3 & 4, he said that there may not be independent witnesses but no father and mother will forgive a person who has killed his son. In this case Rajendra Mahto is responsible for killing of the son of P.W. 3 & 4 and that is why he has been implicated in this case. There is no reason for them to implicate any false persons. He has further said that since the dispute was also with other relatives then they would have to implicate not only the present appellant but also other relatives which has not been the case. He has further submitted that the appellant has only been made accused because the incident actually occurred and did take place. Regarding P.W. 10 who is doctor, he has submitted that there was scalp injury which shows that there was head injury which is a vital 6 part of the body. Moreover, he has submitted that though the doctor has not referred to weapon which is used but the scalp injury indicates that it was made in vital part of the body. Finally , he has also said that the occullar evidence of P.W. 3 & 4 is supported by doctor's report to scalp injury and assault by hard and blunt substance. F I N D I N G S12 This is a case for the offence under section 304 Part II of the Indian Penal Code. It is a case in which a child was hit by an axe during the fight between elder and the child subsequently died. There are two reliable eye witnesses to the assault made by the appelalnt and from the evidence and records of the case, there is no reason to consider them unreliable.
13. From the fardbayan of P.W. 3 Munarik Mahto he had gone to confront his brother, the appellant, who came out his house, and entered the house of the informant and assaulted with Tangi, with intention to hit his wife Kalawati, but it hit her child, who later on succumbed to his head injury in the hospital at Tumbagarh. Both he and his wife, P.W. 4 Kalawati Devi have supported the prosecution story and there appears to be much credibility in it. From the evidence of P.W3and P.W. 4, it seems there was a subsisting and long dispute regarding collection of Mahua from the Mahua Tree. The brothers were living separately it seems from the last 20 years, but as per the deposition of P.W. 3, their father had died five years ago, and the other uncles and one son of an uncle started making claim on the Mahua which was also supported by the appellant.
14. In fact on the alleged date, Rajendra Mahto, the brother of the informant and appellant had abused the wife and daughter over collecting of Mahua. So, on that fateful day there already had been an altercation between the families. So when P.W. 3 went to question his brother, it may have provoked him, causing him to pick up the axe and assault Kalawati, however, he hit the child. So, motive in on going dispute is made out.
15. In this case the ocular evidence of P.W. 3 and P.W. 4 has been supported by the medical report of the doctor P.W. 10, Dr. Surendra Kumar Singh has deposed that on 20.3.2001, at 2.30 p.m., he had conducted post mortem examination on the dead body of the son of Munarik Mahto of village-Bakoriya, P.S.- Manika, District-Latehar. He has found lacerated wound over vurtux scalp 5”x1/2”x1/2” bone deep leading to haematoma formation in the subdural. On dissection, no internal injury was found in peripheral cavity. Time elapsed since the death was 20-30 hours. So it seems that the child was rushed to the hospital soon after the assault, and the sequence of events suggest that assault was made by the appellant and there was no reason even 7 for the brother of the appellant to needlessly frame his brother for the death of his child.
16. Hence, in such circumstances where there are two reliable and material eye witnesses and whose testimony is corroborated by the medical post mortem report of the doctor, then there is no need for any other witness or independent witness or witnesses. In this case, though Gopal Sao, P.W. 6 may not have supported the case of the assault, he did give his jeep to take the child to the hospital in his Jeep.
17. The argument of non recovery of the weapon of assault or the seizure of blood stained soil and clothes, and not receiving forensic reports, are indeed failures on the part of the prosecution, but in the fact of direct witnesses and corroboration by the doctor, the allegations are sustained.
18. Hence, on the basis of the records, evidence and arguments, the conviction dated 23.09.2002 of the appellant Rajendra Mahto for the offence under section 304 Part II of the IPC is sustained and upheld, and therefore, the sentence imposed by the learned District and Sessions Judge, Latehar, dated 25.09.2002 is also sustained. The appellant seems to be on bail, the convicting or successor court is directed, on receipt of the order, to take steps in accordance with law to procure his arrest, to serve out the remaining sentence.
19. Appeal, is accordingly dismissed. ( Ratnaker Bhengra,J.) Jharkhand High Court, Ranchi Dated / /2016 Sharda/NAFR