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Judgment
Heard learned counsel for the appellant and learned counsel for the
State.
The appellant is aggrieved by the Judgment of conviction and
Order of sentence dated 22.07.2006 passed by the learned 6 th Additional
Sessions Judge, F.T.C., Dhanbad, in S.T No. 310 of 2004 / 67 of 2005, whereby,
the sole appellant has been found guilty and convicted for the offence under
Section 302 of the Indian Penal Code. Upon hearing on the point of sentence,
the appellant has been sentenced to undergo imprisonment for life and a fine of
Rs.500/-, for the said offence.
According to the prosecution case, the occurrence had taken place
sometimes in the night between 22-23.1.2004. The F.I.R was lodged on the
basis of the fardbeyan of Pawan Kumar Mahto, who is the brother of the
deceased Haradhan Mahto, who stated that on 22.1.2004, his deceased brother
had gone to work in Kankani colliery, but he did not return in the evening. On
23.1.2004 in the morning, the informant was informed by his neighbour,
Sunil Kumar Mahato that the dead body of his brother was lying by the side of
the pond, whereupon, the informant and the other villagers went there and saw
the dead body of the deceased with several injuries. He has stated that few
months prior to the occurrence, Haradhan Mahto had caught Teklal Mahto with
a girl of his village in objectionable condition whereupon, he had raised alarm
whereupon, the villagers came and also assaulted him. A Panchayati was also
held, in which, a fine of Rs. 2,000/- was imposed upon him. Teklal Mahto and
his father, Mani Ram Mahto were aggrieved due to the said fact and they used
to threaten to kill Haradhan Mahto. On 22.1.2004, the informant had seen
Teklal Mahto near the pond. Alleging that the deceased had been murdered by
these accused persons due to the said enmity, the fardbeyan was given, on the
basis of which, Gobindpur (Barwada) P.S Case No.22 of 2004, corresponding to
G.R No.1212 of 2004, was instituted for the offence under Sections 302 / 34 of
the Indian Penal Code against the accused, Teklal Mahto and his father
Mani Ram Mahto and investigation was taken up. After investigation, the police
submitted the charge-sheet against accused, Teklal Mahto.
After commitment of the case to the Court of Session, charge was
framed against the accused, Teklal Mahto for the offence under Section 302 of
the Indian Penal Code, and upon the accused''s pleading not guilty and claiming
to be tried, he was put to trial. In course of trial, ten witnesses were examined
on behalf of the prosecution. The Investigating Officer has not been examined
in the case.
P.W.-10 Pawan Kumar Mahto is the informant and the brother of
the deceased. This witness had stated that on 22.1.2004, his brother,
Haradhan Mahto had gone to work in Kankani colliery, but he did not return
back. On the next day morning Sunil Mahato informed him that the dead body
was lying by the side of a pond, whereupon, this witness and other villagers
went to the place of occurrence and found the dead body with injuries thereon.
He has stated that prior to the occurrence, Haradhan Mahto had caught
Teklal Mahto with a girl of his village in objectionable condition and had raised
alarm whereupon, there was a Panchayati in which, Teklal Mahto was imposed
a fine Rs.2,000/-. Teklal Mahto and his father Mani Ram Mahto were aggrieved
due to the said fact and they used to threaten to kill Haradhan Mahto. This
witness had stated that on 22.1.2004, he had seen Teklal Mahto near the pond.
He has stated that his statement was recorded by the police, on which, he had
put his signature, which on his identification was marked Exhibit-2/1. Though
this witness was put to extensive cross-examination but there is nothing of
much importance on his cross-examination.
P.W.-1 Sunil Kumar Mahto, P.W.-2 Chola Ram Mahto, P.W.-3
Hari Ram Mahli, P.W.-4 Ujar Mahli, P.W.-7 Bhuwan Mahto, P.W.-8 Surji Devi,
the mother of the deceased and P.W.-9 Lilu Mahto, have all deposed in the
Court that upon getting information, they had gone to the pond and had seen the
dead body of the deceased with injuries on his body. They have also stated that
the deceased had seen the accused Teklal Mahto with a girl of the village in
objectionable condition whereupon the accused, Teklal Mahto was imposed
fine by the villagers and due to that enmity, he used to threaten the deceased.
None of these witnesses are the eyewitness to the occurrence of murder. P.W.-1
Sunil Kumar Mahto and P.W.-2 Chola Ram Mahto are also the witnesses to the
inquest report of the dead body, and they have identified their signatures on the
inquest report, which were marked Exhibits 1 & 1/1. P.W.-2 Chola Ram Mahto
was also a witness to the fardbeyan and he has also identified his signature on
the fardbeyan, which was marked Exhibit-2.
P.W.-6 Durga Rai has claimed to be the eyewitness to the
occurrence, but this witness has only stated that he had only seen the quarrel
(mar-peet) between the deceased and the accused persons, Teklal Mahto and
Mani Ram Mahto. He has stated that Teklal Mahto was armed with Tangi and
Mani Ram Mahto was armed with Lathi. He was also threatened by the accused
persons, whereupon, he fled away. On the next day, he heard that
Haradhan Mahato had been murdered and he also saw the dead body of the
deceased. This witness has identified the accused in the Court. In his
cross-examination, this witness has admitted that he had not given the
information to anyone in the village.
P.W.-5 Dr. Shailendra Kumar is the Medical Officer, who had
conducted the post-mortem examination on the dead body of the deceased and
he had found in all, seven incised ante-mortem wounds on the dead body of the
deceased and one abrasion, which he has detailed in his evidence. He has also
given the other details of the findings in the post-mortem examination and has
identified the post-mortem report, to be in his pen and signature, which was
marked Exhibit-3.
As stated earlier, the Investigating Officer has not been examined
in this case. On the basis of the evidence on record, the appellant has been
convicted and sentenced for the offence under Section 302 of the Indian Penal
Code by the Trial Court below.
Learned counsel for the appellant submitted that the impugned
Judgment of conviction and Order of sentence passed by the Trial Court below
are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as,
none of the witnesses, except P.W.-6 Durga Rai is the eyewitness to the
occurrence. There is only suspicion against the accused in the evidence of all
the other witnesses who have supported the prosecution case. Only P.W.-6
Durga Rai has claimed to be the eyewitness to the occurrence and he has also
stated that he had only seen the quarrel between the deceased and the accused
persons and thereafter, he had fled away from the place of occurrence. He has
not made any specific allegation of assault against any of the accused, though it
is alleged that two persons were quarreling with the deceased. This witness has
also admitted in his cross-examination that he had not informed any villager in
the village about this occurrence. Learned counsel accordingly, submitted that
in fact, there is no eyewitness to the occurrence of murder and there is only
circumstantial evidence against the appellant, which too, is too weak to secure
the conviction of the appellant. Learned counsel accordingly, submitted that it is
a fit case, in which, the appellant ought to have been given at least the benefits
of doubt.
Learned counsel for the State, on the other hand, has opposed the
prayer and has submitted that the prosecution has been able to prove the charge
against the accused appellant beyond all reasonable doubts. It is submitted that
P.Ws-1 to 4 and P.Ws -7 to 10 have all seen the dead body of the deceased and
they all had stated about the motive of the occurrence. Though these witnesses
are not the eyewitness to the occurrence of murder, but these witnesses have
stated that due to the fact that the accused-appellant was caught red-handed with
a girl of the village in objectionable condition by the deceased, the accused
appellant was threatening the deceased to kill him. P.W.-10 Pawan Kr. Mahto
had also seen the deceased in the village near the pond on the day of
occurrence. Subsequently, the dead body of the deceased was found. P.W.-6
Durga Rai is the eyewitness to the occurrence, who has stated that the accused
appellant was armed with tangi and quarrel was going on between the accused
and the deceased. He was threatened by the accused and he fled away and on
the next day, he also saw the dead body of the deceased. It is also submitted that
several ante-mortem injuries caused by sharp cutting weapon were found on the
dead body of the deceased and as such, the prosecution has been able to prove
the charge against the appellant beyond all reasonable doubts.
Having heard learned counsels for both sides and upon going
through the record, we find that all the witnesses, except P.W.-6 Durga Rai, are
not the eyewitness to the occurrence. They had only seen the dead body of the
deceased and has raised suspicion against the accused due to the previous
occurrence, in which, the accused was allegedly caught with a girl of the village
by the deceased, for which, he was also imposed a fine and for that he was
having enmity with the deceased. Though P.W.-6 has claimed to be the
eyewitness to the occurrence, stating that the deceased was armed with Tangi
and he had seen the quarrel going on between the deceased and the accused, but
he has not made any specific allegation of assault upon the appellant, as he has
alleged that two persons were quarreling with the deceased, and has specifically
admitted that he did not inform the villagers about the said occurrence.
We are of the considered view that even though P.W.-6 Durga Rai
has tried to become the eyewitness to the occurrence, but in absence of any
specific statement of assault made by him in his evidence, and in view of his
admission that he had not given any information to the villagers, only the
evidence of P.W.-6 Durga Rai cannot be made the basis for conviction of the
appellant for the offence under Section 302 of the Indian Penal Code. In the
facts of this case, we find that the appellant was entitled at least to the benefits
of doubt and the impugned Judgment of conviction and Order of sentence
cannot be sustained in the eyes of law.
For the foregoing reasons, the impugned Judgment of conviction
and Order of sentence dated 22.07.2006 passed by the learned 6 th Additional
Sessions Judge, F.T.C., Dhanbad, in S.T No. 310 of 2004 / 67 of 2005, are
hereby, set aside. The appellant Teklal Mahto is given the benefit of doubt and
he is acquitted of the charge. The appellant is in custody. Let him be released
and set at liberty forthwith, if his detention is not required in any other case.
This appeal is accordingly, allowed. Let the Lower Court Records
be sent back forthwith, along-with a copy of this Judgment.