KARTIK MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both the appeals have been heard analogous and are being disposed of by this common judgment as they arise out of the common judgment and order dated 18th day of September, 1991 passed by the 2nd Additional Sessions Judge, Dumka. There are three appellants namely, Kartik Mahto, Bhado Mahto and Shankar Mahto in Criminal Appeal No. 412 of 1991 and sole appellant Sukar Mahto in Criminal Appeal No. 436 of 1991. The learned trial Court has convicted appellant Sukar Mahto under Section 302 of the Indian Penal Code (hereinafter referred to as the 'I PC') and sentenced him to imprisonment for life. Appellant Kartik Mahto has been convicted under Sections 302/34 of the IPC and sentenced to life imprisonment. The appellant Bhado Mahto and Shankar Mahto have been convicted under Section 323 of the I.P.C. but instead of sentencing them to any imprisonment the Court has directed them to be released under the provisions of Probation of Offenders Act on furnishing bond of Rs. 2,000/ - with two sureties of the like amount and they have been further directed to keep peace and be of good behaviour for a period of one year There were nine accused facing trial in Sessions Case No. 437 of 1986 but only the above -named four accused -appellants were found guilty and convicted accordingly and the remaining five accused were acquitted of the charges framed against them.

(2.) The prosecution case in brief is that on 30 -6 -1986 at village Gopalpara Karmatar there was an altercation between the informant Sukhdeb Mahto (P.W. 9) and accused Raghu Mahto on account of dispute regarding flow of rain water from the house of the informant towards the adjacent Gali. In the meantime, all the remaining accused, nine in numbers reached there. The deceased Nathu Mahto, the cousin brother of the informant also happened to reach there in the Gali near the house of the informant. Nathu Mahto (deceased) supported the case of informant justifying the flow of the rain water from his house to the adjacent Gali. In course of altercation accused Raghu Mahto ordered to assault and accused Kartik Mahto caught hold of the hands of Nathu Mahto. Appellant Sukar Mahto gave one farsa blow at the head of Nathu Mahto, in consequence to which he fell down with bleeding injury on his head, thereafter remaining accused -persons assaulted Nathu Mahto with lathi. As a result of which he died on the spot. The two sons of deceased Nathu Mahto, namely, Teko Mahto and Dhaneshwar Mahto tried to intervene, upon which accused -appellant, Bhado Mahto gave one lathi blow on Teko Mahto hitting at his head and accused -appellant Shankar Mahto assaulted Dhaneshwar Mahto with lathi and appellant Sukar Mahto gave one farsa blow on Dhaneshwar Mahto causing injury at his palm. It is further case of the prosecution that accused -persons dragged the dead body of Nathu Mahto and brought it in front of the house of the informant and thereafter they fled away. The fardbeyan (Ext. 3) of Sukhdeb Mahto was recorded at the village on 30 -6 -1986 at 5.30 p.m. by S.I., Vijendra Narain Singh (P.W. 10) on the basis of which the formal F.I.R. was drawn up. The Investigating Officer submitted charge -sheet against all the accused -persons except accused Satish Mahto, Andhi Mahto and Gendo Mahto. During trial, the prosecution filed petition to summon the above three accused -persons to face trial which was allowed by the trial Court vide order dated 19 -9 -1989. After appearance of these three accused -persons the trial Court amended the charge and all the nine accused -persons were tried under Sections 302/149 and other ancillary sections of the I.P.C. The case of the defence is denial of the occurrence and of false implication because of previous enmity. It is their further case that at the relevant time the informant and his men had breached the fencing of the field of accused Raghu Mahto, which caused inundation of his filed and when Raghu Mahto protested the informant and his men assaulted Sukar Mahto with an intention to kill him for which a case was lodged by Sukar Mahto.

(3.) The prosecution has examined 10 witnesses out of which P.W. 1 (Rukmani Devi), mother of the informant, Kamali Devi (P.W. 2) daughter -in -law of the deceased and wife of Sona Mahto (P.W. 3), Teko Mahto (P.W. 5| one of the son of the deceased, who is also an injured, P.W. 6 (Md. Rafiq), P.W. 7 (Dhaneshwar Mahto), another son of the deceased and the informant Sukhdeb Mahto (P.W. 9) are eye -witnesses. P.W. 4 (Dr. Arun Kumar Chakravorty) held the post -mortem examination on the dead body of Nathu Mahto at Sadar Hospital, Jamtara on 1 -7 -1986 and he found the following injuries: