KOLHA MAHTO Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) Appellant, Kolha Mahto (hereinafter to be referred to as 'accused'), filed the instant appeal through jail, that too, with a huge delay of 2822 days, which was condoned by the Court on 12th August, 2010. One Ms. Samta Singh, Advocate, was appointed as Amicus Curiae to assist the Court on behalf of the accused. When the instant matter was taken up for its final consideration in September, 2015, the Court was informed that Ms. Samta Singh has already stopped coming to the Court; it is how Mr. Yogesh Modi, Advocate, has now been appointed as Amicus Curiae on behalf of the accused. He is stated to be in custody for the last more than sixteen years. Exact period a per Jail Certificate is 16 years and 7 months. The occurrence is of 30th January, 1988. The deceased, in this case, is father of the accused. The first informant is wife of his real brother namely PW -Dukhni Devi. The motive, as projected is the dispute with regard to partition of land owned by the father (deceased) as he had given three shares of his land to his other three sons and kept the fourth share with himself. This was disturbing the accused, who allegedly killed his father with a sharp edged weapon commonly known in village as 'Tangi'. He also assaulted PW -Dukhni Devi with the same weapon (Tangi) for which he was charged for the offence punishable under Sec. 307 IPC also along with the main charge of Sec. 302 I.P.C. and now stands convicted, for both the charges. The sentence slapped upon him is life imprisonment for Sec. 302 IPC and RI of ten years for Sec. 307 IPC.

(2.) At the very outset, Mr. Modi, learned counsel for the appellant, submitted that so far as the main charge of Sec. 302 I.P.C. is concerned, the prosecution has not been able to prove the said charge as the Doctor, who had conducted autopsy on the dead body of the deceased, did not step into the witness box to prove the Post Mortem Report. He submitted that the case of the prosecution was closed by the order of the Court when the prosecution could not examine all the witnesses despite availing several opportunities. Learned counsel submitted that death of the deceased being homicidal, according to the learned Trial Court, is proved from the statement of PW -Dukhni Devi, the first informant as she has stated on oath that in her presence the accused had killed his father, but, this view is not legally sustainable in the absence of doctor being produced for proving the Post Mortem Report, as such charge of Sec. 302 I.P.C. fails.

(3.) Learned counsel further submitted that may be learned Trial Court had closed the evidence by its own order, still in the interest of justice, the doctor, who had conducted the autopsy on the dead body of the deceased could be examined as a Court Witness or even the Public Prosecutor could move an application under Sec. 311 Cr.P.C. for calling the doctor at least or in the alternative closing the evidence by the Court itself could be assailed in appeal/revision. According to learned counsel, on all these counts, there had been a casual approach, but, the effect now is that the charge of Sec. 302 I.P.C. fails.