ILLU MAHTO Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) This criminal appeal has been directed against the judgment of conviction and order of sentence dated 22nd September, 2003 passed by learned 9th Additional Sessions Judge, Hazaribagh in connection with Sessions Trial No.204 of 1999, corresponding to G.R. No.2133 of 1997, T.R. No.815 of 1999, arising out of Gola P.S. Case No.75 of 1997, whereby the appellants have been held guilty for the offence punishable under Sections 302/149, 325 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 500/- each and in default of payment of fine further simple imprisonment for two months under Section 302/149 IPC, rigorous imprisonment for three years under Section 325 IPC and rigorous imprisonment for one year under Section 148 IPC and sentences so passed were directed to run concurrently. One of the co-convict Kamaldeo Mahto was also put on trial along with the appellant, but he has been held guilty under Section 148 IPC and Section 323 IPC and sentenced to undergo rigorous imprisonment for one year under Section 148 IPC and six months under Section 323 IPC. It is not evident from the record, whether said coconvict Kamaldeo Mahto has preferred any appeal or not.

(2.) The facts emerging from the Fardbeyan of Barun Mahto @ Barun Kumar, recorded on 28th December, 1997, at 8:30 hours, at Gola Hospital, are as follows:- On 28th December, 1997, at about 6:00 a.m., the informant with his father-Ram Pado Mahto (deceased) and brother-Girdhari Mahto (deceased) had been uprooting radish in their field. At about 6:30 a.m., the appellants reached to the place and started cutting and demolishing bushes by which the field of the informant was fenced. They were also armed with axe, Lathi, iron rod etc. When father and brother of the informant raised objection, the appellants made an attack and caused injuries to Ram Pado Mahto and Girdhari Mahto, as a result they fell down and became unconscious. The informant and his another brother-Narayan Mahto when intervened, they were also assaulted by accused Kamaldeo Mahto. On the basis of the Fardbeyan of Barun Mahto, Ramgarh, Gola P.S. Case No.75 of 1997 dated 28th December, 1997 under Sections 147, 148, 323, 324 and 307 of the Indian Penal Code was registered. Ram Pado Mahto and Girdhari Mahto were removed to R.M.C.H., Ranchi for better treatment, but they succumbed to their injuries on the very next day i.e. on 29th December, 1997. After death of Ram Pado Mahto and Girdhari Mahto Section 302 of the Indian Penal Code was added. The police after due investigation submitted charge sheet against all the accused persons named in the first information report under Sections 147, 148, 149, 323, 324, 325, 307 and 302 of the Indian Penal Code. Accordingly, cognizance was taken and the case was committed to the Court of Sessions and registered as Sessions Trial No.204 of 1999.

(3.) Charges under Sections 148, 323, 302 and 149 of the Indian Penal Code were framed to which the appellants pleaded not guilty and claimed to be tried. The prosecution in order to substantiate charges examined altogether sixteen witnesses, including the informant, Dr. Ram Sevak Sahu, who had conducted postmortem examination on the dead body of Ram Pado Mahto and Girdhari Mahto and Dr. Ajit Kumar Agarwal, who had examined the injured, including deceased, and the Investigating Officer. Ghanshyam Mahto-P.W.1, Narayan Mahto-P.W.2, Barun Mahto (informant injured)-P.W.3, Thakmani-P.W.4 and Ashok Prasad-P.W.5 are eyewitnesses and they have supported the prosecution case as made out by the informant in the Fardbeyan. Ghanshyam Mahto-P.W.1 and Ashok Prasad-P.W.5 are independent witnesses and they have said that on Halla they went to the place of occurrence and had seen the occurrence which took place on 28th December, 1997 in the morning at about 6:30 a.m. These two witnesses have stated that the accused were armed with Lathi and iron rod and they caused assault to Ram Pado Mahto and Girdhari Mahto. It is disclosed that Illu Mahto and Hemlal Mahto were having iron rod in their hands, whereas rest of the appellants were having Lathi. They have further described the overt act committed by each of the appellant. P.W.1 has further stated that the injured were brought to the hospital and after some treatment Ram Pado Mahto and Girdhari Mahto were referred to Ranchi for better treatment. Narayan Mahto-P.W.2 and Barun Mahto-P.W.3 are the sons of the deceased Ram Pado Mahto and they have narrated the same story that on 28th December, 1997 in the morning at about 6:30 a.m. they were engaged in their field in uprooting radish. In the meantime the appellants armed with iron rod, Lathi etc. appeared and started cutting and removing bushes by which the aforesaid field was fenced. Ram Pado Mahto and Girdhari Mahto raised objection and they were assaulted by the appellants by means of iron rod and Lathi. After sustaining injuries, Ram Pado and Girdhari fell down. When these two witnesses tried to intervene, they were also subjected to assault. They have also described the role played by the appellants. P.W.3 has specifically stated, when he tried to save his brother, he was assaulted by means of Lathi by one of the co-convicts, namely, Kamaldeo Mahto. Thakmani-P.W.4 is wife of deceased-Ram Pado Mahto and she has also repeated the same story, narrated by her two sons, namely, Narayan Mahto-P.W.2 and Barun Mahto P.W.3. Mathura Rajwar-P.W.6 has stated that the occurrence took place on 28th December, 1997 at 6:30 a.m.in the field of Ram Pado Mahto. He was attracted towards the place of occurrence after hearing the voice "BACHAO BACHAO". He ran to the place of occurrence and saw Ram Pado Mahto and Girdhari Mahto were lying unconscious in their field. Barun Mahto-P.W.3, Thakmani-P.W.4 and Narayan MahtoP.W.2 were crying at the spot. He had seen injury on the right leg of Barun Mahto. He was informed that appellant Illu Mahto and his associates have caused assault to Ram Pado and Girdhari. Radha Mahto-P.W.7, Jagarnath Mahto-P.W.8 and Suresh Mahto-P.W.9 have introduced another story by saying that the deceased-Ram Pado Mahto with his sons had been uprooting and destroying radish and potato crops grown by the appellant-Illu Mahto. When Illu Mahto made protest, he was assaulted by means of Lathi by Ram Pado Mahto. Thereafter, they fought with each other. Out of these three witnesses, Suresh Mahto-P.W.9 has been declared hostile, but remaining two witnesses, namely, Radha Mahto-P.W.7 and Jagarnath Mahto-P.W.8 were cross examined and they were not declared hostile by the prosecution. Ram Sundar Mahto-P.W.11, Bigan Mahto-P.W.12, Rathu Mahto-P.W.13 and Ruplal Mahto-P.W.14 are the witnesses, who reached to the place of occurrence and had seen the injured lying in the field. They may be considered as hearsay witnesses. Dr. Ram Sevak Sahu-P.W.10 had conducted postmortem examination on the dead body of Ram Pado Mahto and Girdhari Mahto and proved the postmortem reports as Exts.2 and 3, respectively. The injuries found on the person of the deceased have been described. Dr. Ajit Kumar Agarwal-P.W.15 had examined Ram Pado Mahto, Girdhari Mahto and Barun Mahto when they were brought to Gola Hospital in injured condition and provided them required treatment. P.W.15 has proved the injury report as Exts.4, 4/1 and 4/2, respectively. Devendra Prasad-P.W.16 is the Investigating Officer. He has supported the investigation done by him and proved Fardbeyan as Ext.5, signature appearing on the Fardbeyan-Ext.1/1, endorsement made thereunder-Ext.1/2 and signature on formal first information report-Ext.1/3. Injury slips issued for medical examination of Ram Pado Mahto (deceased), Girdhari Mahto (deceased) and informant-Barun Mahto (injured) have been proved and marked as Exts.6, 6/1 and 6/2. Learned Trial Judge, placing reliance on the documents and evidences available on record, held the appellants guilty for the offence alleged and inflicted sentence as indicated above.