Mukul Mahto &
Ors. Vs. State of Jharkhand & ANR.  INSC 1733 (15 October 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELALTE JURISDICTION CRIMINAL APPEAL NOS. 862-863 OF 2001
Mukul Mahto and Ors. ....Appellants Versus State of Jharkhand and Anr.
Dr. ARIJIT PASAYAT,
in these appeals is to the judgment of a Division Bench of the Jharkhand High
Court, allowing the appeal filed by the State and thereby setting aside the
acquittal of accused-respondents before it. All the five accused persons were
convicted for offences punishable under Section 326 read with Section 34 of the
Indian Penal Code, 1860 (in short the `IPC') and were sentenced to undergo
rigorous imprisonment for four years.
Accused Durga was
convicted for offence punishable under Section IPC and sentenced to undergo
imprisonment for one year. The revision petition filed by the informant was
also disposed of. The learned Additional Sessions Judge, Dhanbad, had directed
acquittal of the accused persons who are appellant Nos. 1 to 5 in the present
facts in a nutshell are as follows:
On 12.8.1984 at about
7.30 p.m. while the informant was sleeping in his house, his brother Bistu
Mahto (hereinafter referred to as the `deceased') visited his house to borrow
his bullock. As soon as the deceased came out of the house, after talk with the
informant, all the five accused way laid him and started to abuse him. The
deceased retorted and exchanged abuses with them, whereafter, the accused
persons assaulted and wounded the deceased with lathi and axe. On hearing his
cry, the informant and others i.e. Golak Mahto (PW-3), Kirtan Mahto, Laxman
Mahto (PW-8) and Jitu Mahto (PW- 7) rushed from their house to save the
deceased. But the accused persons variously assaulted them as well as the
informant with lathi and axe.
Jaleshwar Mahto, Asu
Mahto, Suphan Modi (not examined) and some other villagers had also witnessed
2 The further
prosecution case is that deceased who had sustained bleeding head injury and
the other injured namely PWs 3, 7, 8 and Kirtan Mahto were carried with the
help of the villagers and admitted to the State Dispensary, Baliapur for
treatment wherefrom the deceased and PW-3 whose condition was serious were
shifted to Sindri F.C.I. Hospital and after two days the deceased succumbed to
the wounds in the hospital, while undergoing treatment.
On the basis of the
information lodged, investigation was undertaken.
After the death of
the deceased on 15.8.1984 charge under Section 302 read with Section 34 IPC was
added in addition to the registration of the case under Sections 341, 323 and
506 read with Section 34 IPC. Accused persons pleaded innocence. It was stated
that accused Durga had instituted a case against 11 persons including the
informant, the deceased, Golak Mahto (PW-3), Kirtan Mahto, Laxman Mahto (PW-8)
and one Nitu Mahto. The trial Court came to hold that accusations were not
established. The main reason given for the acquittal of accused persons was
that PWs 1 and 2 were hearsay witnesses and PWs 4 and 6 are related to the
deceased. They claimed to be the eye witnesses to the occurrence and were not
cited in the first information report. PW-8 was an injured witness who had
stated that when he reached the place of occurrence, none was present except
the accused persons and the prosecution party and this falsified the claim of
PWs 4 and 6 that they had witnessed the actual assault. One of the injured
Kiran Mahto was not examined and no explanation was given for his non
examination. The evidence of PWs 3, 7, 8 and 10 was held to be not sufficient
though they claimed to have sustained injuries. Another factor which weighed
with the trial Court was that the witnesses were close relatives of the deceased.
High Court as noted above, reversed the conclusions and directed conviction.
support of the appeals, learned counsel for the appellants submitted that the
parameters of an appeal against acquittal have not been kept in view by the
High Court. The trial Court had doubted the credibility of the so called eye
witnesses PWs 3, 4, 6, 7, 8 and 10 who were relatives of the deceased. The High
Court found that the evidence of PWs 3, 7, 8 alongwith PW-10 as well as the
evidence of PWs 4 and 6 inspire confidence. The High Court found that the
acquittal as directed was improper. It is submitted that the view of the trial
Court was a possible view and, therefore, the High Court should not have
counsel for the State has pointed out that the view of the trial Court is
unsustainable. Even after applying the yardsticks highlighted by this Court the
judgment of the High Court does not suffer from any infirmity.
High Court has referred to the evidence of PWs 3, 7 and 8. It has been indicated
that the doctor who examined these witnesses and the deceased initially, has
not been examined during trial. Since the homicidal death has not been
disputed, the non-examination of the doctor is not fatal.
Another plea which
found acceptance by trial Court was the absence of incised wound when weapon of
assault was axe. The witnesses had also stated about use of lathi. It is also
to be noted that, as done by the High Court that axes which are generally used
in villages for cutting trees and branches are not so sharp like sword or knife
and when used on the head, can also cause lacerated injuries. (See Ch.
Madhusudhana Reddy v. State of A.P. 1994 SCC (Crl.) 275)
matter can be looked from another angle. Even if they had not suffered any
injuries yet their version as eye witnesses if credible and cogent can be
accepted and acted upon and there is no reason to discard their evidence on the
ground that a doctor who examined their injuries was not examined. The High
Court has concluded that the evidence of PWs regarding the presence and
participation of the accused in the occurrence is reliable and truthful. The
victims of assault would not normally spare the real culprits and falsely
implicate innocent accused persons. Their evidence clearly shows that the
deceased was lying injured at the spot where the accused persons were present
and they assaulted PWs 3, 7 and 8 when they went to rescue him. With reference
to the evidence it has been noticed by the High Court that the common house of
the deceased and PWs 3, 7 and 8, the eye witnesses is at a very short distance
and it is quite natural that on hearing alarm they had rushed to the place of
from that the evidence of PW-10 the informant is of considerable significance.
The High Court has noted that there were some exaggeration in his statement
though reading the same carefully along with the evidence of PWs 3, 7 and 8
lends support to the prosecution case.
High Court found the present appellants guilty. But considering the manner of assault
and the surrounding factors convicted them for offence punishable under Section
326 read with Section 34 IPC. The judgment of the High Court does not suffer
from any infirmity to warrant interference.
appeals are dismissed.
(Dr. ARIJIT PASAYAT)