Mundrika
Mahto & Ors Vs. State of Bihar [2002] Insc 227 (29 April 2002)
U.C.
Banerjee & Y.K. Sabharwal Y.K. Sabharwal, J.
The
murder of deceased Ramanand Mahto was committed in a ghastly manner. The head
of the deceased was severed from the trunk. 13 persons were charged for the
offence including the appellants who were six in number. One out of 13 - Shyam Narain
Mahto @ Nanhki Mahto was acquitted by the Sessions Court. Three of them - Rishi
Mahto, Asmani Mahto and Anand Lal Mahto were acquitted by the High Court.
The
special leave petitions filed by three of the accused - Lachhu Gaderi, Ramchandra
Gaderi and Subhash Mahto challenging the judgment of the High Court confirming
that of the Sessions Court were dismissed and, thus, their conviction and
sentence has been finally maintained.
The
prosecution case, in brief, is that the deceased was riding a scooter and Ram Briksha
Mahto (PW-2) and informant Suresh Kumar (PW-5) were sitting on the back of the
scooter. Suresh Kumar was returning home after purchasing medicines when on the
way deceased, who was riding a scooter on which Ram Briksha Mahto was sitting
at the back, saw him and stopped the scooter and gave lift to him. The time was
between 10.30 p.m. to
10.45 p.m. When they
reached in front of tea stall of Lalan Mahto situated at Begampur Mandai Mohalla,
one person who was sitting on a thella (handcart) blocked the road with it the
moment the scooter reached near the said tea stall. All of a sudden, 10 to 15
persons came and pulled the deceased from the scooter. Lachhu Gaderi with Dab
and Ramchandra Gaderi with Bhujali started assaulting the deceased. Dab and Bhujali
are sharp edged weapons. The accused thrashed the deceased on the ground and
his head was severed from the trunk by Ramchandra Gaderi and Lachhu Gaderi with
their weapons while others were catching hold of the deceased. The trunk of the
deceased was dragged towards the north. Santosh Kumar (PW-1), son of the
deceased reached the place of occurrence on the alarm being raised by Suresh
Kumar and Ram Briksha Mahto. All this happened on account of litigation
concerning land that was going on between the deceased and Lachhu Gaderi and
others.
Immediately
after the occurrence, the Police was informed on telephone at about 11.00p.m. The telephonic information was recorded in daily
diary. Within about 15 minutes, i.e. at about 11.15 p.m., the Police reached at the place of occurrence and on the
statement of Suresh Kumar (PW-5) who is the nephew of the deceased, the FIR was
registered. The statement of Suresh Kumar was recorded at about 11.30 p.m. The names of the appellants were mentioned in the
FIR. Ramchandra Gaderi and Lachhu Gaderi have said to have chopped of the head
of the deceased. Other accused are said to have pulled down the deceased from
the scooter and dragged the trunk and threw it in a pool of water. They are
said to have caught hold of the deceased while Lachhu Gaderi and Ramchandra Gaderi
were chopping of the head. Accused Subhash kept the severed head of the
deceased in a plastic bag. Accused Mundrika is said to have extinguished the
light. Santosh Kumar is said to have reached the place of occurrence when the
trunk of his father was being dragged and he is the eye witness from the stage
of the dragging whereas Ram Briksha Mahto and Suresh Kumar have said to have
watched the entire occurrence. The conviction of Lachhu Gaderi, Ramchandra Gaderi
and Subhash has been finally maintained, their Special Leave Petitions having
been dismissed.
The
place of occurrence is near Chhapri of accused Mundrika. Ram Briksha Mahto has
named Ramchandra Gaderi and Lachhu Gaderi. According to his testimony, both
were known to him. It has come in his testimony that he knew the deceased as he
was living near the house of his in-laws. The deceased, noticing this witness,
stopped the scooter and offered to give him lift and later noticing Suresh
Kumar gave lift to him as well. He further states that when the scooter of Ramanand
Mahto reached near the shop of Lalan Mahto, a person blocked the road by thela
and the deceased had to stop the scooter and then 14-15 persons came there and
they all pulled down the deceased from the scooter. He identified Ramchandra Gaderi
and Lachhu Gaderi. He knew them. According to his testimony, these two
amputated the head of Ramanand Mahto who was caught by others. He further
states that on the shout of someone, light was put off and headless body was
dragged and thrown in a pit full of water. The light was put off by accused Mundrika.
On raising alarm, Santosh Kumar and other villagers gathered at the place of
occurrence and the accused fled therefrom.
Learned
counsel for the appellants, Mr. Lalit, strenuously contended that the fact that
Ram Briksha Mahto (PW-2) has named Ramchandra Gaderi and Lachhu Gaderi and not
the appellants who have only been named by Suresh Kumar (PW-5) who is an
interested witness, the conviction of the appellants is not liable to be
sustained, the same being based on no evidence. We have minutely and carefully
perused the testimony of Ram Briksha Mahto (PW-2), Suresh Kumar (PW-5) and Santosh
Kumar (PW-1). The testimony of Ram Briksha Mahto (PW-2) is most natural,
trustworthy and reliable. The fact that this witness has named the two accused
as aforesaid and not the appellants shows the truthfulness of the statement
that the witness knew Ramchandra Gaderi and Lachhu Gaderi and, thus, he named
only them. Regarding others, his statement is that 14-15 persons came there and
one of them put the amputated head in a plastic bag. That was accused Subhash,
though not named by Ram Briksha Mahto (PW-2) as he did not know him. It is in
this context that Ram Briksha Mahto stated that he has heard the names of other
accused from the advocate. It is important to bear in mind that within about 15
minutes of the commission of the offence, the Police party arrived at the scene
and within 15 minutes thereof, the statement of Suresh Kumar naming the
appellants was recorded. Under these circumstances, we are unable to accept the
contention that since the appellants were not named by Ram Briksha Mahto or
that he had not heard their names shows that they were falsely implicated.
Regarding the submission of Mr. Lalit that due to enmity, the appellants were
falsely implicated, it has to be noticed that there was hardly any scope for
false or over implication within a short time span of about half an hour.
In
respect of Suresh Kumar (PW-5) who is the nephew of the deceased and has
identified all the accused, the contention of Mr. Lalit is that being an
interested witness, the conviction of the appellants cannot be based on his
testimony without any corroboration which, it was contended, was absent. This
contention is also without any substance. The manner of commission of the
offence has been fully corroborated by the testimony of Ram Briksha Mahto and
from the stage of dragging by Santosh Kumar as well. The minor contradictions
in the testimony of Ram Briksha Mahto are of no consequence. The contention
that Santosh Kumar does not name accused Mundrika and Ram Rup Mahto for
dragging the body of his father or that name of Mundrika in pulling down the
deceased from the scooter and dragging his body has not been mentioned in the
FIR in the contextual facts is again of not much consequence. The shock on the
minds of Santosh Kumar (PW-1) and Suresh Kumar (PW-5) on whose statement FIR
was recorded within about half an hour can be well imagined and if in the
process when large number of accused were involved, name of some not mentioned
by one and that is mentioned by the other or there is slight variation in the
role would not attributed, that by itself will not result in failure of the
prosecutions.
A
great emphasis was laid by Mr. Lalit on the testimony of Dr. Shambhu Saran
(PW-8) and also on the testimony of the Investigating Officer, S.I. Din Dayal Pandey,
(PW-6) to discredit the story of dragging of the headless body by the
appellants and throwing thereof at a distance of about 40 ft. It was
strenuously contended by the learned counsel that if it had been so dragged,
that would have resulted in number of injuries and not only one alone, which
alone can be attributable to the alleged dragging. It was submitted that the
rest of all the nine injuries, such as, severing of the neck at the level of
the 5th cervical vertebra were incised wounds with which the appellants were
not concerned as these incised wounds cannot be attributed to the dragging of
the trunk of the deceased or his pulling from the scooter. It was strenuously
contended that had it been a case of dragging as alleged by the prosecution,
there would have been many more injuries than only 3" scratch on the right
arm of the deceased which also does not find mention in the inquest report
which further shows that it was either not visible or was considered
inconsequential by S.I. Din Dayal Pandey (PW-6) to be mentioned in the inquest
report prepared immediately by him. The impugned judgment of the High Court, it
was contended, is based on no evidence as the testimony of Suresh Kumar (PW-5)
has been referred to and relied upon without referring to the testimony of the
Investigating Officer which shows the material contradictions and the false and
over implication of the appellants, on account of the enmity. It was contended
that Suresh Kumar (PW-5) was an interested witnesses being the nephew of the deceased.
There was enmity between the parties. It was pointed out by learned counsel
that Suresh Kumar (PW-5) did not produce the medical prescription or the
medicines though it was stated by him that he had gone to the market to
purchase medicines and was returning home after purchase thereof. Further, it
was pointed out that it was an improbability that Suresh Kumar (PW-5), a third
person would be given a lift on a scooter, meant for two persons. We are
considering a case of rustic villagers. It also cannot be ignored that in large
number of cases, the investigation is neither perfect nor scientific. If the
Investigating Officer does not ask a witness to produce the medicines or the
prescription or the cash memo showing payment for the purchase of medicines,
the witness on his own would not produce it. There is nothing abnormal in a
small place like the one with which we are concerned, to give a lift to the
third person and that too to nephew at the night time.
We
have carefully and minutely examined the record including, as earlier stated,
the evidence of Suresh Kumar (PW-5) read with Santosh Kumar (PW-1) and Ram Briksha
Mahto (PW-2). Their evidence inspires confidence. It was natural for Ram Briksha
Mahto not to name the persons who were dragging the headless body because he
did not know them. On all material aspects, the testimony of these witnesses is
trustworthy and reliable. It is not the law that the conviction cannot be based
on the testimony of relations. That alone cannot be the ground to over win the
conviction. The scratch injury, according to the testimony of the Doctor, is
possible as a result of dragging. The non-mention of it by the Investigating
Officer in the inquest report is of no consequence, in the light of other
evidence on record. The High Court seems to be right in its conclusion that
when a large number of persons were dragging the trunk after catching hold of
the same, only a small portion may be touching the ground as a result whereof,
there may not be a large number of injuries on account of dragging. Another
factor which deserves to be noticed is that the Sessions Court, on perusal of
the case diary, has recorded that the Investigating Officer was deliberately
trying to help the defence. The contention that was urged in this regard before
the Sessions Court and also before us was that the inquest report having been
held at 11.15 p.m. and the statement/furdbeyan recorded at 11.30 p.m., inquest
report should be treated as the FIR and not the FIR registered on the basis of
the Furdbeyan and, therefore, the mention of the name of the appellants therein
deserves to be ignored. The Court of Sessions noticed, on perusal of the case
diary, that it appears that Investigating Officer first recorded the Furdbeyan
and thereafter held the inquest on the dead body of the deceased, but recorded
in the case diary, the time of recording of the Furdbeyan as 11.30 p.m. and
that of holding of inquest as 11.15 p.m. in the reverse order to help the
accused. In fact, the case diary shows that the Fardbeyan was recorded earlier
and inquest later and, thus, inquest could not be treated as the FIR.
Similarly, the telephonic conversation also could not be treated as FIR, as
contended, as it was a cryptic information that was received and recorded in
the daily diary regarding the commission of offence.
The factum
of dragging of the headless body stands established from the evidence of record
with corroboration from the sketch map along with the explanatory notes
thereupon showing the collection of fresh blood in huge quantity adjacent to
the scooter and a line of blood on the path of the dragging from the scooter up
to the pond where the trunk of the body was left.
The
manner and the vengeance with which the crime was committed shows that the
accused were not bothered about others watching them and, therefore, the
submission that the accused who were large in number having not caused any
injury to Ram Briksha Mahto and Suresh Kumar would show the improbability of
their presence on the scene of occurrence, has no substance.
The
cases of appellant No.1 Mundrika and appellant No.5 Ram Rup Mahto, cannot be
treated differently. For the reason already noticed earlier, we are unable to
accept the submission that the decision of the High Court is based on no
evidence.
As a
result of the aforesaid discussion, finding no illegality in the judgment, the
appeal is dismissed.
..............................,J.
[U.C. Banerjee]
..............................,J.
[Y.K. Sabharwal]
April 29, 2002.
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