Shankar
Mahto & Anr Vs. VS [2002] Insc 322 (31 July 2002)
Shivaraj
V. Patil, B.N.Agrawal. B.N.Agrawal, J.
Appeal (crl.) 196 of 2001
In
these two appeals by special leave, the appellants have assailed their
convictions and sentences awarded by the trial court and upheld by the Patna
High Court.
The
short facts are that on 28th February, 1991 at about 8.00 p.m., when the
informant Liro Kumari- (PW.6) along with her father Doman Mahto, mother Shibo Devi,
sister Shakho Devi and children of her family was sitting near fire at the
outer door of her house, all of a sudden, all the appellants along with accused
Shrilal Sharma, Haro Sharma, Ram Bilash Mahto, Ram Udgar Sharma and 3-4 others
armed with farsas and lathis came to the house and seeing them she and her family
members out of fear ran to the courtyard of the house. The appellants and their
companions following them entered the courtyard. Accused Shrilal Sharma and Haro
Sharma, both of whom were armed with farsas and co- accused Ram Bilash Mahto,
who was armed with lathi, caught hold of Doman Mahto, father of the informant,
and took him to outer door of the house.
Appellants
Harilal Mahto and Jharilal Mahto, who were armed with lathis, caught hold of Shibo
Devi, mother of the informant and appellants Tulbul Mahto and Shankar Mahto,
who were also armed with lathis, caught hold of Shakho Devi, sister of the
informant inasmuch as they were taken to outer door of the house.
The
informant raised alarm and when she came out from her courtyard, she saw that
accused Shrilal Sharma and Haro Sharma were assaulting her father and mother
with farsas and appellants Shankar Mahto, Tulbul Mahto and Sitaram Mahto were
assaulting them with lathis. Appellants Jharilal Mahto, Shankar Mahto and
co-accused Ram Bilash Mahto were assaulting Shakho Devi, sister of the
informant. Doman Mahto, father of the informant, died on the spot and when the
informant raised alarm, accused Shrilal Sharma gave a farsa blow to her in
order to kill her but it caused injury on her left palm. Thereafter the
appellants and their companions lifted the dead body of father of the informant
and her injured mother and sister and took them away. The informant along with
her nephew Arjun Mahto (PW.4) came to the village where they raised alarm on
which the villagers assembled, who, after arranging rickshaw, sent them to Gangor
Police outpost where the fard beyan of informant was recorded by A.S.I.
Dilip
Kumar Singh (PW.1) on the basis of which formal first information report was
drawn up at the concerned police station against twelve accused persons
including the appellants.
Police
after registering the case took up investigation during the course of which
dead body of Shibo Devi, mother of the informant, was recovered from a river
near Sohagi Ghat besides blood stained kurta which Doman Mahto, father of the
informant, was wearing. It transpired during investigation that sister of the
informant, who was assaulted, succumbed to the injuries, but her dead body and
that of her father-Doman Mahto could not be recovered. Upon completion of
investigation, the police submitted charge sheet against all the accused
persons, on receipt whereof, learned Magistrate took cognizance and committed
all the twelve accused persons, including the appellants, to the court of
Session to face trial.
Defence
of the accused was that they were innocent, falsely implicated out of animosity
and no occurrence much less the one alleged had taken place.
During
trial, on behalf of the prosecution several documents were exhibited and eleven
witnesses were examined, out of whom, Satyanarain Mahto (PW.2), Arjun Mahto
(PW.4) and Liro Kumari, informant (PW.6) claimed to be eye witnesses to the
occurrence whereas other witnesses were police officials, seizure witnesses,
medical witnesses and some formal witnesses. Upon conclusion of trial, the
learned Additional Sessions Judge while convicting five appellants of these
appeals and accused Shrilal Sharma and Haro Sharma, acquitted other five
accused persons of all the charges. Accused Shrilal Sharma and Haro Sharma were
convicted under Sections 302, 201 and 148 of the Penal Code and each of them
was sentenced to undergo imprisonment for life and rigorous imprisonment for a
period of five years and two years respectively.
They
were also convicted under Section 364 of the Penal Code but no separate
sentence was awarded. Accused Shrilal Sharma was further convicted under
Section 324 of the Penal Code and sentenced to undergo rigorous imprisonment
for two years. Five appellants of these two appeals were convicted under
Sections 364 and 147 of the Penal Code and each of them was sentenced to
undergo rigorous imprisonment for a period of ten years and one year
respectively. The sentences, however, were ordered to run concurrently. On
appeal being preferred by all the seven accused persons including the
appellants, their convictions and sentences have been upheld by the High Court
with this modification only that the conviction of accused Shrilal Sharma and Haro
Sharma under Section 302 has been converted into one under Section 302/149 of
the Penal Code. Hence, two petitions for grant of special leave to appeal were
filed, one by Shankar Mahto and Sita Ram Mahto, who are appellants in Criminal
Appeal No. 195 of 2001 and the other from jail by accused Shrilal Sharma, Haro
Sharma, Hari Lal Mahto, Jhari Lal Mahto and Tulbul Mahto out of whom the latter
three are appellants in Criminal Appeal No. 196 of 2001.
Petition
for grant of special leave to appeal filed by accused Shrilal Sharma and Haro
Sharma was rejected and leave to appeal was granted only in relation to the
five appellants of these two appeals.
Mr. Khwairakpam
Nobin Singh, learned counsel who appeared as Amicus Curie on behalf of the
appellants in Criminal Appeal No. 196 of 2001 raised three points in support of
this appeal which have been adopted by Mr. Shambhu Prasad Singh, learned
counsel appearing on behalf of the appellants in Criminal Appeal No. 195 of
2001. Firstly, it has been submitted that evidence of the two child witnesses
viz., PWs. 2 and 4, who claimed to be eye witnesses, was rejected by the trial
court on two grounds; (i) that there was no injury report in respect of their
injuries although they claimed to have received injuries by lathi and (ii)
their names were not disclosed by the informant either in the first information
report or in her statement made before the police and the High Court was not
justified in accepting their evidence. So far as first ground of attack for
rejection of their evidence which weighed with the trial court is concerned,
the High Court observed "it is true that PW.2 and PW.4 have stated that
they also received injuries by 'lathis' and PW.4 has also stated that he and
PW.2 along with informant received treatment at hospital but then absence of
injury reports in respect of injuries on PW.2 and PW.4 can at best be a ground
for raising doubt on the point of their receiving injuries. It will not be a
ground to discard their entire evidence." In relation to the second ground
which weighed with the trial court, it would appear from judgment of High Court
that the evidence of these two witnesses has been thoroughly considered by it
and it has been found that they supported the prosecution case, disclosed in
the first information report as well as the evidence of Liro Kumari-informant
(PW.6), in all material particulars.
The
High Court while considering this ground observed "about the presence of
PW.2 and PW.4 at the relevant time at the place of occurrence in the statements
of informant given before the police, we have already discussed that the I.O.
in his evidence has admitted that the informant stated before him that at the
time of occurrence she was sitting near 'ghura' along with her parents, sister
and children of her family and PW.2 and PW.4 though not individually named in fard
beyan are definitely the children of the family of informant. If the informant
in fard beyan as well as in her statement before the police without giving
specific names of PW.2 and PW.4 has stated that at the relevant time children
of her family were also at the place of occurrence it will not negative the
presence of PW.2 and PW.4 at the place of occurrence." In our opinion,
view taken by the High Court was reasonable one, as such we do not find any
merit in the submission of the learned Amicus.
Learned
Amicus next submitted that evidence of Ramo Devi (PW.5) that she identified
dead body recovered from the river to be of her mother Shibo Devi by tattoo
marks on the arms of the body does not inspire confidence because
identification by this means was not possible in view of the fact that such
marks disappear and the doctor (PW.9) did not find any tattoo marks on the dead
body.
While
dealing with this point, the High Court made reference to Modi's Medical
Jurisprudence and Toxicology (at page 29 of Seventh Reprint of Twenty-first
Edition) in which it is stated that the tattoo marks may disappear if pigment
used is vermilion or ultra-marine and if it has not penetrated deep into the
skin.
According
to the evidence of PWs. 2, 5 and 6, both the arms of Shibo Devi, deceased, were
tattooed. The High Court has considered the evidence of PW.5 who identified
dead body of her mother by face, ears, teeth as well and not by tattoo marks
only and her evidence suggests that when the dead body was recovered, face of
the deceased was visible and tattoo marks were present at that time. The High
Court was of the opinion that the fact that according to the evidence of Dr. Rama
Nand Kumar (PW.9) who held postmortem examination on the dead body of Shibo Devi
on 5th March, 1991 at 10.00 a.m., mentioned in the postmortem report that the
dead body was found badly decomposed and he did not find any tattoo marks does
not suggest that when the body was recovered from the river on the previous day
at 4.00 p.m., it was so badly decomposed that the same could not have been
identified by Ramo Devi (PW.5), who is none else but daughter of Shibo Devi and
she, by tattoo marks which were visible at that time, identified the dead body
to be of her mother which was not unusual. We do not find that reasoning of the
High Court suffers from any infirmity. Therefore, this submission as well has
no merit.
Learned
Amicus then submitted that the Investigating Officer Shrinarain Singh (PW.7)
has admitted in his evidence that though he found blood at the place of
occurrence, but did not find any trail of blood around the place of occurrence
which falsifies the evidence of informant PW 6 that after assault when her
father was being carried away by the accused persons, blood was oozing out from
the injuries sustained by the deceased. While considering this question, the
High Court observed "if the blood was found where the deceased was
inflicted injuries and if it has not been found in the way it itself will not
be a ground to disbelieve prosecution evidence which otherwise is trustworthy.
" The High Court further observed that "in the present case, besides
the father of informant who, as alleged, died on the spot, the mother and
sister of informant are said to have been kidnapped by the appellants in order
that they may be murdered. There is consistent evidence of informant, PW.2 and
PW.4 that the appellants after assaulting the mother and sister of informant
lifted them and took away them along with the dead body of father of informant.
The I.O. found blood stains at the place of occurrence. In these circumstances,
if the blood was not found around the place of occurrence, it alone will not be
sufficient to disbelieve the evidence of informant, PW.2 and PW.4".
Learned Amicus could not point out any flaw in reasoning of the High Court.
Moreover, as the prosecution case has been supported in all material
particulars by medical evidence as well apart from other unimpeachable evidence
already referred to by the High Court, we are of the opinion that merely
because the investigating officer did not find any trail of blood, the place of
occurrence cannot be doubted, especially when blood was found there by the
police. This being the position, we do not find any merit in this contention
too.
Mr. Shambhu
Prasad Singh, learned counsel appearing on behalf of the appellants in Criminal
Appeal No. 195 of 2001 while adopting the submissions of the learned Amicus,
made a further submission that identification of the appellants was highly
doubtful as there was no source of identification . In our view, the submission
has been made only to be rejected. Firstly, it would be impermissible for this
Court to go into merit of this point and reconsider the same as by rejection of
Special Leave Petition filed by accused Shrilal Sharma and Haro Sharma, who
were the main accused in this case and whose convictions have been upheld, the
same would be deemed to have been rejected. Apart from that, PWs. 2, 4 and 6
have consistently stated in their evidence that it was a moon lit night. The
appellants were undisputedly known to members of the prosecution party from
before as such their identification by PWs. 2, 4 and 6 in the moon lit night
was quite possible. Moreover, according to the prosecution case and the
evidence of PWs. 2, 4 and 6 in the winter night when the accused persons
arrived at house of the informant, she along with three deceased persons and
children of her family was sitting near fire which was burning at the outer
door of her house. Therefore, otherwise also there could not have been any
difficulty in identifying the appellants in the light of fire as well. This
being the position, we do not find any substance in the submission of learned
counsel appearing on behalf of the appellants in Criminal Appeal No. 195 of
2001.
Both
the learned counsel lastly submitted that sentence of ten years imprisonment
awarded against the appellants be reduced to the period of three years which
they have already undergone. We find that Section 364 of the Penal Code
prescribes two alternative punishments. First, imprisonment for life and
second, rigorous imprisonment for a term which may extend to ten years. In our
view, the trial court has not awarded the sentence of life imprisonment and by
taking a lenient view, awarded the alternative punishment of rigorous
imprisonment for ten years to each of the appellants which has been upheld by
the High Court. Keeping in mind the serious allegations made against the
appellants as well and the present case being a case of murder of three
persons, no interference is called for with the sentence awarded. No other
point having been raised, we do not find any ground to interfere with the well
reasoned judgment rendered by the High Court in which evidence has been
discussed threadbare.
In the
result, the appeals fail and the same are accordingly dismissed.
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