CASE NO.:
Appeal (crl.) 701 of 1993 PETITIONER:
MUNDRIKA MAHTO & ORS.
Vs. RESPONDENT:
STATE OF BIHAR DATE OF JUDGMENT: 29/04/2002 BENCH:
U.C. Banerjee & Y.K. sabharwal JUDGMENT:
Y.K. Sabharwal, J.
The murder of deceased Ramanand Mahto was committed in a ghastly manner. The head o f the deceased was severed from the trunk. 13 persons were charged for the offence incl uding the appellants who were six in number. One out of 13 - Shyam Narain Mahto @ Nanhki Ma hto was acquitted by the Sessions Court. Three of them - Rishi Mahto, Asmani Mahto and Anan d Lal Mahto were acquitted by the High Court.
The special leave petitions filed by three of the accused - Lachhu Gaderi, Ramchandr a 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 mai ntained.
The prosecution case, in brief, is that the deceased was riding a scooter and Ram Br iksha 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 stoppe d the scooter and gave lift to him. The time was between 10.30 p.m. to 10.45 p.m. When the y reached in front of tea stall of Lalan Mahto situated at Begampur Mandai Mohalla, one pers on who was sitting on a thella (handcart) blocked the road with it the moment the scooter re ached near the said tea stall. All of a sudden, 10 to 15 persons came and pulled the deceas ed from the scooter. Lachhu Gaderi with Dab and Ramchandra Gaderi with Bhujali started assa ulting the deceased. Dab and Bhujali are sharp edged weapons. The accused thrashed the dec eased 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 reac hed 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 11.0 0p.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 stateme nt of Suresh Kumar was recorded at about 11.30 p.m. The names of the appellants were mentio ned in the FIR. Ramchandra Gaderi and Lachhu Gaderi have said to have chopped of the head o f the deceased. Other accused are said to have pulled down the deceased from the scooter an d dragged the trunk and threw it in a pool of water. They are said to have caught hold of t he deceased while Lachhu Gaderi and Ramchandra Gaderi were chopping of the head. Accused Su bhash kept the severed head of the deceased in a plastic bag. Accused Mundrika is said to h ave extinguished the light. Santosh Kumar is said to have reached the place of occurrence w hen the trunk of his father was being dragged and he is the eye witness from the stage of th e dragging whereas Ram Briksha Mahto and Suresh Kumar have said to have watched the entire o ccurrence. The conviction of Lachhu Gaderi, Ramchandra Gaderi and Subhash has been fina lly 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 ho use 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 block ed the road by thela and the deceased had to stop the scooter and then 14-15 persons came th ere 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 som eone, light was put off and headless body was dragged and thrown in a pit full of water. Th e light was put off by accused Mundrika. On raising alarm, Santosh Kumar and other villager s gathered at the place of occurrence and the accused fled therefrom.
Learned counsel for the appellants, Mr. Lalit, strenuously contended that the fact t hat Ram Briksha Mahto (PW-2) has named Ramchandra Gaderi and Lachhu Gaderi and not the appel lants who have only been named by Suresh Kumar (PW-5) who is an interested witness, the conv iction 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 K umar (PW-5) and Santosh Kumar (PW-1). The testimony of Ram Briksha Mahto (PW-2) is most nat ural, trustworthy and reliable. The fact that this witness has named the two accused as afo resaid 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 st atement 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 o f other accused from the advocate. It is important to bear in mind that within about 15 min utes of the commission of the offence, the Police party arrived at the scene and within 15 m inutes thereof, the statement of Suresh Kumar naming the appellants was recorded. Under the se 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 identifi ed all the accused, the contention of Mr. Lalit is that being an interested witness, the con viction 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 te stimony 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 bee n 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 rec orded 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 ot her or there is slight variation in the role would not attributed, that by itself will not r esult 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 dis credit 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 alon e, 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 ver tebra were incised wounds with which the appellants were not concerned as these incised woun ds 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 th e prosecution, there would have been many more injuries than only 3" scratch on the right ar m 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 judgm ent 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 implica tion 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 th e 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 villa gers. 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 medicine s, 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 evidenc e 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 aspe cts, the testimony of these witnesses is trustworthy and reliable. It is not the law th at the conviction cannot be based on the testimony of relations. That alone cannot be the g round to over win the conviction. The scratch injury, according to the testimony of the Do ctor, 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 we re 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 dr agging. 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 he lp 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 F IR registered on the basis of the Furdbeyan and, therefore, the mention of the name of the a ppellants 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 ther eafter held the inquest on the dead body of the deceased, but recorded in the case diary, th e 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 Fardbe yan was recorded earlier and inquest later and, thus, inquest could not be treated as the FI R. Similarly, the telephonic conversation also could not be treated as FIR, as contende d, as it was a cryptic information that was received and recorded in the daily diary regardi ng the commission of offence.
The factum of dragging of the headless body stands established from the evidence of record w ith 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 t he 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 accus ed were not bothered about others watching them and, therefore, the submission that the accu sed who were large in number having not caused any injury to Ram Briksha Mahto and Suresh Ku mar would show the improbability of their presence on the scene of occurrence, has no substa nce.
The cases of appellant No.1 Mundrika and appellant No.5 Ram Rup Mahto, cannot be treated dif ferently. For the reason already noticed earlier, we are unable to accept the submission th at 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.