LAW FOR ALL : set aside the judgment of conviction of Mihir and Prabhat under Section 302 read with Section 34 of the Code and the order of sentence under the aforesaid provisions is also set aside. As we find from evidence of the medical professionals that injuries on Kasi Ram and Premchand were simple in nature, judgment of the High Court on their conviction and sentence under Section 325 of the Code is also set aside. 24 We also set aside the conviction and sentence of these two appellants under Section 307 of the Code.

Friday, January 29, 2021

set aside the judgment of conviction of Mihir and Prabhat under Section 302 read with Section 34 of the Code and the order of sentence under the aforesaid provisions is also set aside. As we find from evidence of the medical professionals that injuries on Kasi Ram and Premchand were simple in nature, judgment of the High Court on their conviction and sentence under Section 325 of the Code is also set aside. 24 We also set aside the conviction and sentence of these two appellants under Section 307 of the Code.

NonReportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.2223 OF 2021

(Arising out of Petition for Special Leave to

Appeal (Criminal) Nos.89738974 of 2019)

MIHIR GOPE ETC. …APPELLANTS

VERSUS

THE STATE OF JHARKHAND …RESPONDENT

J U D G M E N T

ANIRUDDHA BOSE, J.

Leave granted.

2. Anil Mahto and Jatu Mahto had died from injuries

received in consequence of assaults on them on 20th

August, 2005 over a land related dispute. Certain other

members of the appellant’s family were also injured on

account of assault as a result of the same dispute. The

appellants are two sons of one Manohar Gope, with

whom the dispute had arisen. The cause of the dispute

with the members of the deceased victims’ family is

specifically related to the construction of a hut. The

prosecution’s case is that certain members of the Gope

family were the assailants. The appellants before us are

Mihir Gope (in Petition for Special Leave to Appeal (Crl.)

No.8973 of 2019) and Prabhat Gope (in Petition for

Special Leave to Appeal (Crl.) No.8974 of 2019). They

have been held guilty by the Trial Court (Additional

Sessions Judge, Fast Track CourtIV, Bokaro) for

committing offences under Sections 341, 307, 325, and

302 read with Section 34 of the Indian Penal Code, 1860

(the Code). The Trial Court sentenced the two appellants

to undergo rigorous imprisonment for life for committing

offence under Section 302 of the Code, simple

imprisonment for a month in relation to offence under

Section 341 of the Code, rigorous imprisonment for 5

years for offence under Section 325 of the Code, and

rigorous imprisonment for 7 years for offence under

Section 307 of the Code. The sentences had been

directed to run concurrently by the Trial Court.

Altogether five persons including the two appellants were

tried for the offences initiated by a fardbeyan of one Kasi

Ram Mahto on 20th August 2005, being the date of

occurrence of the offence. In the depositions as

reproduced in the paperbook, he has been referred to in

some places as Kari Ram. Similarly, the deceased victim

Jatu Mahto has been referred to as Jadu, Jethu, Jattu

and Indu by different witnesses. We shall, however, refer

to them as Kasi Ram and Jatu in this judgment, ignoring

these discrepancies. None of the parties has raised any

question or dispute on this count. On the basis of the

said fardbeyan, First Information Report was registered

on the same date in Pindrajora police station of Bokaro

district in the State of Jharkhand. In this judgment, we

shall also be referring to the accused persons as also

victims and members of their family by their first names

only. Kasi Ram himself was injured in the assault. He

was examined as Prosecution Witness no.12 in the trial.

Major part of the assault on the members of the Mahto

family, particularly on Anil, Jatu and Kasi Ram was

attributed to Manohar in the fardbeyan and the

prosecution witnesses have broadly corroborated the

content of the fardbeyan. The High Court, in appeals by

the four convicted accused persons, sustained the

judgment of conviction and orders of sentences of these

two appellants. The judgment of conviction of one of the

accused persons, Usha Devi (wife of Mihir), was set aside

by the High Court. The decision of the High Court was

delivered on 10th October, 2018.

3. The fardbeyan was recorded at Bokaro General

Hospital (BGH). It was disclosed therein that Kasi Ram,

the informant, with his wife Puna Devi had reached the

place of occurrence at Obra Mouza from their place of

residence at Bokaro on receiving a phone call from his

brother Premchand (PW11). The phone call conveyed

that Manohar had constructed a hut on the land of the

informant. Jatu, Anil, Premchand, Puranchand,

Dakshineshwar, Mukteshwar and Vijay all members of

the Mahto family had also reached the place of

occurrence when Kasi Ram and Puna Devi reached the

spot. On reaching the place of occurrence at about 8 a.m.

on that date, they found a hut with dalikhapra (earthen

rooftiles) on the land in question. Substantial evidence

was led before the Trial Court on title or ownership of the

land on which the hut was constructed. But that factor is

not of much relevance so far as the present appeals are

concerned, except that the construction of the hut

formed the genesis of the dispute and could be related to

motive of the crime. Manohar, the main assailant along

with his sons Mihir, Prabhat and Kailash were also at

the place of occurrence, as it transpires from the

evidence of Kasi Ram and other prosecution witnesses.

There was exchange of words mainly between Manohar

and Kasi Ram, after which Manohar had attacked Anil on

his head with an iron rod, as a result of which Anil

collapsed on the ground and became unconscious. On

the informant’s attempt to rescue Anil, he was also

assaulted by Manohar on his hands, head, and back. As

per prosecution evidence, the three sons of ManoharMihir (first appellant), Prabhat (second appellant) and

Kailash were supplied with a tangi (a variant of axe),

sawal (crowbar) and a gupti (a longish sword) by Usha

Devi. Before the assault started, Kasi Ram wanted

Manohar to go to the police station with him, presumably

to sort out the dispute, but Manohar refused to go there.

Manohar had asserted that it was his land. It was at that

stage Manohar assaulted Anil on his head with the iron

rod. As regards the sequence in which the assault took

place, Kasi Ram’s evidence is that when “Indu went to tie

Anil with towel then Manohar assaulted him on head

with rod and he became injured”. The name “Indu”, as

has been recorded in the deposition of Kasi Ram (as it

appears in the paperbook) obviously refers to Jatu. In the

sequence of events narrated by the other eyewitnesses,

being PW2, PW3, PW4, PW5, PW7 and PW11, this

particular victim has been referred to as Jatu.

4. Prosecution evidence was accepted by the Trial

Court on the aspect of description of assault by the

accused persons which resulted in death of Anil and

Jatu and also resulted in injuries to Kasi Ram,

Premchand and Puranchand. On his plea of juvenility,

the case of Kailash was separated and sent to the

Juvenile Justice Board. Usha Devi was let off by the High

Court on the reasoning that there was no allegation of

assault by her. Anil had passed away on 20th August,

2005 itself at BGH, whereas Jatu passed away on the

next day, i.e. 21st August, 2005. The injured persons

were initially taken to Chas General Hospital and after

initial treatment, referred to BGH. The former has been

described as the referral hospital in course of the

proceedings before the Trial Court and the High Court.

5. In the First Information Report, Manohar and his

three sons, Mihir, Prabhat and Kailash were named as

accused persons. After investigation, chargesheet was

submitted arraigning four of them as also Usha Devi as

accused persons. Records pertaining to Kailash were

sent to the Juvenile Justice Board. All four were

convicted and sentenced to imprisonment by the Trial

Court. We have already indicated the sentence imposed

on them.

6. The prosecution examined altogether sixteen

witnesses. Seven among them, being Puna Devi (PW2),

Puranchand (PW3), Vijay Kumar (PW4), Mukteshwar

(PW5), Dakshineshwar (PW7), Premchand (PW11) and

Kasi Ram (PW12) deposed as eyewitnesses. The autopsy

surgeon Dr. Pramod Kumar, who was examined as PW9

attributed the cause of death of the two deceased victims

to severe head injuries and excessive bleeding leading to

shock and cardio respiratory failure. In the case of Jatu,

blood coagulate was found in pia and dura mater of skull

leading to shock and cardio respiratory failure. On

dissection of Anil’s skull, blood clots in “profuse amount”

were found in between pia and dura mater, i.e. the

membranes that envelop the brain and spinal cord and

separate them from the walls of their bony cases (skull

and vertebral column). External injury of Anil, as per

deposition of PW9 was “lacerated wound with fracture of

occipital bone size 4½”

X 1” bone deep”. Jatu’s external

injuries were “fracture of occipital bone with swelling;

fracture of left parietal bone with lacerated wound………”.

PW13, Dr. Shishir Kumar Singh Munda had examined

Premchand (PW11, injured witness) and found his

injuries to be simple in nature caused by hard blunt

object. There were lacerated wounds on his left hand and

scalp, right fronto parietal region 2” X 1” X 1/3”. The two

other medical witnesses were Dr. Dhananjay Rajak (PW14) and Dr. Narendra Kumar Das (PW15). Dr. Rajak had

examined Anil and Jatu on the same day at BGH. He

found, in case of Anil, a stitched wound on occipital

parietal area 4” long. In case of Jatu, Dr. Rajak has

deposed that he found “1 stitched wound on occipital

area 3” long”. The injuries in both cases were attributed

to hard blunt object by the PW14. In case of

Premchand, he referred to the following injuries in his

statements made in course of examination :

“i. contusion left shoulder 3” X 1”

ii. contusion scapular left 8” X 1”

iii. contusion scapular region right 8” X 1/2”.

Another contusion 6” X 1”

iv. stitched wound left hand.”

The injuries of Premchand were found to be simple

in nature caused by hard blunt substance by Dr. Rajak.

Dr. Narendra Kumar Das (PW15) was the head of the

department of Neurosurgery at BGH at the material point

of time. He assessed the injuries of Anil and Jatu to be

grievous. Injury of Premchand, according to him, was

simple in nature and possibly caused by a hard and

blunt object. So far as injuries of Kasi Ram are

concerned, Dr. Shishir Kumar Singh Munda (PW13)

deposed that he had lacerated wound on right parieatal

region and on his right palm. According to this medical

witness, both the injuries were simple in nature and

caused by hard blunt objects.

7. The assessment of injuries of Jatu, Anil and

Premchand by Dr. Narendra Kumar Das would appear

from the following part of his deposition:

“1. On 20.08.05 I was posted at BGH in

same capacity. Patient Mr. Jethu Mehto

was seen and treated by me. He was

treated for severe head injury.

2. CT scan of brain was done.

CT scan no. 22305 dated 20.08.05.

CT scan shows multiple intracelebral

hemorrhage in the left temproperital

region with fracture of left parital bone.

The nature of injury was grievous. This

report is prepared and signed by me.

Mark it as Ext. 7/5.

3. The injury may be caused by hard and

blunt object.

4. On the same day I had examined Anil

Kr. Mahto. His hospital number was

13538. He was treated for severe head

injury. CT scan brain was done. Number

is 22306 dt. 20.08.05. CT Scan shows

multiple intra cerebral hemorrhage with

brain edema and fracture of left parital

and occipital bone. Nature of injury was

grievous possible by hard and blunt

object.

5. This report is prepared by me and

signed by me mark it as Ext. 7/6.

6. On the same day I had examined

Premchand Mahto. He was treated for

multiple injuries.

i. Head injury : CT Scan brain was

done. Number is 23307 dt.

20.08.05. CT scan shows no

evidence of intra cerebral

hemorrhage or fracture. The

nature was simple.

ii. Compound fracture of IInd

metacarpal bone left hand. Nature

was grievous possibly by hard and

blunt object. This report is

prepared by me. Mark it as Ext.

7/7.

7. The injury on the person of Jethu

Mahto may be caused if someone fall on

heavy object. There is no CT Scan

separate with this report. On the person

of Anil Mahto also the injury may be

caused due to fall, so with Premchand

Mahto.”

(quoted verbatim)

8. The depositions of the eyewitnesses for the

prosecution broadly gives the description of events that

corresponds with the fardbeyan, but there are

discrepancies on the role of each of the accused persons

in effecting specific strikes on the victims individually.

Prosecution also sought conviction on the basis of a

confessional statement of Manohar. Prosecution case is

that Manohar’s statement led to the recovery of a sawal

and a stick from his house. There were two seizure

witnesses Laxmi Devi (PW1) and Gulichand Mahto

(PW10). The latter was presented by the prosecution as

seizure witness of bloodsoaked soil. At this stage,

however, his deposition has insignificant impact on these

appeals as prosecution has relied upon other direct

evidences, primarily eyewitness account and evidence of

the medical practitioners, and not much turns in these

appeals on recovery of bloodsoaked earth. Laxmi Devi is

the wife of Prabhat Gope. She was presented as a

witness by the prosecution on seizure of the sawal and

the stick from Manohar’s house. In her deposition,

however, she has stated that the paper on which she had

signed was blank.

9. Two witnesses were examined by the defence, Netai

Gope and Shambhu Gope. Both of them deposed as

eyewitnesses. As recorded in the Trial Court’s judgment,

they sought to attribute the injuries to acts on the part of

the informant and his family members only. It was stated

by them that the informant and his brothers had

gathered near the hut armed with several weapons, the

likes of which we have already referred to. When they

tried to pull down the tiled hut, the defence witnesses

stated, some of the roof tiles fell on the members of the

informant’s side and that was the cause of the injuries.

The appellants sought to buttress this defence by

drawing our attention to the depositions of PW9, PW13

and PW15, all medical professionals. They stated in

their examination that the injuries treated or analysed by

them could be caused due to fall. But this opinion of the

medical practitioners was on probable cause. The story of

accidental injuries caused by the informant’s side

themselves however was not believed by either the Trial

Court or the High Court. We do not find any flaw in the

reasoning of the two courts of fact on this aspect.

10. The question, in the given context, which falls for

determination is as to whether these two appellants can

be convicted under the aforesaid provisions of the Code.

It is a fact that all the eyewitnesses were related to the

victims, but for that very reason we cannot disbelieve

their version, particularly since the Trial Court and the

High Court found no reason to reject their evidence. The

story of the defence that the injuries of the victims were

unintentionally inflicted by falling tiles when the

members of the victims’ family were dismantling the

structure does not inspire confidence. The prosecution

witnesses have been consistent and uniform in their

version that it was Manohar and his sons who had

caused the injuries.

11. The appellants before us are Mihir and Prabhat. The

evidence of the seven prosecution witnesses, who have

deposed as eyewitnesses, being Puna Devi (PW2), wife of

Kasi Ram (the informant), Puranchand (PW3), an

injured witness, Vijay Kumar (PW4), Mukteshwar (PW5), Dakshineshwar (PW7), Premchand (PW11) and Kasi

Ram (PW12) are uniform in that Manohar had dealt the

first blow to Anil, followed by a blow on Kasi Ram and

thereafter on Jatu at the time the latter was attending to

injured Anil. The seven witnesses are also uniform in

saying that Manohar dealt the blows to these three

victims using an iron rod.

12. So far as Mihir and Prabhat are concerned, evidence

of Kasi Ram (PW12) is that Manohar assaulted Anil first,

then him and thereafter Jatu. He, in his deposition has

referred to sons of Manohar as “boys of Manohar”, and

assault by them has been specified to be on Puranchand

and Premchand. PW2 has also ascribed the blows on

Anil and Jatu to Manohar. At the same time, she has

stated that Mihir had assaulted Anil and Jatu on their

heads. Assault on Anil and Jatu has also been ascribed

to Prabhat. PW2 and PW5 have stated that Usha Devi,

whose conviction was set aside by the High Court had

supplied an axe to Mihir, sawal to Prabhat, and a gupti

to Kailash. Puna Devi has deposed that Mihir as well as

Prabhat had assaulted Anil, Jatu, Premchand,

Puranchand and Kasi Ram (her husbandthe informant).

Puranchand’s (PW3) evidence is that Mihir, Prabhat and

Kailash assaulted Anil with an axe on the back of his

head. He also deposed that all the four accused had

assaulted Anil, Premchand and Jatu. To Mihir, he

attributed assault by an axe. Vijay Kumar (PW4) has

attributed collective assault to three sons of Manohar on

Jatu, Premchand and Puranchand. He also referred to

strikes by Manohar on Anil, Kasi Ram and Jatu.

Evidence of Mukteshwar (PW5) is that Mihir assaulted

Anil and Jatu with the axe on their heads whereas

Prabhat with another brother assaulted Premchand and

Puranchand. Dakshineshwar’s (PW7) narration of the

assault in his deposition is also broadly similar whereas

Premchand (PW11) has stated that Jatu was attacked by

Mihir and Manohar using a tangi and Puranchand and

himself were attacked by Kailash and Prabhat with iron

rod. The depositions of the prosecution witnesses thus

are not uniform on the aspect of the role of these two

appellants in assaulting Anil and Jatu. Usha Devi,

against whom allegation was of supply of weapons to

Mihir, Prabhat and Kailash, has been acquitted by the

High Court.

13. Learned counsel for the appellants has stressed on

the fact that injury records of the referral hospital were

not produced or made exhibits at the stage of the trial.

But from the depositions of the four medical

practitioners, injuries of Anil, Jatu, Kasi Ram and

Premchand are revealed. There is no medical evidence of

any injury having been caused to Puranchand. While we

analyse the evidence relating to injuries of Anil and Jatu,

we find that the autopsy surgeon (PW9) found only one

injury on the head of Anil being fractured occipital bone.

This was a lacerated wound. So far as Jatu is concerned,

we find from his deposition that he had a fractured

occipital bone with swelling and fracture of left parietal

bone with lacerated wound. Dr. Shishir Kumar Singh

Munda (PW13) had examined Premchand and found

lacerated wound on his left hand as also on his scalp in

the right fronto parietal region. He also examined Kasi

Ram and found two injuries, lacerated wound on right

parietal region and lacerated wound on the right palm.

Dr. Dhananjay Rajak (PW14) had examined Anil on the

day of occurrence at about 11.30 a.m. in the casualty

department of BGH. His deposition also reveals that Anil

had a stitched wound on the occipital parietal area. On

Jatu, he found a 3” long stitched wound on the occipital

area. As regards injuries of Premchand, he observed

contusions and we have referred to his observations in

earlier part of this judgment. Dr. Narendra Kumar Das

(PW15) had examined Jatu, and in his deposition he has

stated that his CT scan showed multiple intracerebral

haemorrhage in the left temporoparietal region with

fracture of the left parietal bone. As regards probable

cause of the injuries, PW9 stated that injury to Anil

could be caused if he had fallen on a hard surface. Jatu’s

could have been caused if some heavy blunt object fell on

his head. Cause of the other injury to Jatu, according to

him, could occur if someone smashed on small or heavy

substance. Dr. Narendra Kumar Das (PW15) on the

other hand interpreted Jatu’s CT scan in the following

manner:

“CT scan shows multiple intracelebral

hemorrhage in the left lemproperietal region

with fracture of left partial bone…”

14. It would be apparent from the evidence of the

medical practitioners that there was only one injury on

Anil’s head whereas on Jatu’s head, there is a probability

that he suffered two injuries. But the injuries on Jatu’s

head cannot be said to have been caused by either axe or

tangi, which are sharp edged weapons. Even if we

proceed on the basis that both axe and tangi have blunt

sides and such blunt sides were used to strike, that very

fact cannot establish involvement of both Mihir and

Prabhat in striking Anil and Jatu. Thus, we do not think

the Trial Court and the High Court had rightly concluded

on involvement of Mihir and Prabhat in assault of Anil

and Jatu so as to implicate them for murder under

Section 302 read with Section 34 of the code. The eye

witnesses’ accounts, as we have already observed shows

element of exaggeration and inconsistency in implicating

both Mihir and Prabhat for their strikes on Jatu. There is

apparent inconsistency in the eye witness account in

describing the assaults by these two appellants on Anil

and Jatu. PW2 has attributed assault on both Anil and

Jatu to Manohar and all his sons. This is a very

generalised description. PW3 has stated that Manohar,

Mihir and Prabhat (collectively referring to them with the

pronoun “they”) had assaulted Jatu. P.W. 4’s evidence on

assault against Anil and Jatu is not specific, but general.

PW5 has stated that Mihir had assaulted Anil and Jatu,

apart from Manohar’s strikes. PW7’s deposition is that

both Mihir and Manohar struck Jatu. PW11 attributes

strike by Mihir on Jatu but he has not implicated

Prabhat in any form of assault on Anil or Jatu. Thus, if

we compare the number of injuries on Anil and Jatu as it

transpires from the evidence of medical practitioners,

which is three at the most, they do not match with the

number of strikes made by Manohar, Mihir and Prabhat,

as stated on oath by these witnesses. In our opinion, we

cannot rely on the account of assault given by these

witnesses to the extent they relate to strikes by Mihir and

Prabhat. Barring PW12, the account of the incident

narrated by the other eyewitnesses tend to be based on

overall impression of the strikes rather than factual

narration of events. We consider it safer to rely on the

evidence of PW12, who has given specific and

trustworthy account of the individual assaults. We do not

think the prosecution has been able to prove beyond

reasonable doubt involvement of these two appellants,

Mihir and Prabhat in delivering the blows to Anil and

Jatu.

15. We also find that though there were assaults by

Manohar, Mihir and Prabhat prosecution has failed to

establish on the basis of evidence that these two

appellants shared common intention with Manohar.

Their strikes on the victims can be segregated from those

made by Manohar, as it transpires from evidence. Neither

Mihir nor Prabhat could be held to have been involved in

assault on Anil and Jatu, which forms the basis of

conviction of the appellants under Section 302 of the

Code.

16. Relying on a decision of a coordinate Bench, Manoj

Kumar vs State of Himachal Pradesh [(2018) 7 SCC

327], it was urged on behalf of the appellants that the

offence of the appellants could be brought within

exception 4 to Section 300 of the Code and Part II of

Section 304 thereof, could be applied to the appellants.

But having regard to what we have held, the ratio of that

decision does not apply in the facts of this case.

17. We, accordingly, set aside the judgment of conviction

of Mihir and Prabhat under Section 302 read with

Section 34 of the Code and the order of sentence under

the aforesaid provisions is also set aside. As we find

from evidence of the medical professionals that injuries

on Kasi Ram and Premchand were simple in nature,

judgment of the High Court on their conviction and

sentence under Section 325 of the Code is also set aside.

We also set aside the conviction and sentence of these

two appellants under Section 307 of the Code. We hold

so primarily on the basis of depositions of the three

medical experts, PW13 (Dr. Shishir Kumar Singh

Munda), PW14 (Dr. Dhananjay Rajak) and PW15 (Dr.

Narendra Kumar Das). Opinion of PW13, who examined

Premchand and Kasi Ram, found both their injuries to be

simple, formed of lacerated wound. In examining

Premchand, PW14’s opinion as regards nature of injury

was the same. It was simple injury. Premchand’s CT

scan, as explained by PW15, did not show any evidence

of intracerebral hemmorhage or fracture. He also found

such injury to be simple. Considering the weapons of

assault Mihir and Prabhat were meant to have had used

in inflicting such injuries, and the nature of injuries they

caused on Kasi Ram and Premchand, we do not think

the two appellants had the intention or knowledge that

their acts could have had caused death of Kasi Ram or

Premchand. We also do not find any evidence of

commission of offence under Section 341 of the Code.

None of the eyewitnesses has stated in course of their

examination that Mihir or Prabhat had wrongfully

confined them. The appellants are accordingly acquitted

of charges under all the aforesaid provisions.

18. In our opinion, however, there is sufficient evidence

against Mihir and Prabhat of voluntarily causing hurt by

the instruments we have referred to. We have discussed

the evidence based on which we come to this conclusion.

We hold both the appellants guilty of committing offence

under Section 324 of the Code. We impose sentence of

three years rigorous imprisonment on both Mihir and

Prabhat for committing offence under the aforesaid

provision.

19. In the event the appellants or any one of them have

served out the sentence of three years of rigorous

imprisonment imposed on them in this judgment, such

appellant or the appellants, as the case may be, shall be

set free forthwith, unless the custody of the appellants or

any one of them is required in any other case. Otherwise,

the appellants or any one of them, as the case may be,

shall serve out the remaining term.

20. The appeals are partly allowed, in the above terms.

Pending application(s), if any, stand(s) disposed of.

…..……………..J.

(N.V. Ramana)

..…..……………..J.

(Surya Kant)

……..……………..J.

(Aniruddha Bose)

New Delhi,

Dated: January 8, 2021

LAW FOR ALL

LawforAll

advocatemmmohan

WELCOME TO LEGAL WORLD

Friday, January 29, 2021