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PETITIONER: MAHESH MAHTO & ANR.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       21/08/1997

BENCH: M.M. PUNCHI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      This Criminal  Appeal by  Special  Leave  is  filed  by Mahesh Mahto  (A-2) challenging  the conviction and sentence passed under  Section 302,  201/34 IPC.    Originally  Umesh Mahto (A-1),  Mahesh Mahto  (A-2) and  Ramdulari Devi  (a-3) were tried  for an  offence punishable  under Sections  302, 201/34 IPC for committing the murder of Meera Devi, the wife of Umesh  Mahto (A-1).  Meera Devi was married to A-1 in the year 1982  and Duragam (second marriage) took place in month of Baishakh, 1983.  It is alleged by the prosecution that at the time  of Duragman  A-1 demanded  a scooter  but the said demand  could   not  be   fulfilled  because   of  financial difficulties of  the brother  of  Meera  Devi  who  however, assured that  he will  give a  bi-cycle.   Accordingly a bi- cycle was  given to A-1.  Despite this A-1 and other accused were not  satisfied and  they made  a further demand of some furniture articles.  The brother of Meera Devi was unable to meet these demands at that time but, however these furniture items were supplied to them at a later stage.  It is alleged by the  prosecution that  A-1, A-2  and A-3  were not  fully satisfied and  were causing  harassment to  Meera Devi.  The brother of  Meera Devi  sought to  patch up  the differences through a  mediator even then things could not be sorted out and harassment  continued.   It is  further alleged  by  the prosecution that on 12.9.1984 Ram Vinod Prasad went t Ramdeo Mahto (Mama)  to pay  him the  cost of  furniture items  and thereafter both  of them went to the house of A-1 to request him and  his family  members not to harass and assault Meera Devi.   When they enquired about Meera Devi.  Biseshar Mahto told him that she is not in the house since last three days. When this  information was  given to Ramdeo Mahto he came to the village  of Umesh  Mahto (a-1)  and made enquiries about Meera Devi.   None  of the  inmates was  able  to  give  any information about  her.   When enquiries  were made  in  the village, an  old lady  who was  picking up  cow dung told in that on  Sunday last all the three accused persons committed murder of  Meera Devi  and threw  her dead body in the river Gandak. Ram  Vinod Prasad  thereafter went to Khanpur Police Station and  lodged the report (Ext.2).  The FIR (Ext.5) was

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drawn up  and investigation  commenced.   The  Investigating agency could  not trace  the dead body of Meera Devi despite its search,  however,  Ram  Vinod  Prasad  and  his  brother continued the  search and  ultimately the dead body of Meera Devi was  found at  the bank  of river  Gandak on 15.9.1984. The information  in that  behalf was  sent to the police who arrived there  and prepared  the inquest  report.   The dead body was  sent to  Sadar Hospital Samastipur for post mortem examination.   After completing  the investigation the three accused persons  were  put  up  for  trial  for  an  offence punishable under Sections 302, 201/34 IPC. (2)  The prosecution case entirely rests on circumsstantital evidence and to prove the same it examined various witnesses ad also  placed on  record the  documentary evidence.    Dr. Jamaluddin (P.W.9),  Dr. B.N.  Prasad (P.W.10)  and Dr. K.C. Sinha (P.W.11)  who jointly held the post mortem examination were examined at the trial. (3)  At the  outset it  may  be  stated  that  there  is  no challenge to  the fact that Meera Devi died homocidal death. It is,  therefore, not necessary to refer to the evidence of these three  doctors in details.  Suffice it to say that the team of  doctors  noticed  fracture  of  3rd,  4th  and  5th thoracic ribs  on front  of the  left side  of the chest and found blood  clots on the corresponding inner surface of the chest wall.   Phoracic  cavity was  full of blood clots.  On further dissection middle portion of the left lung was found ruptured.   Stomach was  not containing water.  There was no foreign body in trachea.  Lungs alveoli was not distended in water.   Two nails  of six 1"x2 1/2" respectively were found pierced through  & through  on Rt. dorsum of foot & Rt. hand respectively.   Injuries caused by nails were post mortem in nature.    Nails  had  been  preserved  and  sealed  &  were handedover to  constables.   The antemortem  injuries in the chest were  caused by  hard and  blunt substance  which were sufficient to  cause death in ordinary course of nature, we, therefore, see  no hesitation  in holding that Meera Bai met with a homicidal death. (4)  The Sessions court on appraisal of oral and documentary evidence on record found the appellant and his brother Umesh Mahto (A-1)  guilty for an offence punishable under Sections 302, 201/34  IPC and  accordingly sentenced  both of them to suffer life  imprisonment and  RI for  7 years respectively, However, Ramdulariddevi (A-3) was given the benefit of doubt and came to be acquitted. (5)  The convicted  accused preferred  an appeal to the High Court which  was dismissed  on November  16, 1987.  Both the convicted accused  thereafter filed  Special Leave  Petition through jail  and this  Court vide its order dated 24.4.1989 granted Special  Leave to Mahesh Mahto (A-2), but refused to grant leave  to Umesh  Mahto (a-1) and dismissed his Special Leave Petition. (6)  Meera Devi (now dead) was the wife of Umesh Mahto (A-1) and Mahesh  Mahto (A-2)  is his  younger brother.  It is the prosecution case that A-1, A-2, and A-3 were demanding dowry and other  articles from  the brother  of Meera Devi and for that reason  they were  harassing and  assaulting her.    To prove this story the prosecution relied upon the evidence of Ramdeo Prasad  (P.W.7) who  are brothers  of Meera Devi.  We have gone through their evidence and we find that there is a general allegation  against three accused that they demanded a scooter  and some  other furniture articles.  They further stated that only once the appellant made such demand.  There is no evidence on the record to substantiate the prosecution case that  the  appellant  was  causing  any  harassment  or assaulting Meera  Devi.    The  Courts  hello  have  totally

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overlooked this  fact and has erroneously held the appellant guilty for  committing the murder of Meera Devi with the aid of Section  34 IPC.   Ware  of the considered video that the prosecution has  failed to prove beyond reasonable about the complicity of  the appellant  in committing  the  murder  of Meera DEVI. (7)  What  remains   to  be  considered  is  as  to  whether conviction of  the appellant  under Section  201/34  IPC  is sustainable? To  prove this charge against the appellant the prosecution mainly  relied upon  the evidence  of  Chintaman Mahto (P.W.15).   He  is the resident of another village and has stated  that  he  was  posted  as  an  operator  in  the Irrigation Department  from 1982  to 1984  at Village  Bhore Jairam.   He was  knowing A-1  as he used to go to his house very often.   On  9.9.1984 during night when he had gone for answering the  nature’s call  near the  bound of  the  river Gandak he  saw four  persons carrying  the dead  body on the cot.   It was  a moonlit night and when he flashed his torch he identified  the appellant and his brother Umesh Mahto (A- 1), when he asked them whose dead body it was, they told him that it  was of  some woman  and they  proceeded towards the river Gandak.  They then threw the dead body into the river. Admittedly the  Investigating Officer  has not  recorded his statement under Section 161 Cr.P.C. and for that purpose the protest petition  was filed  by the  informant  against  the Investigating agency.  Several objections were raised to the credibility of  the evidence  of this witness but the courts below  for   the  good  reasons  accepted  the  evidence  of Chintaman  Mahto  (P.W.15)  as  trustworthy,  We  have  gone through the  judgments of  the courts  below as  well as his evidence and  we are  satisfied that  his  evidence  can  be accepted as  far as  the incident  of carrying the dead body towards the  river Gandak  and thereafter  throwing the same into the river.  The conviction of the appellant, therefore, under Section 201/34 IPC must be confirmed. (8)  Coming to the sentence awarded to the appellant for the offence punishable  under Section 201/34 IPC it was urged on behalf of  the appellant that at the time of incident he was 18 years  old and  was staying  with his elder brother Umesh Mahto (A-1).  The possibility that he having been pressed by his brother  A-1 to carry the dead body of Meera Devi cannot be ruled  out.   He may  not have  been able  to disobey his brother, younger  in age  as he  was.  After hearing learned counsel for  the parties  we are of the considered view that in the facts and circumstances of the case sentence of seven years awarded  to the  appellant was  not  justified.    We, therefore, reduce  the sentence  of  the  appellant  for  an offence punishable  under Section  201/34 IPC  to the period already undergone. (9)  In the  result  the  appeal  succeeds  in  part.    The conviction and  sentence  of  the  appellant  under  Section 302/34 IPC  is set  aside and  he is  acquitted of  the said charge.     His  conviction  under  Section  201/34  IPC  is confirmed but,  however, the substantive sentence awarded to him by  the courts  below is  reduced to  the period already undergone.  Ordered accordingly.