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CASE NO.: Appeal (crl.)  588 of 2005

PETITIONER: Rabindra Mahto & Anr.                            

RESPONDENT: State of Jharkhand                                       

DATE OF JUDGMENT: 06/01/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T  WITH CRIMINAL APPEAL NO. 589 OF 2005 Balram Mahto                                                   ------------Appellant  

                                       Versus

State of Jharkhand                                          ------------Respondent

WITH CRIMINAL APPEAL NO\00531\005\005\005.. \005OF 2006 (Arising out of  S.L.P. (Crl.) NO. 2218 of 2005)

Girish Chandra Mahto  @ Girish Mahto & Ors.                                       --------------Appellants

                                       Versus

State of  Jharkhnd                                         ------------Respondent

P.P. NAOLEKAR, J.

       Leave granted in S.L.P. (Crl.) No. 2218 of 2005

       The accused appellants were convicted and sentenced by the  Additional Judicial Commissioner. The appellants Rabindra Mahto,  Balram Mahto and Lemboo Mahto were found guilty under Section 302  IPC and were sentenced to undergo rigorous imprisonment for life and  to pay a fine of Rs.10,000/- and in default to further undergo rigorous  imprisonment for two years.  The appellants Jag Mohan  Mahto, Fagu  Mahto, Dhananjay Mahto, Huna Mahto and Girish Mahto were found  guilty under Section 302 read with Section 149 I.P.C. and were  accordingly convicted and sentenced to undergo rigorous imprisonment  for life and to pay a fine of Rs.500/- and in default to further undergo  rigorous imprisonment for  one month.    Further appellants Jag Mohan  Mahto  and Lemboo were found guilty under Section 323 IPC and were  convicted and sentenced to undergo rigorous imprisonment for five  months.  All the sentences were directed to run concurrently.  The  appeal preferred by the accused-appellants was dismissed by the High  Court, aggrieved by the same, the present proceedings were taken  up  by the appellants.

       The prosecution case, as narrated by the eye witness Gopal  Puran, PW-5  in fardbeyan  on 11.7.1989   at 8.30 P.M. before Sub- Inspector N.P. Singh of P.S. Jopno Puti Tola, is   that at about 9.00

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A.M.  he had gone to his field lying in Jopno Puti Tola Kend Tand  with  Sohrai  Puran, Ram Mohan Puran, Cheta Puran, and others.  They  sowed Gunja in the field and thereafter they were taking rest under the  Kend Tree.  They saw that from the side of Jopno Village Balram  Mahto, Rabindra Nath Mahto, Girish Mahto, Fagu Mahto, Huna Mahto,  Dhananjay Mahto, Lemboo Mahto, Laloo Mahto, Jagmohan Mahto   along with five-six  other persons, armed with tangi, lathi, farsa and  sword came to the spot and enquired from them as to why they  plowed  the field, whereupon there was an exchange of hot words.  All of a  sudden Huna Mahto pelted stone on Sohrai Puran, the deceased, as a  result of which Sohrai Puran fell down.  Balram  and Rabindra  assaulted Sohrai Puran and  also assaulted Ram Mohan Puran.   Thereafter Jagmohan, Laloo, Lemboo, Fagu and others attacked Ram  Mohan and Sohrai Puran with lathi, farsa and sword as a result of which  Sohrai Puran and Ram Mohan Puran died.  Gopal Puran, PW-5 and  Cheta Puran, PW-9 were also assaulted by lathi.  Thereafter they ran  towards Village Puti Tola and raised alarm whereupon villagers came  to the spot  but before they could arrive, the accused fled away from the  scene of occurrence.  As mentioned above this fardbeyan was recorded  on 11.7.1989 at 2030 Hrs. i.e. 8.30 P.M. and the FIR was registered at  10.00 A.M.  on 12.7.1989.  The copy of the FIR was sent to the  concerned Magistrate on 13.7.1989.

       The Additional Judicial Commissioner and the High Court, on  the basis of the evidence placed on record by the prosecution, found  that the prosecution  proved  beyond reasonable doubt that the accused  Rabindra, Lemboo and Balram committed  the offence of murder of  Sohrai Puran and Ram Mohan Puran and other appellants committed  crime  in furtherance of their common object forming unlawful  assembly, which was formed to commit murder of the deceased persons  and attack on  the members present with them. On the basis of evidence  of eye-witness, as there was specific evidence of assault by accused  Rabindra  Mahto,  Balram Mahto and Lemboo Mahto on  the deceased  with  tangi, sword and  farsa, which was corroborated by the medical  evidence, they were found guilty of the offence under Section 302 IPC  and other accused persons who assaulted the deceased with Lathi were  held  guilty of an offence under Section 302 read with Section 149 of  Indian Penal Code.

       The post mortem report prepared by PW-7,  Dr. Niranjan Minz  found the following injuries on deceased Sohrai Puran: 1.      Incised wounds:- (a)     8.3 cm x bone deep on the front part of  the left side of the chest and adjoining left  shoulder cutting the soft tissues, under bones  partially and the first and the second ribs left  side completely;

(b)     11x3 cm x cavity deep on the left  tempro parietal region of the head cutting the  left external on the head cutting the left  external ear partially and cutting the left  tempro parictal bone completely and the  underlying brain partially;      

(c)       4x1 = cm  x soft tissue on the right  arm medial side;

(d)         8x4 cm x soft tissue on right chest  lateral side situated 3 cm below the right  axilla;

(e)        6x2 cm  x bone  deep on the left  bottom upper part cutting the soft tissues and  the underlying bone partially.

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2. Lacerated wounds:

2x1 cm x soft tissues on left leg front middle.

3. Internal:     

There was presence of blood and blood clots  in the chest and cranial cavity.

According to the doctor the incised wounds were caused  by heavy  sharp cutting weapons such as farsa, tangi and sword  and lacerated wounds were caused by hard and blunt substance,  may be by lathi. On the same day at about 1330 Hrs.  said doctor conducted  postmortem examination on the dead body of Ram Mohan and  found the following  ante mortem injuries:

1.      Abrasion: (i)     2 x 2 cm on right leg front  upper part 2.      Bruise: 24 x 2 cm,  and 16.2 cm on the back              of the chest left side lateral part

3.      Incised wounds: 1.      11 x 1/4 cm  x soft tissues on the right  scapular region.

2.      8 x 2 cm x cavity deep on the left  occipital parietal region of the head cutting  the underlying bone and the brain matter.

3.      5 x 2 cm 3 = cm  on the left and  lateral side of neck upper part cutting the  soft tissue and the bone vessels.

4.       4 x 1/4 cm x soft tissues on left  elbow lateral side.

4.      Internal:-

There was contusion of soft tissues of the  chest wall left side.  There was fracture of  third to 10 ribs with laceration of the left  lung.  There was presence of blood and  blood clots in the chest  and cranial cavity.    

According to the doctor, the injuries were caused by hard  and blunt substance, may be by lathi and stone and incised  wounds were caused by heavy sharp cutting weapons such as  farsa, tangi or sword.         It is urged by Shri D.N. Goburdhan, learned counsel for  the appellants that the delay in lodging of the FIR and thereafter  further delay in sending the same to the concerned Magistrate,  clearly indicates that the accused-appellants have been falsely  implicated and on this count alone the prosecution case fails and  is required to be discarded.  It is further urged by Shri Goburdhan  that the accused-appellants could not have been convicted for the  offence under Section 302 IPC  with the aid of Section 149 of the  Indian Penal Code when there is no evidence of a common object  of the assembly to commit murder of Sohrai Puran and Ram  Mohan Puran.

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        Shri Anil Kumar Jha, learned counsel appearing on behalf  of the State, on the other hand, inter alia submitted that the  common object of the assembly has to be gathered from the facts  and circumstances of the case and that in this case there is  enough evidence on record to indicate that all the accused- appellants have formed unlawful assembly to commit an offence  of murder of two deceased persons, namely, Sohrai Puran and  Ram  Mohan Puran.  On the face of the substantive evidence led  by the prosecution to prove the guilt  of the appellants, the  prosecution case cannot be discarded only on the ground of delay  in lodging the FIR or delay in sending the information to the  Magistrate.      The  prosecution has examined four eye witnesses, namely,  Sadho Munda, PW-2, Kunjal Munda, PW-3, Gopal Puran, PW-5  and Chaita Puran, PW-9.  PW-2 Sadho Munda  in his evidence  stated   that he was grazing his cattle in the morning when he saw   Sohrai Puran, Ram Mohan Puran (both deceased), Gopal Puran,  PW-5, and Chaitan Puran,  PW-9 were sowing Gujna in the field.   He further stated that  he saw the accused persons along with  some unknown persons who came towards the field from the side  of Jopno Village.  Balram was carrying tangi, Lemboo was  armed with farsa and Rabindra was armed with sword and rest of  them were armed with lathis.  They came and assaulted Sohrai  Puran and Ram Mohan Puran and also assaulted Gopal and  Chaita.  Gopal and Chaita  fled away from the field.  After the  accused ran away from the  scene of incident, he came near the  injured persons who were then breathing and they were taken to  their houses but they died on the way.  To the same effect is the  statement of PW-3 Kunjal Munda, who was also grazing his  cattle in the nearby field and saw the complaining party plowing  the field for sowing Surguja.  He stated that after sowing they  were taking rest under the tree when he saw from the eastern side   of the village Jopno, the accused party proceeding towards the  place of incident.  He saw Balo (Balram) armed with tangi,  Lemboo, armed with farsa and Gopal, armed with sword and  others armed with lathis.  He saw the accused party assaulting  Sorhai Puran and Ram Mohan Puran.  He also saw Gopal and  Chaita  were inflicted injuries.  PW-5, Gopal Puran’s evidence  was to the effect that he went to the field for plowing it and for  sowing Sarguja and when they were taking rest under the tree, he  saw all the accused persons approaching them from the village  Jopno, armed with sword, tangi and farsa.  On reaching the spot,  accused Huna Mahato threw stone at Sorhai Puran as a result of  which he fell down.  Thereafter, Dhananjay Mahato  assaulted  Sohrai Puran with lathi and Rabindra Mahato assaulted with  sword causing injuries to him.  Lemboo also assaulted Sorhai  Puran  with farsa. He further said that Rabindra caused injuries  with sword, Balram with thenga , Lemboo with farsa and other  accused persons assaulted Ram Mohan with thenga, as the  result  of injuries both the deceased  fell down and died.  He further  deposed that Girish Mahato assaulted him with thenga on head  and Fagu Mahato hit him on the right arm with lathi.  Jag Mohan  hit Chaita with Thenga.  Thereafter,  he along with Chaita fled  away to Puti Tola.  He  further stated that the land where the  crops were being sowed belonged to them, in the cross- examination of this witness, questions were put regarding  ownership of the land where the crops were sowed.  He was  asked whether there was any case in respect of the land between  the parties.   From this line of cross-examination, it is apparent  that the defence is claiming ownership over the land.         Another eye witness examined by the prosecution is Chaita  Puran, PW-9.  He supported the prosecution case and deposed  that he along with  others was taking rest under the tree after  plowing and sowing sarguja seeds when accused appellants along

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with 5-6 other unknown persons came there.  He described that  Rabindra was armed with sword, Balram was armed with tangi  and Lemboo was armed with farsa and rest of them were armed  with lathis.  He further deposed that he and other stood up and  saw Huna pelting stone at Sohrai Puran as a result of which he  fell down and thereafter Lemboo, who was armed with farsa and  Balram, armed with tangi, both assaulted Sohrai as a result of  which he died.  Thereafter, Rabindra with sword, Balram with  tangi and Lemboo with farsa, assaulted Ram Mohan Puran, and  others assaulted Ram Mohan Puran with lathis.  He was also  assaulted by Jag Mohan and Laloo with lathi.  Thereafter, they  fled from the spot.  This witness stated that the occurrence took  place due to the land in  Kend Tad.  He further deposed that it  was not correct that the accused persons had at all told that they  had purchased the Kenda Tad land in auction.  For the first time  the accused persons told on the day of occurrence that it was their  land.             The main thrust of the argument of the learned counsel for  the appellants is that evidence on record shows that only three  accused-appellants, namely, Rabindra Mahato, Lemboo and  Balram Mahato have assaulted the deceased persons with sharp  edged weapons and in the absence of proof of common object of  the assembly  to cause death of two deceased persons the  other  accused persons could not have been convicted by taking aid of  Section 149 of the Indian Penal Code.  Section 149 of the Indian  Penal Code postulates an assembly of 5 or more persons having a  common object i.e. one of  those  named in Section 141  of  Indian Penal Code and then  doing of  the act  as by the  members  of it in prosecution of that object.  The basis of constructive guilt  under Section 149 is mere membership of an unlawful assembly.   Under Section 149, if the accused is a member of an unlawful  assembly, the common object of which is to commit a certain  crime, and such a crime is committed by one or more of the  members of that assembly, every person who happens to be a  member of that assembly would be liable for the commission of  the crime  being a member of it irrespective of the fact whether  he has actually committed the criminal act or not.    There is a  distinction between the common object and common intention.   The common object need not require prior concert and a common  meeting of minds before the attack, and an unlawful object can  develop after the assembly gathered before the commission of the  crime at the spot itself.  There need not be prior meeting of the  mind.  It would be enough that the members of the assembly  which constitutes five or more persons, have common object and  that they acted as an assembly to achieve that object.  In  substance, Section 149 makes every member of the common  unlawful assembly responsible as a member for the act of each  and all merely because he is a member of the unlawful assembly  with common object to be achieved by such an unlawful  assembly.  At the same time, one has to keep in mind that mere  presence in the unlawful assembly cannot render a person liable  unless there was a common object and that is shared by that  person. The common object has to be found and can be gathered  from the facts and circumstances of each case. From the facts found in the present case it appears that the  appellants claimed ownership of the land in question, when they  came to know that the deceased and their men plowed the land  which they claimed to be their, they armed with weapons came to  the place of incident to vindicate their right to the land by show  of force or use of force.  The intention to assert the right by force  is apparent from the fact that the appellants were armed with  deadly weapons such as sword, tangi and farsa and some of them  were carrying lathis.  All the persons came together at the spot  armed with weapons and immediately after reaching the spot,  after short  exchange of words, they started assault and caused

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grievous injuries to two persons who died on the spot.  It is  alleged that the two eye witnesses namely PW-5 and PW-9 have  also been assaulted.  The nature of the injuries found on the  deceased gives clear indication  of a common intent of the  assembly to go to the extent of causing death of the persons who  have plowed their land.  All the members reaching to the spot  together armed with  weapons and immediate attack on the  persons present there ,clearly exhibits the intention of the  unlawful assembly.  In  the facts and circumstances of the case  we can safely infer the common object of the unlawful assembly  to do away with the deceased persons.  We have been taken  through the evidence and cross-examination  of the witnesses by  learned counsel for the appellants.  We do not find any reason to  disbelieve the version of these witnesses  which found approval  of two courts.         Learned counsel for the appellants has then  urged that the  delay in lodging the FIR and thereafter further delay in  forwarding the same to the Magistrate concerned  would lead to  the conclusion that FIR had been recorded much later than one as  shown in the document and as such the very genesis of the  prosecution case belies and  cannot be relied upon to convict the  accused appellants.  Learned counsel relied upon the decisions of  this Court in the matters of Meharaj Singh   vs.  State of U.P.  (1994) 5 S.C.C. 188,    Arjun Marik and others  vs.  State of  Bihar, 1994 Supp. (2) S.C.C. 372 and Suresh Chaudhary  vs.  State of Bihar (2003) 4 S.C.C. 128.          In the matter of Meharaj Singh (supra), this Court in Para  12 has stated as under:         "FIR  in a criminal case and particularly in  a murder case is a vital and valuable piece of  evidence for the purpose of appreciating the  evidence led at the trial.  The object of insisting  upon prompt lodging of the FIR is to obtain the  earliest information regarding the circumstance in  which the crime was committed, including the  names of the actual culprits and the parts played  by them, the weapons, if any, used, as also the  names of the eyewitnesses , if any.  Delay in  lodging the FIR often results in embellishment,  which is a creature of an afterthought.  On account  of delay, the FIR not only gets bereft of the  advantage of spontaneity, danger also creeps in of  the introduction of a coloured version or  exaggerated story. With a view to determine  whether the FIR was lodged at the time it is  alleged to have been recorded, the courts  generally look for certain external checks.  One of  the checks is the receipt of the copy of the FIR,  called a special report in a murder case, by the  local Magistrate.  If this report is received by the  Magistrate late, it can give rise to an inference  that the FIR was not lodged at the time it is alleged  to have been recorded, unless, of course the  prosecution can offer a satisfactory explanation   for the delay in dispatching or receipt of the copy  of the FIR by the local Magistrate .  Prosecution  has led no evidence  at all in this behalf.  The  second external check  equally important is the  sending of the copy of the FIR along with the dead  body and its  reference in the inquest report.  Even  though the inquest report, prepared under Section  174 Cr.P .C., is aimed at serving a statutory  function, to lend credence to the prosecution case,  the proceedings get reflected in the report.  The  absence of those details is indicative of the fact

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that the prosecution story was still in an embryo  state and had not been given any shape and that  the FIR came to be recorded later on after due  deliberations and consultations and was then ante- timed to give it the colour of a promptly lodged  FIR.  In our opinion, on account of the infirmities  as noticed above,  the FIR has lost its valu and  authenticity and it appears to us that the same has  been ante-timed and had not been recorded  till the  inquest proceedings were over at the spot by PW- 8.

       In the matter of Arjun Marik (supra), this Court in Para    24 has stated as follows: "The matter does not stop here.  There is yet  another serious infirmity which further deepens the  suspicion and casts cloud on the credibility of the  entire prosecution story  and which has also been  lost sight of by the trial court as well as the High  Court and it is with regard to the sending of  occurrence  report (FIR)  TO THE magistrate  concerned on 22-7-1985 i.e. on the 3rd day of the  occurrence.  Section 157 of the Code of Criminal  Procedure mandates that if, from information  received or otherwise, an officer in charge of  police station  has reason to suspect  the  commission of an offence which he is empowered  under Section 156 to investigate, he shall forthwith  send a report of the same to the Magistrate  empowered to take cognizance of such offence  upon a police report.  Section 157 Cr. .C.  thus in  other words directs the sending of the report  forthwith i.e. without any delay and immediately.   Further, Section 159 Cr. P.C. envisages that  on  receiving such report, the Magistrate may direct  an investigation or, if he thinks fit, to proceed at  once or depute any other Magistrate subordinate  to him  to proceed to hold a preliminary inquiry  into the case in the manner provided  in the Code  of Criminal Procedure.  The forwarding of the  occurrence report is indispensable and absolute  and it has to be forwarded  with earliest dispatch  which intention is implicit with the use of the word  "forthwith" occurring in Section 157, which  means promptly and without any undue delay.  The  purpose and object is so obvious  which is spelt out  from  the combined reading of Sections 157 and  159 Cr. P.C. .  It has the dual purpose, firstly to  avoid the possibility of improvement  in the  prosecution story and introduction of any distorted  version by deliberations and consultation and  secondly to enable the Magistrate concerned to  have a watch on  the progress of the investigation"    

       In the matter of Suresh Chaudhary (supra) this Court in  Para 9 (bottom) has held that:         "\005\005That apart, the express message which  PW-13 sent to the Jurisdictional Magistrate  reached the said Magistrate at his place only on  1012.1092 nearly 1 = days after the said  complaint was registered and we find no  explanation from PW-13 as to this inordinate  delay  which only adds to the doubtful  circumstances surrounding the prosecution case".

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There cannot be any manner of doubt that Section 157 of  Criminal Procedure Code requires sending of an FIR  to the  Magistrate forthwith which reaches promptly  and without undue  delay .  The reason is obvious  to avoid any possibility of  improvement in the prosecution story and also to enable the  Magistrate to have a watch on the progress of the investigation.   At the same time, this lacuna on the part of the prosecution would  not be the sole basis for throwing out the entire prosecution case  being fabricated if the prosecution had produced the reliable  evidence to prove the guilt of the accused persons.  The  provisions of Section 157, Cr. P.C. are for the purpose of having  a fair trial without there being any chance of fabrication or  introduction  of the fact at subsequent stage of investigation.  The  cases cited by the learned counsel for the appellants do not lay  down any law that simply because there is a delay in lodging the  FIR or sending it to the Magistrate forthwith, the entire case of  the prosecution has to be discarded.  The decisions rendered by  this Court and relied upon by the learned counsel for the  appellant would only show that this will be a material  circumstance which will be taken into consideration while  appreciating the evidence on record.           After going through the material on record, we are of the  view that the prosecution has led reliable evidence the veracity of  which is not dislodged by delay in recording of the FIR and delay  in sending the same to the Magistrate in the facts and  circumstances of this case.  At best it can be taken to be an  infirmity in investigation.         For the aforesaid reasons, the appeals are dismissed.