MUNDRIKA MAHTO AND ORS. v. STATE OF BIHAR

Citation: [2002] 3 S.C.R. 575

Court: Supreme Court of India

Bench: U.C. BANERJEE, Y.K. SABHARWAL

Judgment text

MUNDRIKA MAHTO AND ORS. v. STATE OF BIHAR APRIL 29, 2002 [UMESH C. BANERJEE AND Y. K. SABHARWAL, JJ. ] Code of Criminal Procedure, 1973: Murder-FIR-No mention of names of some of the accused-Effect of-Held, considering the shock on the minds of eye-witnesses on whose statement FIR was recorded and when large number ofaccused were involved in the commission ofcrime, not naming ofsome ofthe accused by itselfwould not result in failure ofprosecution. Penal Code, Ss. 302134 and 201. Evidence Act, 1872: Testimony ofthe eye-witnesses-Appreciation of-Held, within a short .... time of occurrence of crime the statement of informant naming the accused • was recorded though not corroborated by the statement of other eyewitnesses-Held, there is no scopefor false implication within such short time span.

Testimony of interested witness-Reliability-When the manner of commission ofthe crime has been fully corroborated by the testimony ofthe eye-witnesses, minor contradictions in the testimony are of no consequence . and it is trustworthy and reliable-Code ofCriminal Procedure, 1973. According to prosecution, on the fateful day deceased was riding a scooter and two persons (prosecution witnesses} were sitting on the back of the scooter. When they reached near a tea stall, they were obstructed by a hand-cart and suddenly 10 to 15 persons (accused) came and pulled the deceased from the scooter and two of them assaulted the deceased with sharp edged weapons and severed bis head from the trunk. On alarm being raised by the persons accompanying the deceased, son of the deceased reached the place of occurrence. The accused dragged the trunk of the deceased and + dumped the same in a pond. Police was informed about the incident on telephone.

Within 15 minutes, Police reached the spot and statement of one of the eye-witnesses (nephew of the deceased) was recorded and FIR was -.... registered. Statement of other eye-witness was also recorded, who in his testimony identified the accused persons but did not mention the name ofthe main accused. The Sessions Judge acquitted one of the accused and convicted the remaining 12 accused under Sections 302/34 and 201 ofIndian Penal Code and under Section 27 of the Arms Act. Each of them was sentenced to imprisonment for life. Aggrieved, accused moved the High Court. High Court acquitted three of them and affirmed the conviction of the remaining nine accused persons. Hence this appeal. ...

It was contended for the appellants that one of the eye-witnesses had not named one of the appellants and, therefore, conviction of the appellants on the basis of the statement of another interested witness could not be sustained; and that ifthe trunk of the deceased had been dragged, as alleged, there would have been more injuries on the trunk but there was no mention as . such in the inquest report which implied that it was either not visible or was considered inconsequential by the Investigating Officer. ... _ Dismissing the appeal, the Court HELD: 1. 1. The testimony of the prosecution witness is most natural, - )- • trustworthy and reliable. The fact that this witness has named the two accu~ed and not the other appellant, shows the truthfulness of the statement that the witness knew . only some of the accused by name and, thus, he named them. Regarding others, his statement is that 14-15 persons came there and one of them put the amputated head in a plastic bag. (579-H; 580-A] 1.

2. It is important to bear in mind that within about 15 minutes of the commission of the offence, the Police party arrived at the scene and within 15 minutes thereof, the statement of informant naming the appellants was ~· ; recorded. As such it cannot be said that since the appellants were not named by one of the witnesses or that he had not heard their names shows that they were ialsely implicated and that there was hardly any scope for false or over implication within a short time span of about half an hour. In respect of L Informant/Prosecution witness who is the r~lative of the deceased and has identified all the accused, the contention that he being an interested witness, the conviction ofthe appellants cannot be based on his testimony without any corroboration is witbout any substance.

The manner of commission of the offence has been fully corroborated by the testimony of one of the eye- -'· witnesses and from the stage of dragging of trunk of the deceased by one of the accused as well. The minor contradictions in the testimony ofwitness are of no consequence. The contention that informant does not name the main ) MUNDRIKA MAHTO v. STATE OF BIHAR 577 accused and other accused for dragging the body of his father or that the name of main accused who pulled down the deceased from the scooter and dragged his body has not been mentioned in the FIR in the contextual facts is again of not much consequence.

The shock on the minds of Prosecution witness/Informant on whose statement FIR was recorded within about half an hour can be well imagined and if in the process when large number of accused were involved, name of some of them being not mentioned by one and mentioned by the other or if there is slight variation in the role attributed, that by itself will not result in failure of the prosecution. (580-B-C, D, E, F, G) 2. 1. On all material aspects, the testimony of witnesses is trustworthy and reliable. It is not the law that conviction cannot be based ofthe testimony of relations. That alone cannot be the ground to win over the conviction. The scratch injury, according to the testimony ofthe Doctor, is possible as a result ofdragging. The non-mention of it by the Investigating Officer in the inquest report is of one 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 were 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 dragging. (581-H; 582-A, BJ 2. 2. The factum ofdragging of the headless body stands established from the evidence on record with 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 the path ofthe 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 accused were not bothered about others watchmg them and, therefore, the submission that the accused who were large in number having not caused any injury to witnesses who were present along with deceased show the improbability oftheir presence on the scene ofoccurrence, ha~ no substance. [582-F, G) CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 701 of 1993. From the Judgment and Order dated 2. 3. 93 of the Patna High Court in Crl. A. No. 82 of 1990. U. R. Lalit, K. K. Tyagi and Pankaj Kalra for the Appellants. ·'-( -+ arrived at the scene and within 15 minutes thereof, the statement of Suresh Kumar naming the appellants was recorded. Under these 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 identified all the accused, the contention of Mr. Lalit is that being an interested witness, the conviction of the appellants cannot be based on his testimony without any corroboration which, it was contended, was absent. This contention is <tlso 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 testimony ofRam Briksha Mahto are of no consequence.

The contention that Santosh Kumar does not name accused Mundrlka and Ram Rup Mahto for dragging the body of his father or that name ofMundrika in pulling down the deceased from the scooter and dragging his body has not been mentioned in the FIR in the contextual facts is again ·of not much consequence. The shock on the minds of Santosh Kumar (PW-I) and Suresh Kumar (PW-5) on whose statement FIR was recorded 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 other or there is slight variation in the role would not be attributed, that by itself will not result in failure of the prosecutions. · A great emphasis was laid by Mr. Lalit on the testimony ofDr. Shambhu Saran (PW-8) and also on the testimony of the Investigating Officer, S. I. Din Dayal Pandey, (PW-6) to discredit the story ofdragging ofthe headless body MUNDRIKA MAHTO v. STATE OF BIHAR [Y. K.

SABHARWAL, J. ) 581 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 alone, 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 vertebra were incised wounds with which the appellants were not concerned as these incised wounds cannot be attributed to the dragging of the trunk of the deceased 0r his pulling from the scooter. It was strenuously contended that had it been a case of dragging as alleged by the prosecution, there would have been many more injuries than only 3" scratch on the right arm 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 judgment 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 implication ofthe appellants, on account of the enmity. It was contended that Suresh Kumar (PW-5) was an interested witness 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 the 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 villagers. It also cannot be ignored that in large number of cases, the investigation is neither perfect nor scientific. Ifthe Investigating Officer does . not ask a witness to produce the medicines or the prescription or the cash memo showing payment for the purchase of medicines, 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 evidence ofSuresh Kumar (PW-5) read with Santosh Kumar (PW-I) 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 aspects, the testimony of these witnesses is trustworthy and reliable.

It is not the law that the conviction cannot be based on the testimony of relations. That alone cannot be the ground to over tum the conviction. The scratch injury, according to the testimony of the Doctor, 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 were 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 ofdragging. 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 help 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 l l. 30 p. m. , inquest report should be treated as the FIR and not the FIR registered on the basis of the Furdbeyan and, therefore, the mention of the name of the appellants 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 thereafter held the inquest on the dead body ofthe deceased, but recorded in the case diary, the 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 Fardbeyan was recorded earlier and inquest later and thus, inquest could not be treated as the FIR. Similarly, the telephonic conversation also could not be treated as FIR, as contended, as it was a cryptic information that was received and recorded in the daily diary regarding the commission of offence.

The factum of dragging of the headless body stands established from the evidence of record with 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 ofblood on the 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 accused were not bothered about others watching them and, therefore, the submission that the accused who were large in number having not caused any injury to Ram Briksha Mahto and Suresh Kumar would show the improbability of their presence on the scene of occurrence, has no substance. The cases of appellant No. I Mundrika and appellant No. 5 Ram Rup MUNDRIKAMAHTOv. STATEOFBIHAR[Y. K. SABHARWAL,J. ] 583 Mahto, cannot be treated differently.

For the reason already noticed earlier, A we are unable to accept the submission that 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. B S. K. S. Appeal dismissed. • •