Full Judgment Text
2023 INSC 821
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 20 OF 2014
BHAKTU GORAIN & ANR. …APPELLANTS
VERSUS
THE STATE OF WEST BENGAL …RESPONDENT
J U D G M E N T
PANKAJ MITHAL, J.
1. Heard Shri Ranjan Mukherjee and Mr. Nipun Saxena along
with Ms. Astha Sharma, learned counsel for the parties.
2. In Sessions Trial No. 05/1998 arising from Sessions Case No.
37/1997 pursuant to the FIR No.110/1993 lodged under
Sections 341, 302 read with 34 of IPC at Jhalda Police Station,
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.10.12
15:10:59 IST
Reason:
Purulia, by one Lakshmi Mahato, the eldest son of the
deceased-Smt. Keshari Mahato, all the five accused persons
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namely; Bhaktu Gorain (A-1), Surendra Gorain (A-2), Bandhu
Gorain (A-3), Ranjit Gorai (A-4) and Rajen Gorain (A-5) were
convicted and sentenced to rigorous imprisonment for life
with a fine of Rs.1000/- each, in default of payment of which
they were directed to serve further imprisonment of one
month each. The above judgment and order of the conviction
and sentencing the accused persons has been affirmed by the
High Court vide judgment and order dated 21.07.2010.
3. All the accused persons assailed the above conviction i.e.
judgments and orders of the High Court and the trial court by
filing the Special Leave Petition wherein leave was granted on
03.01.2014. The appeal against A-2, A-4 and A-5 was
dismissed vide order dated 25.11.2011. Therefore, presently
the appeal is concerning A-1 (Shri Bhaktu Gorain) and A-3
(Shri Bandhu Gorain) only.
4. The aforesaid FIR was lodged at 08:45 a.m. on 27.09.1993
alleging that the incident in which the mother of the
informant/complainant was put to death had occurred early
in the morning at around 06:00 am. The five accused persons
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surrounded ( gheraoed ) the deceased Smt. Keshari Mahato,
the widowed mother of the complainant, and her daughter-in-
law Smt. Bijali Mahato, who were returning from the pond
after performing their daily ablutions. The accused persons
were armed with tangi, tabala and lathi. Upon hearing the
screams of the deceased and her daughter-in-law, the
complainant along with his brothers Sudhir Mahato (PW-2),
Rampada Mahato (PW-3) and the uncle’s son Pratham
Mahato (PW-5) rushed out of their house which was hardly 30
cubits away and found the accused persons assaulting the
deceased on her head. The deceased instantly fell down and
died on the spot. The accused persons made good their escape
from the place of occurrence.
5. The Investigating Officer reached the place of occurrence and
prepared an Inquest Report (Ext.2) of the dead body, seized
the incriminating article (Ext.5), examined the witnesses and
recorded their statements under Section 161 CrPC and
prepared a sketch map ( Ext.4) of the place of occurrence. The
post-mortem was conducted by Dr. A.K. Hazari (PW-9) around
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2 pm on the same day. All the accused persons were arrested
by the police on 04.10.1993.
6. Admittedly, Lakshmi Mahato (PW-1), the informant, Sudhir
Mahato (PW-2) and Rampada Mahato (PW-3) are the sons of
the deceased and are the eye witnesses to the incident. Bijali
Mahato (PW-4) is the daughter-in-law of the deceased [wife of
Lakshmi Mahato (PW-1)] and is one another eye witness of the
incident. Pratham Mahato (PW-5) is the nephew of the victim
Raghu Mahato (PW-6) is a post-occurrence witness. Binode
Mahato (PW-7) is the father-in-law of Krishna Chandra
Mahato, one another brother of the informant who was
visiting the house of the deceased due to karam puja and as
such had an occasion to witness the heinous crime. The
presence of Raghu Mahato (PW-6) and Binode Mahato (PW-7)
has been established by the evidence of Sudhir Mahato (PW-
2). The scribe of the FIR Subhash Mahato was examined as
(PW-8). Dr. A.K. Hazari who conducted the post-mortem
examination on the body of the deceased was examined as
PW-9 whereas Sub-Inspector Santosh Kumar Das who was
on duty at the police station and had received the complaint
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was examined as PW-10. The Investigating Officer of the case
had died and as such could not be examined.
7. The contents of the FIR (Ex.1) were proved by the ocular
evidence of Lakshmi Mahato (PW-1). He stated that he rushed
to the place of occurrence along with his brothers upon
hearing the screams of the deceased and his wife and upon
reaching the spot they witnessed that the deceased had been
stopped and surrounded ( gheraoed) by the accused persons
whereupon Surendra Gorain (A-2) and Bhaktu Gorain (A-1)
assaulted her with tangi and tabala on her head whereas
Ranjit Gorain (A-4) assaulted her with lathi on her right hand,
consequently, the deceased fell down on the ground and died
instantaneously.
8. The aforesaid witness also testified that on the previous night,
all the above five accused persons called the deceased a witch
(diayen) who is the cause of trouble to the villagers as she
used to indulge in witchcraft. Her activities have caused
suffering to the wife of Surendra Gorain (A-2) who was not
keeping good health for some time. The place where deceased
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was killed was near the house of one Buka Mahato. He
identified all the accused persons while they were in the court
room.
9.
The testimony of Lakshmi Mahato (PW-1) was corroborated by
Sudhir Mahato (PW-2). He even corroborated the incident of
the previous night wherein the deceased was abused for
practicing witchcraft and alleged to be the cause of trouble to
the villagers particularly to the wife of Surendra Gorain (A-2).
He also stated that the place of incident was only at a distance
of 40-50 cubits from their house and they have reached the
spot instantly upon hearing the screams. Rampada Mahato
(PW-3) categorically proved that when he reached the place of
occurrence upon hearing the screams of his mother and that
of his elder brother’s wife Bijali Mahato (PW-4), he saw
Surendra Gorain (A-2) assaulting his mother by a tangi,
Bhaktu Gorain (A-1) by tabala and Ranjit Gorain (A-4) by lathi
on the head whereupon his mother fell on the ground and
died.
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10. Bijali Mahato (PW-4) in her testimony stated that after
washing their face etc. she was returning with her mother-in-
law to her house but on the way back, they were intercepted
by all the five accused persons who surrounded ( gheraoed )
them and assaulted the mother-in-law with the weapons
possessed by them in front of the house of Biju Mahato. Her
mother-in-law fell down and died instantly. She also stated
that there was a quarrel between her mother-in-law and the
five accused persons on the previous night.
11. It may be pertinent to mention here that all the aforesaid
witnesses successfully stood the test of cross-examination
and nothing could be extracted from them in cross-
examination that could discredit their testimony. The
credibility of the above witnesses is not in doubt and in fact
they are wholly reliable witnesses in the facts and
circumstances of the case.
12. In addition to the above witnesses, there is one chance
witness Raghu Mahato (PW-6). He rushed to the place of
occurrence upon hearing the shouting of “ Mario Mario ”, he
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found all the accused persons proceeding towards their house
on the south with the weapons in their hands. He saw the
deceased lying dead in front of the house of Buka Mahato. His
evidence could not be demolished in cross-examination. He
had signed the Inquest Report ( Ext.2 ) as a witness.
13. Dr. A.K. Hazari (PW-9), who conducted the post-mortem
cross-examination, proved the post-mortem report and the 3
injuries reported therein. The said injuries are as follows:
“1). Incised wound over left side face, orbit
and frontal region, vertically placed,
measuring 6" x 1" bone cut.
On dissection, muscle left eye-ball cut, left
xygomatic bone and frontal bone (left side)
cut. Intracrtranial haemorrhage was
present.
2). Incised would over occipital region,
transfersely placed, measuring 6" x 2" x
bone cut.
On dissection, blood-clots were present.
Occipital bone cut and intractranial
hemorrhage was present.
3). Swelling over right fore-arm.
On dissection, fracture both bone of mid-
shaft of right forearm present.”
14. He had opined that injury Nos.1 and 2 might have been
caused by sharp cutting weapon like tangi, tabala etc. and
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that injury No.3 might have been caused by hard and blunt
substance like lathi. The cause of death was stated to be
shock and hemorrhage as a result of the aforesaid injuries
which was ante-mortem and homicidal in nature. The tangi
which was the only weapon recovered was shown to him in
open court and he opined that injury Nos.1 and 2 could have
been caused by that type of weapon.
15. In view of the above evidence and some other evidence which
is not very material and worth referring, it is evident that all
the witnesses have proved that all the five accused persons
have surrounded (gheraoed) the deceased and her daughter-
in-law Bijoli Mahato in the early hours of the day while they
were returning to their home after performing their day’s
routine at the pond and had assaulted the deceased with
tangi, tabala and lathi on her head due to which she fell down
and died instantaneously. The injuries she received were
enough to cause death.
16. The submission on behalf of the appellants is that they never
had any common intention to kill the deceased and that they
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simply wanted to teach a lesson to the deceased so that she
may not indulge in her practices of witchcraft in future.
17. The submission is devoid of any merit as admittedly an
altercation had taken place between the parties on the
previous night in which all the five accused persons were
present and it is in furtherance of the said quarrel that all of
them had appeared in the morning with reinforced vengeance.
The very fact that they had assembled in the morning and
surrounded ( gheraoed ) the deceased with deadly weapons is
sufficient indication to infer that they had surrounded
( gheraoed ) in a pre-planned manner with a pre-determined
mind. Thus, the submission that they had no common
intention stands completely ruled out. Moreover, the nature
of injuries which have been caused on the head of the
deceased with the deadly weapons proves that they had
assembled with the common intention and not merely to
threaten her or to deter her from practicing witchcraft.
18. Notwithstanding that two of the accused persons Bandhu
Gorain (A-3) and Rajen Gorain (A-5) had no weapons with
them or might not have assaulted the deceased but certainly
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they were part of the team that surrounded ( gheraoed ) the
deceased with the common intention to kill after they had an
altercation with her the previous night on the subject of
practicing witchcraft.
19. In the light of the above clinching evidence and in the absence
of any specific lacuna in the testimony of the witnesses and
the documentary evidence adduced, we are of the opinion that
the trial court had not committed any error in convicting and
sentencing the accused persons with imprisonment of life.
The conviction and sentence have rightly been affirmed by the
High Court.
20. It may not be out of context to mention that the detention
certificates of Bhaktu Gorain (A-1) and Bandhu Gorain (A-3)
issued by the Superintendent of Midnapore Central
Correctional Home, Paschim Midnapore, on 28.10.2022
certifies that they have served a total period of 15 years, 9
months & 24 days and 11 years, 7 months & 5 days (without
remission) respectively as on the date of the certificate. They
are, therefore, permitted to seek remission in accordance with
the prevailing policy of the State and it is expected that if any
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such application/representation is made by them, it shall be
duly considered on its own merits. The application shall be
decided in accordance with applicable policy within three
months from the date of filing.
21. In the facts and circumstances of the case, the Appeal lacks
merit and is dismissed with the above observation.
……………………….. J.
(ABHAY S. OKA)
……………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
SEPTEMBER 12, 2023.
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