Patna High Court – Orders
Dharm Nath Mahto vs The State Of Bihar on 10 January, 2025
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.632 of 2024
Arising Out of PS. Case No.-63 Year-2018 Thana- BABUBARHI District- Madhubani
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Dharm Nath Mahto son of Jagdish Mahto R/o- Teghra Tol, P.S. Babu Barahi,
District- Madhubani ... ... Appellant/s
Versus
The State of Bihar Bihar ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Patanjali Rishi, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
6 10-01-2025
Heard Mr. Patanjali Rishi, learned counsel for the
appellant and Mr. Abhimanyu Sharma, learned APP for the
State.
2. This appeal has been filed on behalf of the
appellant under Section 374(2) read with Section 389(1) of the
Code of Criminal Procedure, 1973 (hereinafter, referred as the
‘Code’) against the judgment of conviction dated 11.09.2023 the
order of sentence dated 16.09.2023, rendered by the learned
Additional Sessions Judge VIII, Madhubani, in Sessions Trial
Case No. 351 of 2018, arising out of Babubarahi P.S. Case No.
63/2018, C.R.I. No. 713/2018, whereby the appellant/convict
has been convicted for commission of the offences punishable
under Section- 302/201 of I.P.C. and sentenced to undergo R.I.
for life for the offence punishable under Section-302 of I.P.C.
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and a fine of Rs. 10,000/- (ten thousand) and, in default of
payment of fine, to undergo further R.I. for one year. He has
further been sentenced to undergo imprisonment for two years
for the offence under Section-201 of I.P.C. with fine of Rs.
5000/- (five thousand) and, in default of payment of fine, to
undergo R.I. for fifteen days. Both the sentences have been
directed to run concurrently.
3. Learned counsel for the appellant submits that the
present appeal has been admitted by this Court and the appellant
has prayed for suspension of sentence and for grant of bail. It is
contended that the present is a case of circumstantial evidence
and there is no eye-witness to the incident in question. It is
contended that on the basis of presumption and assumption, the
trial Court has convicted the appellant herein. Learned counsel
referred the deposition of the prosecution-witnesses, copy of
which is separately supplied, and thereafter contended that, at
the time of funeral, the family members of the deceased were
also present, despite which the brother of the deceased lodged
the F.I.R. and half burnt dead body of the deceased was taken
out from pyre. It is further submitted that the deceased was
married with the present appellant more than 14-15 years ago
and, therefore, there is no question of giving mental or physical
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torture by the appellant to the deceased. In fact, the prosecution
has failed to prove the motive on the part of the appellant to kill
the deceased. It is further submitted that though the doctor who
had conducted the post mortem of the dead body of the deceased
has deposed that the death was due to asphyxia caused by
throttling, specific suggestion was put to the said witness that
because of the pressure of bamboo during funeral such fracture
was caused. It is further submitted that the appellant is in
custody since the year 2018 and the present appeal is of the year
2024 which is not likely to be taken up in near future. He,
therefore, urged that the appellant be released on bail.
4. On the other hand, learned A.P.P. has vehemently
opposed the request made by the appellant for grant of bail and
for suspension of sentence. Learned A.P.P. would submit that the
doctor who had conducted the post mortem on the dead body of
the deceased has specifically deposed before the Court that body
was burnt and charred, Kerosene oil smell was found and the
death was due to asphyxia caused by throttling. Learned A.P.P.,
therefore, contended that the death of deceased was a homicidal
death and the appellant has tried to dispose of the dead body of
the deceased in a ditch in the back side of the house of the
appellant. The informant has, therefore, informed to the police
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and half burnt dead body of the deceased was taken out from the
said place and thereafter it was sent for conducting the post
mortem. Learned A.P.P., therefore, urged that conduct of the
appellant is also required to be examined. Learned A.P.P. has
also placed reliance upon Section-106 of the Evidence Act.
5. We have considered the submissions canvassed by
the learned advocates, perused the material placed on record and
the trial court record. Prima facie, it would emerge from the
evidence that it is the specific case of the informant that when
he came to know that after killing his sister the appellant and his
family members were trying to dispose of the dead body, he
reached to the said place and found that the appellant and his
family members had set the body of his sister on fire in a ditch
in the back side of the house of the appellant. It is further
revealed from the record that police officer came to the said
place and took out the half burnt dead body. Thereafter, the
same was sent for the purpose of conducting post mortem. If the
deposition given by P.W. 3 is carefully examined, it is revealed
that P.W. 3 has specifically stated as under:
“2. Following were finding.
Body was burnt and charred, kerosine oil smell found: Both
lower limbs from mid thigh were lost. Right arm also lost.
Bone were exposed. Right femur/thigh bone shows sharp
cut margine. Left thigh bone irregular margine.
3. On the dissection of body:–
Patna High Court CR. APP (DB) No.632 of 2024(6) dt.10-01-2025
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were fractured. No any carbon shoot was found in
respiratory track.
ii. Chest-lungs were conjusted, all chamber of heart was
full,
iii. abdomen no any sign of putrification any vescera liver,
splin, kidney were conjusted. Stomach was empty. Intestine
contain fecal matter and gass, uterus small and nonpregnant.
Urinary bladder was empty.
4. Time since death within 24 hours.
5. Opinion – Death in our opinion was due to asphyxia
caused by throttling.
6. This postmortem report had been prepared along with me
and other members stated above. This postmortem report is
in my handwriting and signed by me and along with all
above members stated above. Entire postmortem report is
exhibited as exhbt. 1Cross Examination
7. The injuries found on the dead body is not possible due to
burn. Fracture of tracheal ring is not possible due to
pressure of bamboo during funeral.
8. I have not mentioned the case history in postmortem report.
The dissection was made by myself.
9. During postmortem we prepare a rough note and on the basis
of that note this postmortem report had been prepared. That
rough note is not presently before the court.
10. All the members of the board stated above had joined the
postmortem.
11. In this case death is not possible due to loss of the organ of
body.
12. It is wrong to say that my postmortem report is collusive and
violative of the medical jurisprudence.”
6. From the aforesaid deposition, it is revealed that the
body was burnt and charred and there was a smell of Kerosene
oil on the body. Further, specific opinion has been given by the
doctor that the death was due to asphyxia caused by throttling.
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Now, it is the contention of the learned counsel for the appellant
that there was a fracture on tracheal ring because of pressure of
bamboo during funeral. However, in para-7 of the cross-
examination the doctor has specifically stated that injuries found
on the dead body is not possible due to burn. Fracture of
tracheal ring is not possible due to pressure of bamboo during
funeral. The doctor has further stated that, in the present case,
death is not possible due to loss of organ of body.
7. Thus, prima facie, we are of the view that the
defence taken by the appellant that because of the operation of
the Uterus and as the Uterus of the deceased was removed she
died is, prima facie not believable. Further, the fracture of
tracheal ring was not because of the pressure of bamboo during
funeral. On the contrary, specific opinion has been given by the
doctor that death was caused due to asphyxia caused by
throttling.
8. Thus, prima facie, it is a case of homicidal death.
We are of the view that Section-106 of the Evidence Act will be
applicable and it was the duty of the defence to discharge the
burden by leading cogent evidence explaining the
circumstance/cause of death of the deceased at the house of the
appellant. However, prima facie, appellant has failed to
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discharge the said burden.
9. At this stage, the conduct of the appellant is also
required to to be seen. The appellant has tried to dispose of the
dead body without informing either the police or the family
members of the deceased. It is most important to observe at this
stage that the doctor has also found smell of Kerosene oil on the
body. Thus, prima facie, it can be said that by pouring Kerosene
oil on the dead body, the appellant has tried to dispose of the
same by setting the dead body on fire.
10. In view of the aforesaid facts and circumstances of
the present case, we are of the view that the aforesaid prayer
cannot be entertained.
11. In the case of Sidhartha Vashisht @ Manu
Sharma Vs. State (NCT of Delhi), reported in (2008) 5 SCC
230, the Hon’ble Supreme Court has held in para Nos. 30-32 as
under:
30. Mr Gopal Subramanium, learned Addl.
Solicitor General invited our attention to Akhilesh Kumar
Sinha v. State of Bihar [(2000) 6 SCC 461 : 2000 SCC
(Cri) 1126] , Vijay Kumar v. Narendra [(2002) 9 SCC 364
: 2003 SCC (Cri) 1195 : JT 2002 Supp (1) SC 60] , Ramji
Prasad v. Rattan Kumar Jaiswal [(2002) 9 SCC 366 :
2003 SCC (Cri) 1197 : JT (2000) 7 SC 477] , State of
Haryana v. Hasmat [(2004) 6 SCC 175 : 2004 SCC (Cri)
Patna High Court CR. APP (DB) No.632 of 2024(6) dt.10-01-2025
8/101757 : JT (2004) 6 SC 6] , Kishori Lal v. Rupa [(2004) 7
SCC 638 : 2004 SCC (Cri) 2021 : JT (2004) 8 SC 317]
and State of Maharashtra v. Madhukar Wamanrao
Smarth [(2008) 5 SCC 721 : (2008) 4 Scale 412 : JT
(2008) 4 SC 461] . In the above cases, it has been
observed that once a person has been convicted, normally,
an appellate court will proceed on the basis that such
person is guilty. It is no doubt true that even thereafter, it
is open to the appellate court to suspend the sentence in a
given case by recording reasons. But it is well settled, as
observed in Vijay Kumar [(2002) 9 SCC 364 : 2003 SCC
(Cri) 1195 : JT 2002 Supp (1) SC 60] that in considering
the prayer for bail in a case involving a serious offence
like murder punishable under Section 302 IPC, the Court
should consider all the relevant factors like the nature of
accusation made against the accused, the manner in which
the crime is alleged to have been committed, the gravity
of the offence, the desirability of releasing the accused on
bail after he has been convicted for committing serious
offence of murder, etc. It has also been observed in some
of the cases that normal practice in such cases is not to
suspend the sentence and it is only in exceptional cases
that the benefit of suspension of sentence can be granted.
31. In Hasmat [(2004) 6 SCC 175 : 2004 SCC
(Cri) 1757 : JT (2004) 6 SC 6] , this Court stated : (SCC
p. 176, para 6)“6. Section 389 of the Code deals with suspension of execution of
sentence pending the appeal and release of the applicant on bail.
There is a distinction between bail and suspension of sentence.
One of the essential ingredients of Section 389 is the requirement
for the appellate court to record reasons in writing for ordering
suspension of execution of the sentence or order appealed. If he is
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in confinement, the said court can direct that he be released on
bail or on his own bond. The requirement of recording reasons in
writing clearly indicates that there has to be careful
consideration of the relevant aspects and the order directing
suspension of sentence and grant of bail should not be passed as
a matter of routine.”
(emphasis supplied)
12. From the aforesaid decision rendered by the
Hon’ble Supreme Court, it can be said that while considering
the prayer for bail in a case involving a serious offence like
murder, punishable under Section-302 of I.P.C., the Court
should consider all the relevant factors like the nature of
accusation made against the accused, the manner in which the
crime is alleged to have been committed, the gravity of the
offence, the desirability of releasing the accused on bail after he
has been convicted for committing serious offence of murder.
Further, it is revealed that normal practice in such cases is not to
suspend the sentence. It is only in exceptional cases that benefit
of suspension of sentence can be granted.
13. We have considered the gravity of the offence, the
nature of accusation made against the accused and the manner in
which the appellant has committed the alleged crime and we are
of the view that this is not a fit case in which the appellant is to
be released on bail. Further, the present is not an exceptional
case in which the benefit of suspension of sentence is to be
granted to the appellant herein.
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14. Accordingly, the prayer for bail and for suspension
of sentence is dismissed.
(Vipul M. Pancholi, J)
(Dr. Anshuman, J)
K.C.Jha/-
U T
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