CRIMINAL APPEAL No.447 OF 2004 Appeal against the judgment and order dated 02.04.2004 and 6.4.2004 respectively passed by Additional Sessions Judge- III, Khagaria in Sessions Trial No. 239 of 2000. 1. SANJAY MAHTO, 2. SURENDRA MAHTO @ SULO MAHTO BOTH ARE SONS OF SHRI VYASH NANDAN MAHTO, RESIDENT OF VILLAGE – RAHIA, P.S. AND DISTRICT – KHAGARIA. ………. APPELLANTS. Versus THE STATE OF BIHAR ………. RESPONDENT. With CR. APP (DB) No.454 OF 2004 RAJIV KUMAR MAHTO, SON OF SRI RAM SHANKAR MAHTO, RESIDENT OF VILLAGE – BHAGWANCHAK, POLICE STATION – KHAGARIA, DISTRICT – KHAGARIA. ………… APPELLANT. Versus THE STATE OF BIHAR ………… RESPONDENT. FOR THE APPELLANTS : - SRI ASHOK KUMAR CHOUDHAR-1, ADVOCATE FOR THE RESPONDENT : - SRI ASHWINI KUMAR SINHA, APP. (In both appeals). ----------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE SRI JUSTICE DHARNIDHAR JHA *************** Mridula Mishra & Dharnidhar Jha, JJ. These two appeals arise out of the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge -III, Khagaria in Sessions Case No. 239 of 2000 on the 2nd of April, 2004 and 6th of April, 2004 respectively in which appellants Sanjay Mahto and - 2 - Rajiv Kumar Mahto were found guilty for offences under Sections 376 & 302 of the Penal Code and each of them was directed to suffer Rigorous Imprisonment for Life and also to pay a fine of Rs.5,000/- each for each of the offences. The third Appellant Surendra Mahto @ Sulo Mahto was found guilty for committing offences under Sections 376/34 & 302/34 of the Penal Code and sentences were passed in the same terms as were passed against the two appellants Sanjay Mahto and Rajiv Kumar Mahto. The appellants challenge the order of conviction and sentence passed against them. 2. The deceased, Juli Kumari, went out of her house for attending to the call of nature at about 7.00 a.m. on 24.3.1999. When she did not come back till 9.00 a.m., her father grew suspect and set out on her search with P.Ws. 1, 2 and 10 and during the course of search, her dead body was found lying in the maize field of P.W. 8 Krishna Kumar Sah. It was alleged that appellants Sanjay Mahto and Rajiv Kumar Mahto, who were respectively aged 18 and 17 years on that date, were also found present there and seeing the informant and others, both of them rushed out of the place. The informant subsequently found that it was bleeding from - 3 - the private parts of his daughter and suspected her to be raped and killed and attempt was being made by appellants Sanjay Mahto and Rajiv Kumar Mahto for disposal of the dead body. With regard to appellant Surendra Mahto @ Sulo Mahto, it was stated that he requested the informant to forbid and forget as they would settle the matter sitting together without going to the police and as such the informant alleged that appellant Surendra Mahto should also have his hand in commission of the offence. 3. The fard-beyan of P.W. 3 Bindeshwari Mahto, the informant of the case, was the basis of drawing up of FIR and investigation by the police, which ultimately resulted in submission of the charge sheet. 4. The three appellants pleaded not guilty and after perusing the evidence of 11 witnesses including Dr. Vimla Kumari, one of the members of the Board, which held the post-mortem examination, learned Judge, in spite of recording a finding that there was not a single witness to the occurrence and further that there was no circumstantial evidence of the class, which could unerringly indicate towards the complicity of the appellants, held that the truth - 4 - was that it was the appellants, who committed the offence. The above finding recorded by the trial Judge is under scrutiny in the present appeals. 5. After having been taken through the evidence of the witnesses, who admittedly have never seen any part of the occurrence, even that the appellants could be seen near the deceased or in company of hers, we can safely conclude that on mere presence of the two appellants, namely, Sanjay Mahto and Rajiv Kumar Mahto, it cannot be inferred that it could be their acts that the deceased was raped or killed. The deceased was indeed subjected to sexual assault and was strangulated to death also but, in complete lack of the evidence as regards the commission of offence by any particular person, we could not simply find ourselves persuaded to accept the view as was recorded by the learned trial Judge. The appellants might have been present out of curiosity by seeing a dead body and that could never give rise to an inference that it were they, who had committed the offence. Besides the complicity of Surendra Mahto on the very face of the statements contained in the FIR could never be accepted, inasmuch as the said appellant was simply - 5 - attempting reconciliation with the informant so that the matter was never reported to the police or was taken to the court. It is concluded that it was the request by the appellant to the informant and that appears not making out an evidence of the class or degree which may lead to his conviction. 6. After having gone through the evidence of the witnesses, we find that the order of conviction and the sentences passed against the appellants cannot be sustained in the eyes of law. 6. In the result, both the appeals are allowed and the appellants in the two appeals are hereby acquitted. Appellants Sanjay Mahto and Surendra Mahto @ Sulo Mahto are in custody. Both of them shall be released forthwith, if not wanted in any other case. Appellant Rajiv Kumar Mahto is on bail. He shall stand discharged from the liability of his bail bond. Patna High Court, Dated 27th July, 2010, N.A.F.R./DKS (Mridula Mishra, J.) (Dharnidhar Jha, J.)