CRIMINAL APPEAL No.312 OF 1988 Against the judgment and order dated 25.05.1988 passed in Session Trial No. 209 of 1987 by 4th Additional Session Judge, Nalanda. 1. Raghunandan Mahto, 2. Rajendra Mahto, and 3. Awadhesh Kumar alias Dhananjay Pd. Sinha, Sons of Late Rupan Mahto, resident of village – Meghi, P.S. – Dipnagar, District – Nalanda. ----------------(Appellant) Versus THE STATE OF BIHAR ------------------(Respondents) ******** For the appellants : Sushri Nutan Sahay, Adv. For the State : Sushri Shashi Bala Verma, APP. ******** P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA ******** Akhilesh Chandra, J. Out of the three appellants one Rajendra Mahto appellant no. 2 faced trial under Section 302 of the Indian Penal Code. Whereas the remaining two appellant nos. 1 and 3 were charged for the offences under Section 302 read with Section 34 of the Indian Penal Code for allegedly committing murder of one Janki Devi and the trial court after finding them guilty for the offences charged - 2 - sentenced to undergo rigorous imprisonment for life giving rise to present appeal. 2. The prosecution case in short as contained in the fardbeyan (Exhibit – 4) of Sarit Devi, P.W.8 recorded on 07.03.1987 at 2.45 A.M. at village Medhi, P.S. – Deepnagar, District – Nalanda, by Sub-Inspector, Rameshwar Singh, P.W.12 is that in the previous night she along with deceased Janki Devi and her mother Phuliya Devi, P.W.4 was sleeping in the western Varandah on straw roughly at about 1.00 A.M. in the night, the three Gotias of Janki Devi entered inside the house and appellant Raghunandan Mahto and Awadhesh Mahto respectively, got hold of leg and head of Janki Devi whose neck was being cut by appellant Rajendra Mahto. The informant identified the miscreants in the light of Dhibri - 3 - burning there when she awoke hearing sound of Janki Devi, she by dint of fear. Initially, was not able to speak, however, on coming out, she made hue and cry and the miscreants fled away. The villagers Narsingh Prasad, P.W.7, Jagdish Mahto, P.W.9, Ishwar Prasad Singh, P.W.2 and Arbind Prasad, P.W.3 arrived and found Janki Devi dead. She reached at Police Station along with the aforesaid four persons. It is stated that this informant is Mameri Bhabhi of Janki Devi, whose husband Punit Mahto expired ten days before and informant and Phuliya Devi mother of the deceased had come to participate in religious ceremonies being performed of husband of deceased Janki Devi. Further the couple had no issue so such performance including last rites of her husband was being done by the deceased Janki Devi herself. - 4 - 3. During trial, prosecution has examined altogether 12 witnesses out of whom the informant P.W. 8 though in examination-in-chief stated the prosecution case but on the point of identification, she took U-turn and was declared hostile. P.W. 5 Basudeo Mahto and P.W.10 Devaki Charan were tendered for cross-examination. The only eye witness to the occurrence is P.W.4 Phuliya Devi. P.W.6, the Doctor who conducted autopsy of dead body and proved post mortem report examination (Exhibit – 1) P.W.11 is another Doctor who examined appellant Awadhesh Mahto @ Dhananjay Prasad Singh, and proves injury report (Exhibit – 3). P.Ws. 1, 2, 3, 7 and 9 are the persons claiming to see the miscreants fleeing away through the lane when they arrived on alarm out of whom P.W. 7 has also proved Exhibit – 2 to 2/5 and P.W.12 is - 5 - the Investigating Officer who further proved rest of the documents. 4. On consideration of the materials available, the trial court held all the three accused persons facing trial guilty and sentenced them accordingly. The appellants have preferred this appeal assailing their conviction. 5. The learned counsel holding power on behalf of the appellants since did not turn up. We, by the order dated 13.04.2010 appointed Sushri Nutan Sahay as amicus curiae to assist us. Sushri Sahay, drew our attention towards statements of the witnesses and submitted that in fact there is none to see the occurrence and identify the miscreants. Since the informant P.W.8 and mother of the deceased Phuliya Devi P.W.4 was the only person claiming to see the occurrence out of whom - 6 - informant had not identified the appellants and P.W.4 was also not in a position to identify. As she herself has said that she just arrived in the village for last 2 to 3 days only but was acquainted with none. Moreover, the other witnesses examined are the persons interested in getting the appellants convicted just to enjoy the property of the couple in the garb of donation in favour of Lord Shiva, otherwise, appellants being the nearest agnates could have inherited the property and such interested witnesses had even without any means of identification claimed to identify the appellants, but only when they were allegedly fleeing. 6. It is also contended that the circumstances like appellant Awadhesh Mahto, having inflicted with some injuries at some of his fingers of both the hands at the time - 7 - of apprehension from his house has been considered against him to show such injuries inflicted during occurrence. But, even at the stage of 313 Cr.P.C. no relevant question was put to him and opportunity to meet such circumstance was denied. On the other hand, learned Public Prosecutor Sushri Shashi Bala Verma, was supporting the findings of the court below submitted that the appellants were the persons interested in getting the lands of the couple. The deceased was only hurdle, so, she was killed by them. P.W.4 being the eye witness of the occurrence has identified them and remaining witnesses appearing at the seen also identified them while the appellants were fleeing and the finding of the court requires no interference. - 8 - 7. The Doctor P.W. 6, on autopsy of the deceased Janki Devi found following anti mortem injuries upon her: (i) Deep incised wound in front of neck below the ear of one side to the other side cutting through the trachea on the left of thyroid cutting big vessels on the sides of neck. (ii) Incised wound 3” x 1/2” x 1/2” on the left cheek. (iii) Incised wound 2” x 1/2” x muscles deep on dorsum of left hand and wrist joint. (iv) Incised wound 2” x 1/2” x muscles deep on the left. (v) Incised wound 2 1/2” x 1/2” muscles deep on dorsum of her right hand. 8. Cause of death in the opinion of P.W.6 was shock and hemorrhage due to injury no. 1 caused by sharp cutting weapon may be Fasuli. There is nothing in the evidence of this doctor to disbelieve him and it is - 9 - undisputed that deceased Janki Devi was killed. 9. P.W.4 Phuliya Devi, mother of deceased and P.W.8 Sarita Devi, the informant, are only eye witnesses of the occurrence since P.W.8 is informant also, let us examine her evidence first. In examination-in-chief only she has stated that while she along with P.W.4, the deceased Janki Devi and daughter of this witness were sleeping, three persons scaled in the house, there was nothing burning in the room she could found only that some persons had got hold of Janki Devi and caused her death by Fasuli by cutting her throat, but, she could not identify any of such three persons. On this point of identification she was declared hostile. In cross examination by prosecution she has denied her statements allegedly made under Section 161 of the Criminal - 10 - Procedure Code, regarding burning of Dhibri and identification of accused persons. In further cross examination by defence she could say that after fleeing of miscreants she raised alarm. 10. Since out of the two eye witnesses, one failed to identify the miscreants, now remain solitary witness P.W.4, whose statement is to be considered. P.W.4 Phuliya Devi, mother of the deceased in her very short examination-in-chief stated that on the fateful night she was sleeping in the house of her daughter along with P.W.8 and the deceased, suddenly on the cry of her daughter she could see Raghunandan Mahto and Awadhesh Mahto and master. Raghunandan Mahto was getting hold of head of Janki Devi whereas her legs, master was cutting her neck by Fasuli. She could identify - 11 - them in the light of Dhibri. After doing their job all the three persons fled away. In cross examination, it has come that three ladies were sleeping in a room however, dead body and blood etc. was found in the Varandah surrounded by bricks etc. The Court below has explained this discrepancy giving some latitude to this witness on the ground of her being aged and rustic lady unable to differentiate between room and covered Varandah. In further cross examination para 6 and 7, she has said that she arrived in the P.O. village for the first time and further in para 9 she says that she never visited house of the accused persons and she is unable to say distance of their house from P.O. house and at the end of para 9 she says that except her son in law (died 10 days before) she was not acquainted with any one else of the village. Ignoring her statement, the trial court - 12 - has given further latitude to this witness by stating that she was there in the village for the last about one month and since accused persons were agnates of her son-in-law and on being so, they might have in making frequent visit of the house of the deceased. She could have been able to identify them but, this is not the statement of this witness rather it is P.W.1 who in para 4 has said that she was staying there in P.O. village in last one month. On the basis of statement of another witness, such latitude can not be granted to this witness rather as per her own statement she is not in a position to identify the miscreants by name. Perhaps, this is the reason she failed to get her statement recorded as informant. Though, she has made an explanation in para 13 for not getting her statement as informant and she had gone mad. - 13 - 11. Now there remain only five persons who claimed to see the miscreants passing through the lane when they came out of their respective house on the hue and cry made by P.W.8. P.W.1 Ram Saran Prasad, in para 1, he says that on hearing cries from the house of Janki Devi came out of the house and found the three appellants running towards their house and when he arrived at the P.O. house found the deceased. The deceased’s neck was cut and she was died. In para 2, this witness says that Punit Mahto, husband of the deceased, a month before the occurrence, had expressed his desire to get his entire land donated to Lord Shiva, and 10 days before the occurrence on 25.02.1987, he died of illness. The appellants just to grab the properties of Punit Mahto did commit murder of his widow. - 14 - 12. In cross examination, he has given the details of relationship between the parties and others. In para 4 has stated earlier contrary to P.W.4. He has said that P.W.4 was there in the village for the last one month. In para 6, he states that the husband of the deceased was ill from before and under treatment at Patna, where his wife Janki Devi rendered services but not even a single person of the village including the appellants went there. 13. In para 15, he states that on coming out of the house in the lane, except the appellants he didn’t see anyone and when he arrived at the place of occurrence he found there P.Ws. 2, 7 and 9, but, without any deliberation with each other he returned back. 14. In para 17, he states that within a week of death of the deceased properties of her husband has been - 15 - transferred in favour of Lord Shiva, by P.W.4 and he is one of the trustees besides others. This witness has also no means of identification to see the appellants soon after coming out of his house as it as a dark night. 15. P.W.2 Ishwar Prasad Singh, is also a person coming out of his house on cry of informant who intimated him that the appellants committed murder of the deceased and earlier he came in the lane and found the appellants running. In para 10, he says that the night was dark and he is in habit of keeping torch with him by that means he identified the appellants but in para 11 says that he did not produce the torch to the Investigating Officer at the time of recording of his statement. 16. P.W.3 Arbind Prasad, who is the person has further improved the prosecution case by stating that when - 16 - on cry he came out of the house in the light of torch and found the three persons running with blood stains. He arrived at the P.O. found the Dhibri burning. In para 6, he confirms that night was dark and further said that he did not produce the torch to the Investigating Officer. 17. In para – 8, he said that when he arrived at the place of occurrence he found P.Ws. 1, 2, 7 and 8 there, but, ignored presence of P.W.4. In para 7, further he states that he is unable to say what position of the body of the appellants, there was blood stains. He asserts that he made statement before the police about blood stains of the persons of the appellants, but, P.W.12, Investigating Officer, in para - 27 denied. P.W.7, Narsingh Prasad, is another person coming out of the house and could say that three appellants running out of room, Rajendra had Fasuli - 17 - in his hand, he could not see the blood stains but a weapon in the hand of one appellants which is not the statements of other witnesses discussed above. He further proved signature of the witnesses on seizure list, inquest report etc. 2 – 2/5. He said that he accompanied informant P.W. 8, Devki Charan P.W.10, Ram Saran P.W.1, Ishwar Prasad, P.W.2 to the police station. But in para – 14, he said that the appellants were going in a row, he again has no means of identification and it is strange that persons having torch could not see the appellants having any weapon, but, this witness without any means of identification could not only claim to identify, but found a weapon also. 18. P.W.9 Jagdish Mahto, is another person claiming to see the appellants in the lane and Rajendra - 18 - having Fasuli. In para 6 he admits that Arparnama has been executed just after 4 days of occurrence by P.W.4 in favour of Lord Shiva, besides another deed in favour of one Kedar. He is one of the witnesses of such documents and Ram Saran P.W.1 besides Baleshwar Mahto, Jogendra, Devki Charan P.W.10 were involved in such transaction out of the whom Baleshwar Mahto, is the main trustee of the Shivalaya. 19. In para – 9, he further improves the prosecution case by stating that Fasuli was blood stained and further improves by saying that appellant Awadhesh had some injuries on his hands. 20. From statement of the above witnesses it appears that these five P.Ws. 1, 2, 3, 7 and 9 claimed to have been seen the appellants in the lane when they came - 19 - out of their house on alarm, only two persons have torch with their hands, but, none of the five persons were in a position to see them at a time. The three persons having no torch had no means of identification, who in support of prosecution have not only claimed to identify the appellants but as stated tried to improve the prosecution case by stating by one witness that appellants were having blood stains another has tried to further improve by saying that the appellant Rajendra had Fasuli and lastly P.W. 9 has claimed to see appellant Awadhesh was inflicted with some injuries in his hands. 21. Such improvement by the witnesses in prosecution version speaks about their interestness in getting the appellants convicted. Such inference further could be drawn by their statements as stated above that - 20 - within four days of occurrence properties of the deceased was transferred in favour of Lord Shiva and witnesses were trustees. According to these witnesses appellants were nearest agnates and they could have inherited the properties on the death of the deceased so they killed her being last hurdle in their way but, at the same time the witnesses appears to be benefited by murder of the deceased and getting her properties gifted in favour of Lord Shiva, and themselves making as trustees so in face of inability of P.W.4 to identify the colours of her daughter and statement of the witnesses becoming definitely on the ground of their special interest and coupled with variation on vital points. It appears unsafe to rely upon them. 22. P.W.11, the doctor, who examined the appellant Awadhesh @ Dhananjay and found the following - 21 - injuries on his person. (i) Incised wound 1/2” x 1/4” x 1/4” on right side of finger. (ii) Incised wound 1/2” x 1/4” x 1/4” on middle finger. (iii) Incised wound 1/2” x 1/4” x 1/4” on left ring finger. (iv) Incised wound 1/4” x 1/4” x skin deep over left little finger. 23. He was examined at 5.30 P.M. on 07.03.1987 and in cross examination the doctor admits that such injuries can be caused by fodder cutting machine also and the blood will clot within 10 – 15 minutes of the injuries. P.W.12 the I.O. in para 8 had said that after recording statement of the witnss at the P.O. etc. when he made an attempt to apprehend the named accused persons raid was conducted in his house and appellant Awadhesh was apprehended with the bleeding injuries - 22 - upon his hands. 24. The trial court has considered injuries upon appellant Awadhesh @ Dhananjay as the circumstances going against him. According to the trial court it might have been caused during the occurrence but this conclusion is again without any substantial basis as such the only alleged eye witness P.W.4 has stated that this appellant had got hold of legs of the deceased. Master was cutting the neck. The deceased had no injury on her legs further if at all any such injury was caused to appellant Dhananjay during such transaction in the mid night. The Investigating Officer would not have found the injuries oozing blood at the time of his apprehension much after 4 – 5 hours of the alleged occurrence. 25. Further this circumstance also cannot be - 23 - legally considered against this appellant without providing any opportunity to explain. But during his statement under Section 313 of the Criminal Procedure Code, such circumstances were not put to him. Thus, complete denial of opportunity to meet such vital issue renders it inapplicable against the appellant. 26. As stated earlier there is solitary witness P.W.4 claiming identification of the accused persons at the time of occurrence, her statement could have been vital for them, had she been trustworthy but she was not in a position to identify and the circumstances coming from statement of remaining five witnesses claiming to identify the appellants in the lane soon after the occurrence. This is also not acceptable due to improvement in prosecution version stage by stage and trying to complete the chain - 24 - without any substance as stated. There was no means of identification in spite of that two of the witnesses have claimed to see the appellants with blood stains, whereas one of them with injuries on hands of the appellant Awadhesh and to claim to see any weapon in the hands of the appellant Rajendra, there statement of the witness has discussed above are not so trustworthy as to hold the conviction of the appellants sustainable rather in view of the vital discrepancies which lost notice of the trial court cutting very root of the prosecution case brings the appellants in the purview of getting benefit of doubt and we extend such benefits to them. 27. In the result, the appeal is hereby allowed. Conviction of the appellants is set aside. On extending benefits of doubt to them since the appellants are on bail - 25 - they are discharged of the sureties. 28. At the end we are thankful to learned amicus curiae who assisted us and she is for such assistance entitled for the fee which we direct to paid to her by the High Court Legal Services Authority. 29. Let a copy of the first and last page of the order be supplied to her for needful. (Akhilesh Chandra, J.) (Dharnidhar Jha, J.) (Dharnidhar Jha, J.) Patna High Court The 20th May, 2010. N.A.F.R./Rajeev/