1 IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL No.217 OF 2007( D.B.) - - - - Against the judgment of conviction and order of sentence dated 30.12.2006 and 4.1.2007, respectively, passed by Additional Sessions Judge, Fast Track Court No.VI, Sitamarhi, in Sessions Trial No.169 of 2002/54 of 2006. - - - - DILIP MAHTO … … … Appellant Versus STATE OF BIHAR … … … Respondent With CR. APP (DB) No.120 of 2007 RAM BAHADUR MAHTO … … … Appellant Versus STATE OF BIHAR … … … Respondent For the appellants: Shri Shakeel Ahmad Khan, Sr.Adv. ( in both the appeals)Shri Mritunjay Kumar Gautam, Adv. Shri Manish Kumar No4, Adv. Shri Yogendra Kumar, Adv. For the State : Shri Ashwini Kumar Sinha, A.P.P. For the informant: Shri Dinesh Jha, Adv. P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA - - - - Mridula Mishraa & Dharnidhar Jha, JJ.- These two appeals arise out of the judgment of conviction dated 30.12.2006 by which appellant Ram Bahadur Mahto was found guilty of committing offences under Sections 302/109 and 302/34 of the Indian Penal Code and appellant Dilip Mahto was found guilty of committing the offence under Section 302 of the Indian Penal Code and Section 27 of the Arms Act passed by the Presiding Officer of Fast Track Court No.VI, Sitamarhi, by judgment in Sessions Trial No. 169 of 2002/54 of 2 2006. While passing sentence on 4.1.2007 the learned trial Judge directed appellant Ram Bahadur Mahto to suffer rigorous imprisonment for life as also to pay fine of Rs. 10,000/-,else, to suffer further rigorous imprisonment for a period of one year. No separate sentence was passed upon appellant Ram Bahadur Mahto for his conviction under Section 302/34 of the Penal Code. So far as sentence passed against appellant Dilip Mahto is concerned, he was directed to suffer rigorous imprisonment for life under Section 302 of the Indian Penal Code as also to pay a fine of Rs.1,00,000/-,else, to suffer rigorous imprisonment for three years. He was further directed to suffer rigorous imprisonment for three years for his conviction under Section 27 of the Arms Act and also to pay a fine of Rs. 2,000/- under this count. Both the appellants have preferred the two appeals assailing the order of conviction and sentence passed upon each of them by the learned trial Judge. 2. The fradbeyan ( Ext.5) of P.W. 8 Hari Narain Sah was the basis of trying the two appellants in the above noted case by framing charge under Section 302/34 of the Indian Penal Code, besides trying appellant Dilip Mahto by framing charge for committing the offence under Section 27 of the Arms Act. It was alleged in the fardbeyan that after having closed down his business in Jagdar Bazar the informant and the 3 deceased Sheo Shankar Sah were coming back to their respective houses. Prior to the incident, appellant Dilip Mahto had asked the informant to pay rangdari amount of Rs. 25,000/- which was refused to be paid by the informant and, as such, when the two, i.e., the informant and the deceased reached near the house of Uchhi Devi, the two appellants appeared there. Appellant Dilip Mahto is said to have asked for the reason for non-payment of rangdari which was objected to by deceased Sheo Shankar Sah and upon that at the orders of appellant Ram Bahadur Mahto, appellant Dilip Mahto fired a shot into the chest of the deceased as a result of which he fell down and died there. The accused persons fled away. 3. The informant stated that he raised a cry on which Fekan Mahto (P.W.3), Ishwar Narain Mahto( P.W.2) and Rajendra Mahto (P.W.1) reached there and with their help the informant brought the deceased to his house. While he was preparing to go to the Officer-in-charge of Parihar Police Station to lodge the report, P.W. 10 S.I.Ekrar Ahmad reached there and recorded his fardbeyan. 4. P.W. 10 Ekrar Ahmad has stated in his evidence that he picked up a rumour that some one had been killed by being shot at at village Jagdar and he entered the station diary no. 348 dated 21.1.2002. 4 Thereafter, he started for the said place along with some other Police Officers, namely, Ramneti Singh and Surendra Prasad Singh. He came at Jagdar market and learnt that deceased Sheo Shankar Sah had been shot and killed by the two appellants. He after learning that the dead body was lying at the house of the grand father of the deceased, namely, Fakira Mahto, came there and found the family members of the deceased weeping. He recorded the fardbeyan of P.W. 8 Hari Narain Sah in presence of Ishwar Narain Mahto, (P.W. 2) and Rajendra Mahto (P.W.1) and took up the investigation. He prepared the inquest report in presence of independent persons at 11 P.M. and inspected the place of occurrence which was a pitched road running from village Parbatta Dubauli to some other place. He found blood fallen on the southern flank of the road and the house of Yugeshwar Sah situate opposite that place towards north. He seized the blood stained earth by preparing seizure memo, as may appear from paragraph 6 of his evidence. He sent the dead body for post-mortem examination, recorded the statements of various witnesses and finding martial sufficient sent the accused appellants up for trial. 5. The defence of the appellants from the trend of cross-examination of various witnesses appears to be of their innocence and false implication. While cross- 5 examining the witnesses, it appears that the defence was suggesting that the deceased had been killed in a dacoity and some of the witnesses had made statement to that effect. 6. Shri Shakeel Ahmad Khan, learned Senior counsel appearing on behalf of the appellants has assailed the judgment on various grounds. He has submitted that the fardbeyan(Ext.5) is a forged and fabricated document. It was contended that, in fact, neither the informant nor any of the witnesses had either seen the occurrence or seen anybody running away from the scene of occurrence. They were making statements out of their imagination, as such, they were not making correct statements before the Investigating Officer. The informant was also not making statement about the occurrence for more than two and half hours after the deceased had been shot and killed. The witnesses, probably, were not ready to name any accused for quite sometimes and after a plan about implicating the accused had been properly thought out, the witnesses started giving their statements later on the next day. It was further contended that at least three witnesses had made statements before the Investigating Officer at the very initial stage of investigation that they had heard hulla and when they reached the place of 6 occurrence they found Sheo Shankar Sah lying dead but they were not naming the accused. 7. Shri Ashwini Kumar Sinha, learned A.P.P. appearing for the State and Shri Dinesh Jha, learned counsel appearing for the informant have supported the judgment and, in spite of submitting that the evidence of other witnesses than the informant may not be material as they appear hearsay witnesses or witnesses of post occurrence fact, the evidence of the informant if found trustworthy, it could never be rejected and if the Court is inclined to take a view that it was reliable evidence then that evidence is sufficient to sustain the conviction of the appellants. 8. Relationship of the witnesses appears indicated by the evidence of P.W. 1 Rajendra Mahto in paragraph 1 of his evidence. From reading of that particular paragraph 1 of the evidence of P.W. 1 what may appear is that the witnesses, the informant and the deceased were related by blood. Even Uchhi Devi, in front of whose house the occurrence had allegedly occurred, appears one of the family members of the deceased being the aunt of P.W. 2 Ishwar Narain Mahto. Thus, the above fact of relationship and interestedness of the witnesses remaining on record, their evidence appears not reliable as the first purpose of examining only those P.Ws appears to us the compulsion of 7 prosecution as no independent person of the village was coming out to support the claim of the informant that it were the appellants or other accused persons who had participated in commission of the offence. The second purpose of examining them we find is that they could, in spite of not initially and promptly making any statement, were probably persuaded by the informant or his family members to come forward to support the version of the informant set up by him after due deliberations and consultations. We want to take a view that the witnesses were indeed not making the correct and true statements on the part of the occurrence upon which they were depositing in court. There are various reasons for our above observation. The foremost reason is that on perusal of the evidence of the witnesses right from P.W. 1 to P.W. 7, we find that they have unequivocally stated that the Investigating Officer had come in the very night of the occurrence after a few hours. P.W. 1 has stated that P.W. 10, the Investigating Officer, reached the site of occurrence at about 10 P.M. whereas P.W. 6 and even P.W. 8 have stated that the Investigating Officer reached at 9 P.M. Majority of the witnesses have stated that P.W. 10, the Investigating Officer, reached at the scene of occurrence at 9 P.M. All the witnesses who have deposed in the case admitted in their evidence that they were 8 accompanying the Investigating Officer throughout his presence at the place of occurrence and in the village. All of them have also stated in their respective evidence that in spite of remaining with the Investigating Officer they were neither making any statement to him nor they were disclosing the name of the appellants who had been seen and identified by him. This consistent statement of the witnesses compels us to take a view that it could never be safe to place reliance upon the evidence of P.Ws. 1 to 7 as regards their story that on hearing the cry of P.W. 8 they reached at the scene of occurrence to find the accused persons running away from the place of occurrence. 9. When we were considering the evidence of P.W. 4 Uchhi Devi, who could be the most competent person, as in front of whose house the occurrence had occurred, we find that in her evidence she has not only stated that after hearing the sound of gun shot she came out but she has stated also that she immediately went inside the house and shut down the doors and that she did not come out of her house for the whole night. She could be the only competent witness to make statement as regards the occurrence as in front of her house the occurrence had taken place. She could, probably, be the first person who could be coming to the place of occurrence to find as to how the occurrence had 9 happened and could have seen the accused persons running away from the scene of occurrence and could have narrated the whole story to the whole of the village. But, she remained behind the doors in her house. P.W. 6 Shri Narain Sah has come forward to point out that he had disclosed the names of the accused to the Chaukidar who had arrived at 9 P.M. at the place of occurrence ahead of the Investigating Officer who had reported the occurrence to the Police Station but he did not name the accused who had been seen by him to the Investigating Officer who had arrived at 9 P.M. This we get from paragraphs 5 and 6 of the evidence of P.W. 6. The father of the deceased P.W. 7 Ram Bahadur Sah was also examined and as per his evidence in paragraph 3, P.W. 10 the Investigating Officer of the case after having arrived at the village had remained there for whole of the night. This probablizes the fact that the inquest was held on 21.1.2002 and the dead body was dispatched to the mortuary which was received there at 9.15 A.M. This we get from post-mortem report Ext.3. This could not have been possible for the Investigating Officer had he reached at the place of occurrence in the early hours on a January day to dispatch the dead body so quickly to reach the hospital for post mortem purposes as at 9.15 A.M.. This further 10 creates doubt about the competence of the witnesses as per his own statement before the Investigating Officer. 10. As regards the competence of informant and his trustworthiness, we find that he had not made any statement before P.W. 10, the Investigating Officer for more than two and half hours as per his evidence in paragraph 10 at page 45 of the Paper Book. The Investigating Officer had reached the village at 9 P.M. but the fardbeyan was recorded at 11.30 P.M. The occurrence had taken place at 7.15 P.M. Thus, the fardbeyan was recorded after four hours and fifteen minutes of the occurrence. The police Officer was there at the scene of occurrence for two and half hours and within that period of two and half hours the informant was not making statement, as may appear from his evidence when he stated that he did not make any statement before the Police during that time. This remains a riddle for us as to why P.W.8 was maintaining silence as regards the details of the occurrence and the accused who had committed the murder of the deceased. There is overwriting and cutting in the fardbeyan. Learned A.P.P. and the counsel for the informant attempted to convince us that in spite of the same, it gets some support from the inquest report prepared on 21.1.2002. We find that there is no time given as to when the Inquest Report was prepared. 11 Twenty three hours had been mentioned after the date 21.1.2002 but if the fardbeyan was recorded at 11.30 P.M. then it creates further doubt in our minds that the inquest report could be antedated. This particular circumstance strengthens the submission of learned counsel for the appellants that not only the fardbeyan but also other documents were antedated. The other circumstances which we have taken into account after looking at the fardbeyan raise some suspicion that it was recorded, as per the prosecution case, on 21.1.2002 at 11.30 A.M. This fact was being mentioned not only by the informant but this fact was mentioned also in Ext.3, the post-mortem report, i.e., 21.1.2002 but curiously enough the copy of the F.I.R. was being received in the court on 23.1.2002. 11. We have already noted that initially the witnesses were not making statements. Even the witness in front of whose house the occurrence had occurred did not make any statement. The witnesses were, probably, concealing the true facts as regards the manner of occurrence. It appears that after being pursued they were coming forward to support the prosecution case. 12. In the light of our above findings, we find that both the appeals are meritorious. They are, accordingly, allowed. The judgment of conviction and 12 order of sentence passed upon the two appellants are hereby set aside and the appellants are acquitted. 13. Appellant Ram Bahadur Mahto is on bail. He stands discharged from the liability of his bond. As regards appellant Dilip Mahto, he is in custody. He is directed to be released forthwith, if not wanted in any other case ( Mridula Mishra, J.) ( Dharnidhar Jha, J.) Patna High Court The 23rd September, 2010 Kanth/N.A.F.R.