IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No. 56 of 1989 Against the judgment and order dated 24th January, 1989 passed in Sessions Trial No. 17 of 1983 / 150 of 1980 by the learned 1st Additional Sessions Judge, Aurangabad. ========================================================== (i) Rajdeo Mahto, Son of Bhulan Mahto (ii) Narad Mahto, Son of Ramdeni Mahto (iii) Suba Mahto, Son of Hasan Mahto (iv) Ramdeni Mahto, son of Baban Mahto (v) Ramautar Mahto, Son of Bulan Mahto (vi) Dina Mahto @ Dinanath Mahto, Son of Suba Mahto Residents of village-Mamrajpur, District-Aurangabad. .... .... Appellants Versus The State of Bihar .... .... Respondent ========================================================== Appearance : For the Appellants : Mr. Rakesh Kumar Sinha, Advocate For the Respondents: Ms. Shashi Bala Verma, APP. ========================================================== CORAM: HON‟BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON‟BLE MR. JUSTICE ASHWANI KUMAR SINGH ******** (Per: HON‟BLE MR. JUSTICE ASHWANI KUMAR SINGH) ********** The present appeal has been filed against the judgment and order dated 24th January, 1989 passed in Sessions Trial No. 17/1983 / 150/1980 by the learned 1st Additional Sessions Judge, Aurangabad, whereby appellant nos. 1 to 4 have been convicted for the offence under Section 302 of the Indian Penal Code whereas appellant nos. 5 and 6 have been convicted for the offence under Section 302/149 of the Indian Penal Code and they all have been sentenced to undergo R.I. for life. Appellant No. 1 has further been convicted for offence 2 under Sections 307 and 326 of the Indian Penal Code and has been sentenced to undergo R.I. for seven years and three years respectively. Appellant Nos 1, 2, 3, 5 & 6 have further been convicted under Section 148 of the Indian Penal Code and appellant no. 4 has been convicted under Section 147 of the Indian Penal Code but no separate sentence has been awarded for these offences. 2. The prosecution case is based upon the fardbeyan of Ganga Dayal Mahto (P.W.-5) which was recorded on 31.1.1980 at 2:30 p.m. at Kataria Badhar situated south –west of village-Mamrejpur by Md. Ayub Shah, Officer- in-Charge of Daud Nagar Camp police station. It is alleged that while the informant together with his father Inder Mahto (deceased), Bindeshar Ram (P.W.-6) and Inderdeo Mahto (P.W.-4) was ploughing his land appertaining to plot no. 206 in Village-Mamrejpur, the accused persons who were his co- villagers being variously armed with „Garasa‟, Bhala, Barchi, Katari, Lathi and pistol forming an unlawful assembly came there and forbade them from cultivating the land in question. The informant defied their dictate and told them that the plot in question was decreed in his favour by the competent court. An altercation took place between the parties. Upon this, being annoyed, it is alleged that appellant no. 1 Rajdeo Mahto and appellant no. 2 Narad Mahto inflicted several injuries by Garasa upon head and left hand of the father of the informant. When Inderdeo Mahto (P.W.-4) tried to intervene, Rajdeo Mahto and Narad Mahto are alleged to have assaulted by Garasa upon his head. Further, appellant no. 3 Suba Mahto and appellant no .6 Dina Mahto are alleged to have assaulted Inderdeo Mahto (P.W.-4) by Spear and “Barchhi” respectively. Ramautar Mahto (appellant no .5) is alleged to be present at the scene of crime with a pistol in his hand. Co-accused Bhulan and Ramdeni Mahto (appellant no. 4) who were armed 3 with Lathi are alleged to have assaulted father of the informant Inderdeo Mahto on his both shoulders. Co-accused Dayali Kumhar is alleged to have assaulted Bindeshwar Ram (P.W.-6) by „Katari‟ which hit him on his right hand. Appellant No. 1 Rajdeo Mahto is alleged to have caused injury by means of Gandasa upon Bindesar Ram (P.W.-6) on his left leg. Co-accused Chandradeo Mahto is alleged to have indiscriminately assaulted P.W.-4 Inderdeo Mahto by „Lathi‟ causing injury on his shoulders and waist. Co-accused Pahlu Thakur and Prem Thakur are also alleged to have assaulted indiscriminately by Lathi upon P.W.-4 Inderdeo Mahto. 3. It is stated in the oral statement of informant that on alarm being raised Jichhori Manjhi, Santoshi Yadav, Jamuna Mahto, Ramnath Mahto, son of Rohan Mahto and another Ramnath Mahto, resident of Village-Rambigha, Pratap Mahto and others reached at the place of occurrence from neighbouring field. They not only witnessed the occurrence but intervened too in order to pacify the dispute. In the meantime, the Officer-in-Charge of the police station together with a contingent of armed force and police personnel reached at the place of occurrence, as a result of which the informant claims that he could be saved and the accused persons fled away. The motive behind the occurrence is alleged to be long standing dispute with respect to land appertaining to plot no. 206 between the parties and a proceeding under Section 107 Cr. P.C. was going on between them. On the basis of aforesaid oral statement of the informant Ganga Dayal Mahto (P.W.-5), a formal F.I.R. was drawn on the same day at 8:30 p.m. by Md. Ayub Shah. The case was initially registered under Sections 147, 148, 149, 324, 323, 307 of the Indian Penal Code against altogether 11 accused persons including the six appellants. 4 4. The injured Inderdeo Mahto father of the informant died in Daud Nagar Government Hospital on the date of occurrence itself. The police on conclusion of investigation submitted charge sheet under Sections 147, 148, 149, 302, 324 of the Indian Penal Code as also under Section 27 of the Arms Act against the appellants, Dayali Kumhar, Pahlu Thakur, Prem Thakur and Bhulan Mahto. Since co-accused Bhulan Mahto died even before framing of charge his name was expunged. The learned C.J.M. on receipt of the charge sheet took cognizance of the offence. After supplying the police papers in terms of Section 207 of the Code of Criminal Procedure, the case was committed to the court of sessions as the offence alleged was exclusively triable by the court of sessions. 5. All the nine (9) accused persons were charged under Section 148 IPC. Accused Rajdeo Mahto, Narad Mahto, Suba Mahto, Ramdeni Mahto and Dayali Kumhar were further charged under Section 302 of the Indian Penal Code for committing murder of Inder Mahto. Remaining four accused persons namely, Ramautar Mahto, Dina Mahto, Pahlu Thakur and Prem Thakur were charged under Section 302/149 of the Indian Penal Code. Further, accused Rajdeo Mahto, Narad Mahto, Dina Mahto, Pahlu Thakur and Prem Thakur were charged under Section 307 of the Indian Penal Code for attempting to commit murder of Inderdeo Mahto (P.W.-4). Accused Rajdeo Mahto had been further charged under Section 326 of the Indian Penal Code for voluntarily causing grievous hurt to Bindesar Ram (P.W.-6) by means of Gandasa. 6. The defence did not plead guilty and claimed to be tried. The prosecution in order to prove the charges examined altogether 8 witnesses. P.W.- 1 Anwar Iqbal and P.W.-8 Hari Narayan Singh are formal witnesses. P.W.-1 has proved writing of the Investigating Officer on the fardbeyan as well as on the 5 formal first information report whereas P.W.-8 has stated that Dr. L.P. Jaiswal, who had conducted autopsy on the dead body of Inder Mahto was already dead and was not available for deposition in the court. P.W.-7, Dr. Braj Kishore Prasad is the doctor, who had examined the injured persons. P.W.-2 Ramnath Mahto, P.W.-3, Jamuna Mahto, P.W.-4 Inderdeo Mahto, P.W.-5 Ganga Dayal Mahto and P.W.-6 Bindesar Ram claims to be eye-witness. P.W.-4 Inderdeo Mahto and P.W.-6 Bindeshwar Mahto had also sustained injuries as per prosecution case in the alleged incident. 7. Besides the oral testimony, the prosecution has proved formal F.I.R. (Exhibit-1), Fardbeyan (Exhibit-2), Signature of Ganga Dayal Mahto on the fardbeyan (Exhibit-2/1), Seizure list (Exhibit-3), Carbon copy of the inquest report (Exhibit-4), Injury report of Inder Mahto (Exhibit-5), Injury report of Inderdeo Mahto (Exhibit-6), Injury report of Bindesar Ram (Exhibit-6/1) and Post-mortem report of Inder Mahto (Exhibit-7). 8. After conclusion of the prosecution evidence, statement of accused persons was recorded under Section 313 Cr.P.C. The defence is of total denial of the occurrence and false implication of the accused persons. The defence neither adduced any oral evidence nor exhibited any documentary evidence on their behalf. On conclusion of the trial, the trial court acquitted three of the co-accused namely, Dayali Kumhar, Pahlu Thakur and Prem Thakur, who faced trial along with the appellants, finding no evidence against them to substantiate the alleged charges. However, the appellants have been convicted and sentenced in the manner stated above. 9. P.W.-1 Anwar Iqbal is an A.S.I. of police and is a formal witness. In his examination-in-chief he stated that the Police Officer Ayub Shah, who 6 recorded the fardbeyan, drew the F.I.R., conducted the investigation and submitted charge sheet, had already died. As stated above, he proved writing of Ayub Shah on the formal F.I.R. and fardbeyan, which were marked Exhibits- 1 & 2 respectively. In cross-examination, this witness has stated that the fardbeyan was not recorded in his presence and Ayub Shah died 2-3 years ago. 10. P.W.-2 Ramnath Mahto is a chance witness. In his examination- in-chief he has stated that on the relevant date and time of occurrence, he was going towards Katariya Badhar. On alarm being raised, he went to the field of Inder Mahto and found cultivation going on. Appellant no. 1 Rajdeo Mahto and appellant no. 2 Narad Mahto assaulted by Gandasa on head of Inder Mahto. Suba Mahto assaulted him by „Spear‟. Dina Mahto assaulted him by “Barchha”. Bhulan Mahto and Ramdeni Mahto assaulted Inder Mahto by Lathi. He further stated that Rajdeo Mahto, Narad Mahto, Suba Mahto, Ramautar Mahto, Bhulan Mahto and Ramdeni Mahto assaulted P.W.-5 Ganga Dayal Mahto (the informant) and P.W.-6 Bindeshar Ram. Due to aforesaid injuries, Inder Mahto died in the hospital on the same day in the evening. In cross-examination, P.W.-2 has stated that his statement was recorded by police on the date of occurrence itself. He admitted that he did not disclose to the police regarding the weapons used by the accused persons at the time of assault upon the deceased Inder Mahto. In reply to the suggestion that appellant Ramautar Mahto had instituted a criminal case against him he stated that he was not aware of the fact. From the trend of the deposition of this witness, it is apparent that he has not given a truthful account of the occurrence. It is nobody‟s case that the informant Ganga Dayal Mahto had received any injury in the alleged occurrence but this witness has stated that Rajdeo Mahto, Narad Mahto, Suba Mahto, Ramautar Mahto, 7 Bhulan Mahto and Ramdeni Mahto assaulted and injured Ganga Dayal Mahto also. Further, this witness has admitted in cross-examination that he did not state before the police regarding the weapons used by the accused persons while assaulting the deceased or injured persons. The I.O. being dead has not been examined. Even on own admission of P.W.-2 there is marked improvement in his version when he has deposed before the court almost 8 years after the alleged occurrence. He has improved to the extent of assigning weapons in the hand of each of the appellants which was used by them at the time of occurrence. It would also be relevant to point out here that even in the F.I.R. it is not alleged that Ramautar Mahto had participated in assault on any of the members of the prosecution party but this witness has alleged that he too participated in the assault. 11. P.W.3 Jamuna Mahto is also a chance witness. He claims that on the relevant date and time of occurrence, he was going towards Katariya and when he reached near Katariya Badhar he saw Inder Matho cultivating his land and altercation was going on. Immediately, thereafter, appellant Rajdeo Mahto and Narad Mahto assaulted on the head of Inder Mahto by Gandasa and Suba Mahto and Dina Mahto assaulted him by „Bhala‟ and „Barchha‟ respectively. Bhulan Mahto and Ramdeni Mahto assaulted him by „Lathi‟. He has also stated in his chief that appellant Rajdeo Mahto, Narad Mahto and Suba Mahto had assaulted P.W.-4 Inderdeo Mahto by „Gandasa‟. Bindeshwar Ram (P.W.-6) was also assaulted but he could not say as to who assaulted him. He has also stated that as a result of injury, Inder Mahto died on the same day in Daud Nagar Hospital. In cross-examination, P.W.-3 has admitted that appellant Ramautar Mahto had instituted a case under Section 302 of the Indian Penal Code against 8 him. He did not recollect as to whether he had stated before the police regarding the respective weapons possessed by each of the accused persons at the time of occurrence. When he reached at the place of occurrence, the witnesses, Santoshi, Jichhori and others were also there. One thing is important to note here that P.W.-2 Ram Nath Mahto has stated in para 7 of his deposition that on the date of occurrence his statement was recorded at the place of occurrence itself whereas P.W.-3 in his deposition in para 7 has categorically stated that the police had recorded his statement as also statement of Ramnath Mahto in the police station. This witness is admittedly having animosity with appellant Ramautar Mahto from before. He though claims to be present at the place of occurrence, mysteriously states that he cannot say as to who assaulted P.W.-6 Bindeshwar Ram. 12. P.W.-4 Inderdeo Mahto is an injured eye-witness. It is to be noted here that P.W.-2 and P.W.-3 claiming themselves to be eye-witness have stated that at the time of occurrence it was the deceased Inder Mahto who was cultivating his land, but P.W.-4 states that on the relevant date and time of occurrence, he was present at the place of occurrence and it was P.W.-6 Bindeshwar Ram who was cultivating the land. Apart from him, deceased Inder Matho and his son Ganga Dayal Mahto (the informant) were present there. According to him, appellant Rajdeo Mahto and Narad Mahto assaulted upon Inder Mahto by means of Gandasa, and when he intervened in order to rescue him appellant Rajdeo Mahto assaulted upon his head by Gandasa and appellant Narad Mahto assaulted upon his back by Gandasa. He has further stated that Narad Mahto and Rajdeo Mahto cut both the legs of P.W.-6 Bindeshwar Ram. Further, according to him, appellant Ramdeni Mahto and co-accused Bhulan 9 Mahto assaulted upon him and upon Inder Mahto by Lathi. Suba Mahto assaulted by „Spear‟ and his son Dina Mahto assaulted by „Barchhi‟ upon deceased Inder Mahto. After the assault accused persons fled away. The police came and all the injured were taken to hospital by police where in course of treatment Inder Mahto died. He admits that the informant Ganga Dayal Mahto is his brother-in-law (sister‟s husband). He denies knowledge of the fact that appellant Ramautar Mahto had instituted a case under Section 302 IPC upon him, his brother-in-law and the deceased. He claims that his statement was recorded by the police at the place of occurrence itself. In cross-examination, he admits that the police stayed in the hospital for almost 4 hours. He has stated that he was present in the village as he had gone to take back his sister to her parental home. 13. P.W.-5 is the informant. In his examination-in-chief he like P.W.-4 has stated that on the relevant date and time of occurrence, it was his Banihar (labourer) Bindeshwar Ram (P.W.-6), who was cultivating the land. He did not obey the dictates of the accused persons when they forbade him from ploughing the disputed land. In his deposition, he has stated that Rajdeo Mahto and Narad Mahto armed with Gandasa, Bhulan Mahto and Ramdeni Mahto armed with Lathi, Suba Mahto armed with „Bhala‟, Dina Nath Mahto armed with „Barchha‟ and Ram Nath Mahto armed with pistol had come to his filed and appellant Narad Mahto and Rajdeo Mahto assaulted upon the head of his father whereas appellant Ramdeni Mahto and accused Bhulan Mahto assaulted upon him by „Lathi‟ and Dinanath Mahto and Suba Mahto assaulted upon him by „Barchha‟ and „Bhala‟. When Inderdeo Mahto intervened Rajdeo Mahto and Narad Mahto assaulted him by Gandasa and Bhulan Mahto and Ramdeni Mahto 10 assaulted him by „Lathi‟. Rajdeo Mahto and Narad Mahto assaulted on the leg of Bindeshwar Ram, as a result of which his left leg was amputated. Bhulan Mahto and Ramdeni Mahto had assaulted him by „Lathi‟. He has further stated that Jichhori Manjhi, Jamuna Mahto, Santoshi Yadav, Ramnath Mahto and Ramna Mahto had come at the place of occurrence when the incident took place. In his chief, P.W.-5 states that 15-20 minutes after the occurrence, the police had arrived at the place of occurrence. The Investigating Officer, namely, Ayub Shah had recorded his statement at the place of occurrence itself. He has proved the fardbeyan as well as his signature over the fardbeyan, which have been marked as exhibit-2 and 2/1 respectively. He has also proved seizure list which was prepared by the Investigating Officer Ayub Shah with respect to recovery of spectacle and seizure of blood-stained earth. The said seizure list was marked as exhibit-3. He states that the I.O. sent all the three injured to hospital where his father died on the same day. After his death, the Investigating Officer prepared the inquest report in presence of the witnesses. He had proved carbon copy of the inquest report which was marked as exhibit-4. P.W.-5 is an important witness. It is he, on whose fardbeyan, the F.I.R. was instituted. One thing is relevant to point out here that all the witnesses including P.W.-5 have given a clean chit to co-accused Prem Thakur, Pahlu Thakur and Dayali Kumhar. This witness in his cross-examination clearly admits enmity existing from before relating to the land in question but he fails to disclose from which court the case was decreed in his favour. In cross-examination, he clearly states that he does not know Prem Thakur and Pahlu Thakur. He saw the occurrence from a close distance. His father sustained 10-15 Lathis, 4-5 Spear injuries and several Gandasa injuries. P.W.-4 though claims to be present at the place of occurrence since beginning 11 but P.W.-5 has stated that on hearing hue and cry his brother-in-law came to the place of occurrence. He further stated that his brother-in-law was assaulted four times by Gandasa by appellant Narad and Rajdeo. Both of them had assaulted him on his head. His brother-in-law had also sustained 4-5 Lathi injuries. P.W.-6 Bindeshwar Ram had received injuries both on his left and right legs at the hands of appellants Rajdeo and Narad. P.W.-5 has further stated that when the occurrence took place, he fled towards his village. Before he left the place, Pratap Mahto and Jamuna Mahto had come there. Subsequently, he came along with the police and at that time injured persons were present at the place of occurrence. When he reached at the place of occurrence along with the police party, Jichhori Manjhi, Ramnath Mahto, Santoshi Yadav and Ramna Mahto had come. His father was carried to the hospital on a cot from the place of occurrence. In his cross-examination, he has stated that the doctor had examined all the three injured in the hospital. When his father was examined by the doctor, he died. The police prepared inquest report in the hospital itself. He denied the suggestion that he had no concern with the land in question. He had not seen the occurrence and the injured person had received injuries at different place but subsequently, the accused persons were implicated falsely in this case. The relevance of deposition of this witness would be discussed later on. 14. P.W.-6 Bindeshwar Ram is another injured witness. He has stated that at the time of occurrence he was cultivating land of the informant. At that time, he was his Banihar (Labourer). Ganga Dayal Singh his father and Inderdeo Singh were present. The appellant Rajdeo Mahto assaulted on his leg by means of Gandasa, as a result of which he became unconscious. Both his legs were cut. In cross-examination, he has stated that at the time of occurrence he did 12 not know appellant Rajdeo. The police had not recorded his statement. At the time of occurrence, no one of village-Alpa or Mamrejpur was present. Hence, from the deposition of this witness, it is clear that though he claims to be present at the time of occurrence he has attributed assault as against Rajdeo Mahto alone in his examination-in-chief. However, in cross-examination, he admitted that he had no connection with village-Mamrejpur and he did not even identify the appellant Rajdeo Mahto at the time of occurrence and his statement was never recorded by the police. 15. P.W.-7 is doctor Braj Kishore Prasad. He examined the injured persons on 31.1.1990. He has stated that the deceased was brought in an unconscious stage. There was multiple injuries on his person. On his death the police was informed. The examination report of Inder Mahto is marked as exhibit-5. On the same day at 4:00 p.m., he examined P.W.-4 Inderdeo Mahto and found following injuries on his person:- (i) One incised wound 5” x ½” x ½” oblique over left portion of scalp leading to cut of scalp bone partially. (ii) Bruise 3” x 1” over left arm. (iii) Bruise 2” x 1” over right arm. (iv) Bruise 3” x 1” over back. According to him Injury no. 1 was grievous in nature caused by sharp cut instrument such as Gandasa and the remaining injuries were simple in nature caused by hard and blunt substance such as Lathi. The age of his injuries was within 6 hours. He has proved the injury report of Indradeo Mahto which has been marked as Ext.-6. On the same day at 5:30 p.m. he examined P.W.-6 Bindeshwar Ram 13 and found the following injuries on his person:- (i) Incised wounds 2” x ½” x ½” over and above right ankle leading to one cut both tibia and fibula. (ii) Incised wound of similar nature and size of injury no. 1 on right leg. Both the injuries were grievous in nature caused by sharp cutting weapon such as Gandasa. The age of injuries was within 6 hours. He has proved the injury report of Bindeshwar Ram which has been marked as Ext.-6/1. P.W.-7 has also proved the post mortem report of Inder Mahto, which has been marked as exhibit-7. 16. A perusal of post mortem report (Exhibit-7) shows that following ante mortem injuries were found on the person of deceased:- (i) Lacerated cut 1 ½” x 1” x bone deep just on the back of left ear, with fracture of left temporal bone. (ii) Lacerated cut 1 ½” x 1 ¼” x scalp deep in left parietal region of scalp. (iii) Lacerated cut of 2” x ½” x scalp deep left side of frontal region of scalp with depressed fracture of left frontal bone subdural heamatoma were present in both sides of crania. (iv) Swelling left side of chest 5” x 6” in front and lateral side with fracture of shaft of 5th to 8th ribs. (v) Lacerated cut 3” x 1” x upto bone depth on the back and lateral side of right fore-arm just above the wrist with fracture of right radius and ulna bones. (vi) Lacerated cut 3” x 1” x upto bone depth cutting almost all 14 structures except two tendous on the back of left forearm just above the wrist. (vii) Swelling dorsum of right foot 3” x 3” with fracture of 1st to 4th metadorsal bones. 17. The post mortem examination was conducted by Doctor L.P. Jaiswal who according to P.W.-8 Hari Narayan Singh had already died but P.W.- 8 could not disclose in cross-examination as to when and how doctor L.P. Jaiswal died. According to the post mortem report all the injuries were caused by hard and blunt weapon applied with great force except first to third injuries mentioned therein which were caused by