CRIMINAL APPEAL No. 130 OF 1988 With CRIMINAL APPEAL NO. 131 OF 1988 With CRIMINAL APPEAL NO. 143 OF 1988 *** Against the judgment and order dated 25.2.1988 passed by Sri Chakradhar Rai, Additional Sessions Judge IX, Patna, in Sessions Trial No.59 of 1984. *** In Cr. Appeal No.130 of 1988 1.Sahdeo Mahto 2.Ram Baran Mahto---------------------------------Appellants Versus The State of Bihar--------------------------------Respondent *** In Cr. Appeal No.131 of 1988 1.Ram Briksh Mahto 2.Krishna Mahto 3.Indradeo Mahto 4.Ram Ashish Mahto 5.Ram Nandan Mahto 6.Jugal Mahto 7.Ram Ashray Mahto--------------------------------Appellants Versus The State of Bihar--------------------------------Respondent *** In Cr. Appeal No.143 of 1988 Raghu Nandan Yadav---------------------------------Appellant Versus The State of Bihar--------------------------------Respondent *** For the Appellants: Mr. Ram Balak Mahto, Sr.Advocate Mr. Ramnandan Pd. Sinha, Advocate (In all criminal appeals) For the State : Mr. Lala Kailash Bihari Prasad, Sr. Advocate (In all criminal appeals) 2 P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SYED MD.MAHFOOZ ALAM *** S.M.M.Alam, J. All the ten appellants in three appeals have preferred these criminal appeals against the judgment and order dated 25.2.1988, passed in Sessions Trial No.59 of 1984, by the then 9th Additional Sessions Judge, Patna, whereby he has been pleased to convict all the abovenamed appellants under Section 302/149 of the Indian Penal Code (hereinafter called “I.P.C.”), and sentenced each of them to undergo rigorous imprisonment for life. They have further been convicted under section 323 of the I.P.C. and have been sentenced to undergo rigorous imprisonment for one year. Appellant Sahdeo Mahto has been convicted under Section 302/109 of the I.P.C., and sentenced to undergo rigorous imprisonment for life and to undergo rigorous imprisonment for three years under Section 324 of the I.P.C. The learned Additional sessions Judge has been pleased to order that all the sentences shall run concurrently. 2. The prosecution case, in brief, is that on 24.3.1983, at 7 A.M., Bhim Prasad (P.W.1), who happened to be the son of Ramchandra Singh, came to Mokama Police Station and submitted a written statement attributed to injured Ramchandra Singh (now deceased) having his L.T.I. over the same stating therein that in the night of 23/24.3.1983 he was sleeping at his 3 Khalihan situated at Mahadeo Asthan. At about 11 P.M., he heard the sound of foot-steps whereupon he woke up and tried to get up from his cot flashing torch light. In the meantime, he was surrounded by Sahdeo Mahto, Raghunandan Mahto, Ram Baran Mahto, Ramashray Mahto, Ramashish Mahto, Ramsagar Mahto, Ramnandan Mahton, Jugal Mahto, Krishna Mahto, Indradeo Mahto and Ram Briksh Mahto. They all belonged to village Dhanal Dobh, P.S. Mokama, District, Patna. Out of the abovenamed persons, appellant Sahdeo Mahto ordered to kill him and simultaneously, gave bhala blow which struck on the upper portion of his eye. After that, appellants Raghunandan Yadav, Ram Baran Mahto, Ramashray Mahto, Ramashish Mahto, Jugal Mahto, Ramnandan Mahto and one Ram Sagar Mahto (not appellant) assaulted him with bhala and Krishna Mahto, Indradeo Mahto and Ram Briksh Mahto assaulted him with lathi. Jagdish Singh (P.W.9) was sleeping near the said place of occurrence. He started raising alarm whereupon he was also assaulted by the abovenamed persons with bhala and lathi. On hulla, Radheshyam Singh (P.W.4), Ram Swarath Singh alias Ram Swarath Sharma (P.W.8), Ram Kishori Singh (P.W.2), and Dinesh Singh (P.W.3) came there and saw the occurrence in the torch light. On seeing them coming, the abovenamed persons fled away. The motive of the occurrence was that above named persons were in the habit of committing theft of crops and grazing the standing crops by their cattle and one day prior to the occurrence the informant had asked them not to graze their 4 cattle and not to damage the standing crops which had caused annoyance to the abovesaid persons and on that, an altercation had taken place between the informant and appellant Sahdeo Mahto, who had threatened him to do away with his life. 3. On submission of the written report by P.W.1 Bhim Prasad Singh, initially a case bearing Mokama P.S. Case No.72 dated 24.3.1983 under Sections 147, 148, 149, 307, 323 and 324 of the Indian penal Code was instituted and investigation of the case was taken up by S.I. Parshuram Singh (P.W.11), but during investigation the injured Ramchandra Singh died on 9.4.83 and as such, Section 302 of the I.P.C. was also added. 4. During investigation P.W.11 visited the place of occurrence, recorded the statements of the witnesses and prepared seizure list, also recorded the statement of injured Ramchandra Singh (now deceased), prepared inquest report and obtained post-mortem report of the deceased and thereafter submitted charge sheet against the appellants on the basis of which the learned A.C.J.M., Barh, took cognizance and then he committed the case to the Court of Session, vide order dated 16.2.1984. Thereafter on 2nd May, 1986, charges were framed under different heads against the appellants who pleaded not guilty and claimed to be tried and then they were put on trial and by the impugned judgment, they were convicted and sentenced as stated above. 5. The defence of the appellants was total denial of the occurrence and of false implication and that no such 5 occurrence had taken place in the manner as alleged by the prosecution on the alleged date and time and on the alleged place of occurrence. 6. In support of its case, the prosecution has examined as many as 11 witnesses, namely, Bhim Prasad Singh P.W.1, Ram Kishori Singh P.W.2, Dinesh Singh P.W.3, Radheshyam Singh P.W.4, Dr. B.K.Sethy P.W.5, Brahmdeo Prasad Singh P.W.6, Dr. Baldeo Prasad Singh P.W.7, Ram Swarath Singh @ Ramswarath Sharma P.W.8, Jagdish Singh @ Jagdish Kumar P.W.9, Raj Nandan Singh P.W.10 and Parshuram Singh P.W.11. Besides the oral evidence, the prosecution has brought some documentary evidence which have been taken as exhibits. Ext.1 is the written statement of the deceased. Ext.2 is the injury report of deceased Ramchandra Singh. Ext.2/1 is the injury report of Jagdish Singh (P.W.9). Ext.3 is the bed-head ticket. Ext.4 is the inquest report. Ext.5 and Ext.5/1 are signatures of Brahmdeo Singh and Ramashish Sharma over Ext.4. 7. The defence has neither examined any defence witness nor has brought any documentary evidence on record. 8. According to the written report (Ext.1), the prosecution case, as disclosed by deceased Ramchandra Singh, is that in the night of 23/24.3.1983 at about 11 P.M. while he was sleeping in the Khalihan situated at Mahadeo Asthan, he felt the sound of foot-steps of some persons whereupon he tried to get up and flashed torch light and in the torch light he identified the above named appellants besides one Ram Sagar 6 Mahto. They all surrounded him and thereafter Sahdeo Mahto exhorted others to kill him and himself gave bhala blow causing injury to him just above the eye and then Raghunandan Mahto, Baran Mahto, Ramashray Mahto, Ram Sagar Mahto (not appellant), Ramashish Mahto, Jugal Mahto and Ram Nandan Mahto assaulted him with bhala and appellants Krishna Mahto, Indradeo Mahto and Ram Briksh Mahto assaulted him with lathi. It is also the prosecution case that when Jagdish Singh (P.W.9) came to rescue him, he was also assaulted by the appellants with bhala and lathi. Ramchandra Singh being injured was taken to Nazarath Hospital, Mokamah, where during the treatment he succumbed to his injuries. 9. Let me see - whether the above prosecution case, as disclosed by deceased Ramchandra Singh in Ext.1, finds support from the evidence available on record or not. In this regard first of all, I would like to incorporate the evidence of (P.W.5) Dr. B.K.Sethy, Surgeon Incharge, Nazarath Hospital, Mokamah, who had examined injured Ramchandra Singh (now deceased). His evidence is as follows:- On 24.3.1983 at 1.45 A.M. he had examined injured Ramchandra Singh aged about 60 years and found the following injuries on his person:- (i) Left eye black with bleeding with deep laceration 2 1/2” x 1” on the left upper orbital margin to the nose between eyeball and bone. Also fracture of the orbital bone 7 with severe bleeding through both nostrils, left vision doubtful. (ii) Carved lacerated cut 1” x 1/4” x bone deep. Also fracture felt on left zygomatic bone. (iii) Two laceration, bleeding, each measuring 1” x 1/2” left cheek bleeding. X-ray for above injuries, skull and face was taken which showed fracture of frontal bone and supra-orbital margin. Both maxillary autrum seen opaque. (iv) Laceration ½” x ½” x bone deep on the left forearm with deformity and fracture felt. X-ray taken left forearm showed double fracture of ulna upper 1/3rd and lower 1/3rd. (v) Lacerated cut left arm ½” x ½” x muscle deep. (vi) Lacerated cut 2” x 1” x full thickness percostum of the bone cut on the left side of scalp Periostinal was ½” x ¼” area was damaged. (vii) Laceration 1” x ½” on the left parietal area. He has opined that injury nos. (i), (ii), (iii), (iv) and (vi) were grievous in nature caused by sharp, heavy objects with pointed edge may be by bhala. With regard to injury nos. 8 (v) and (vii), P.W.7 has opined that the same are simple in nature caused by sharp, long object such as bhala. He has further opined that all the injuries were caused within 3 to 6 hours. He has proved injury report which has been marked as Ext.2. 10. Another important witness on this point is P.w.7 Dr.Baldeo Prasad Singh as he had conducted post-mortem examination of the dead body of deceased Ramchandra Singh. I would like to incorporate his evidence also. His evidence is as follows:- On 9.4.83 he was posted as C.A.S. at Sub-divisional Hospital, Barh. On the same day at 2.30 P.M. he held post-mortem examination on the dead body of Ramchandra Singh which was brought from Nazarat Hospital, Mokama. On examination of the dead body, he found the following injuries. (A) Head (i) Left side of the frontal part of the head, healed wound size 1”. (ii) Mid of the head direction interior posterior, healed wound size 2” (iii) Right eye and area surroundings it swelling brownish black size 2 ½” x 2 ½”. (iv) Conjunctivitis of right eye colour reddish. 9 (v) Swelling in the front of the right ear, size 2” x 1”. On opening of the swelling foul, swelling pus came out. (vi) On opening the skull membrane were congested, blood clot was present on the frontal region of brain. (B) Left Upper Limbs (i) Plaster was present on the half of the palm and above. On opening the plaster and dissecting the palm, fracture of the ulna and callus was present. © Right upper limb near the wrist joint (i) wound in the stage of healing size ¼” x ¼‟” x ¼” (C) Heart Chamber (ii) Left heart empty, right heart slight amount of blood was found. P.W.7 has opined that all the injuries were ante-mortem in nature. Injury nos. (iii), (iv) and (v) of „A‟ and injury no.1 of „B‟ were caused by hard and blunt substance, may be by lathi or lathi portion of bhala. Regarding injury nos. (i) and (ii) of „A‟, and injury No.(i) of „C‟, P.W.7 has deposed that it was difficult to assess with what weapon the same were caused due to surgical interference. P.W.7 has further deposed that the injuries found by him on the person of deceased Ramchandra Singh were sufficient in the ordinary course of 10 nature to cause death and the cause of death was head injury. He has proved his post-mortem report which has been marked Ext.6. 11. From the evidence of P.W.5, it is established beyond doubt that on 24.3.83 at 1.45 A.M., deceased Ramchandra Singh was admitted into Nazarath Hospital, Mokamah, for treatment of his injuries. The evidence of P.W.7 supports that the dead body of Ramchandra Singh was brought from Nazarath Hospital for post-mortem examination. The evidence of P.W.5 further shows that injured Ramchandra Singh had as many as seven injuries on his person and some were grievous, whereas some were simple in nature and the same were caused by sharp- cutting weapon such as bhala. His evidence further shows that he had found at least two injuries near his left eye as a result of which left orbital bone and left zygomatic bone were found fractured which were also confirmed by X-ray. The evidence of P.W.7, who had conducted post-mortem examination on the dead body of Ramchandra Singh, also supports that he had found healed wound of the size of 1” on the left side of frontal part of the head of the deceased besides one injury of 2” size on the mid of his head. Thus, the evidence of the two doctors supports the prosecution story that during the occurrence the deceased had sustained injuries on his person. However, there appears some contradiction in the evidence of P.W.5 and P.W.7 with regard to the weapon used in the commission of the offence. According to P.W.5, most of the 11 injuries were caused by means of sharp-cutting weapon(s) such as bhala but, according to P.W.7, all the injuries were caused by hard and blunt substance. In my view, this contradiction between the evidence of P.W.5 and P.W.7 does not adversely affect the prosecution case as P.W.7 has explained it by saying that due to surgical interference he was not in a position to assess with what weapon injury nos. 1 and 2 of „A‟ and 1 of „C‟ were caused. However, both the witnesses (P.W.5 and P.W.7) are unanimous that the injuries were sufficient in the ordinary course of nature to cause death of the deceased which proved beyond doubt that due to the above-mentioned injuries deceased Ramchandra Singh had died. 12. Now I will examine as to whether the prosecution witnesses have been able to prove the prosecution case that those injuries were caused to the deceased by the appellants on the alleged date and time of occurrence. I have already found above that injured Ramchandra Singh, who was the informant of this case, had succumbed to his injuries during course of treatment, as such he was not available before the trial court to give his evidence in support of his written report but P.W.11 Parshuram Singh, who is the Investigating Officer, has deposed at paragraph 6 of his deposition that he had recorded the further statement of the informant Ramchandra Singh which has been incorporated in the case diary. He has proved the said further statement of Ramchandra Singh which has been marked as Ext.9. Since Ramchandra Singh is now dead, 12 as such his statement recorded under Section 161 of the Code of Criminal procedure is admissible in the evidence and can legally be taken into consideration. His evidence shows that he has supported his written report (Ext.1). 13. It has been argued by the learned Advocate of the appellants that the written statement as well as further statement of Ramchandra Singh are doubtful pieces of evidence and no reliance can be placed upon them. At an appropriate stage, I would like to discuss this argument of the learned Advocate of the appellants. 14. Coming to the evidence of the prosecution witnesses, first of all I would like to discuss the evidence of P.W.1 Bhim Prasad Singh, who is the son of the informant (now deceased) and although he is not an eye witness of the occurrence but his evidence is important as he was the author of the written statement attributed to deceased Ramchandra Singh. His evidence is as follows:- Ramchandra Singh was his father. The occurrence took place in the night of 23/24 March, 1983. It was Wednesday night. On the dictation of his father, he had scribed the written statement and thereafter his father had put his L.T.I over the same (marked Ext.1). He has further deposed that at the time of dictating the written statement, his father was fully conscious. He has further deposed that he had seen the injuries on the person of his father who was admitted to Nazarath Hospital, Mokamah, and that he had accompanied his 13 father to the Hospital. He has further deposed that on 9.4.1983, at about 10 A.M., his father died. He has further deposed that he had handed over the written statement of his father (Ext.1) to Mokama Police Station on 24.3.1983, at about 7 A.M. 15. The evidence of P.W.1 establishes that he is not an eye- witness of the occurrence, and with regard to the manner of occurrence and the identity of person who had caused injury to his deceased father, he is silent and has not stated any word in his examination-in-chief. However, his evidence is important in this respect that he is the author of Ext.1 which discloses the manner of occurrence and the names of the accused persons who had caused injuries on the person of the deceased on the alleged date of occurrence. The evidence of P.W.1 further shows that he had seen the injuries on the person of his father and he had taken him to Nazarath Hospital, Mokama, for treatment and that till he was admitted into Nazarath Hospital, he was in conscious condition. The fact that the deceased was in state of consciousness is also established from the evidence of P.W.5 Dr. B.K. Sethy who has deposed at paragraph 3 of his deposition that at the time of his examination, the patient was fully conscious and his speech was fair. Admittedly, P.W.5 being a doctor is an independent witness and there is nothing on record to show that he was influenced in any manner by the prosecution side, as such there is no reasonable ground to believe that P.W.5 14 has falsely deposed that when Ram Chandra Prasad Singh was admitted to Hospital, he was fully conscious. I, therefore, discard the argument of the learned Advocate of the appellants that after sustaining such serious injuries, Ramchandra Prasad Singh (deceased) could not have remained in a state of consciousness and hold that from the evidence of P.Ws.1 and 5, it is established that deceased Ramchandra Singh was in a state of consciousness till he was admitted into Nazarath Hospital and that he was also in a position to speak. Thus, I do not find any infirmity in the evidence of P.w.1 except his statement that he had scribed the written statement (Ext.1) partly on bullock-cart and partly in Nazarat Hospital, Mokama. 16. It was argued by the learned Advocate of the appellants that the writing of Ext.1 shows that it would have never been possible to write it on the bullock-cart while the bullock- cart was moving ahead. I am of the view that if the statement of P.W.1 made at paragraph 5 is minutely read then it would mean that Ext.1 was partly scribed at Government Hospital and partly at Nazrath Hospital. So, this argument of the defence does not appeal to my mind. 17. The next witness, i.e. P.W.2 Ram Kishori Singh, is on the point of occurrence. He has deposed that at the time of occurrence deceased Ramchandra Singh was in his Khalihan at Dhanakdobh Mahadeo Asthan. The said Khalihan was in the east of his own Khalihan situated at a distance of 10 to 20 Yards. He has further deposed that Khalihan of Jagdish Singh, 15 Radheshyam and Ram Swarath were also situated near his Khalihan. He saw the accused persons coming from the western side and identified Sahdeo Mahto, Raghunandan Yadav, Baran Mahto, Ramashray Mahto, Ram sagar Mahto, Ramashish Mahto, Jugal Mahto, Ram Nandan Mahto, Krishna Mahto, Indradeo Mahto and Ram Briksh Mahto. Krishna, Indradeo and Ram Briksh were armed with lathi whereas rest were armed with Bhala. He has further deposed that he identified the above-named persons in the moonlit night and also in the torch light. They all went near the cot of Ramchandra Singh and appellant Sahdeo Mahto gave order to kill him and simultaneously, he attacked Ramchandra Singh with bhala. Thereafter all the other accused persons assaulted him with their respective weapons. Jagdish (P.W.9) rushed to save Ramchandra Singh whereupon he was also assaulted by Ram Baran Mahto and Raghunandan Mahto. When some persons from nearby Khalihan assembled, the above named persons fled away. P.W.2 has further deposed that the other witnesses also identified the appellants in the torchlight. After the occurrence injured Ramchandra Singh was sent to Mokama Hospital on bullock-cart. 18. The next witness on the point of occurrence is P.W.3 Dinesh Singh. His evidence is as follows:- The occurrence took place about 3 ¼ years ago in the month of Phagun. It was Wednesday night. At that time he was in his Khalihan. Ramchandra Singh (deceased) was sleeping on a cot. The Khalihan of Ramchandra Singh is towards south of his 16 Khalihan. He saw sahdeo Mahto, Raghu Yadav, Baran Mahto, Ramashray Mahto, Sagar Mahto, Ramashish Mahto, Jugal Mahto, Ramnandan Mahto with bhala in their hands, Krishna Mahto, Indradeo Mahto and Ram Briksh Mahto with lathi in their hands assaulting Ramchandra Singh. He flashed torch light and in the torchlight he identified all the above named persons. He has further deposed that at the time of occurrence Kishori Singh (P.W.2) was raising hulla and on his hulla several persons of the vicinity reached there who were watching their fields from their respective Khalihans. He has further deposed that besides Ramchandra Singh, Jagdish singh (P.W.9) was also assaulted. He saw several injuries on the person of Ramchandra Singh who was in a state of consciousness and he was in a condition to speak. He was removed to the hospital for his treatment. At paragraph 11 of his cross-examination he has deposed that the Khalihan of deceased Ramchandra Singh was at a distance of about 2 to 4 bans (bamboo) from his Khalihan. He has further deposed in the same paragraph that one bamboo is equal to 5 ½ hand which goes to show that the Khalihan of this witness was nearer to Khalihan of the deceased Ramchandra Singh and there was every possibility of his identifying the assailants of Ramchandra Singh from such a short distance in the moonlit night and in the light of torch. It appears that the attention of this witness was drawn towards his previous statement made before the police specially with regard to the fact that he had not stated before the police that he had 17 identified the accused persons of this case in the torchlight which also finds corroboration from the evidence of the Investigating Officer but I am of the view that it does not make his evidence unacceptable, as the visibility capacity of the persons having rural background are stronger than persons coming from urban background and they can easily identify known persons even from some distance in dim light or moonlit night. There are sufficient evidence on record that the night was moonlit night so even in absence of torch-light it can be believed that the witnesses were in the position to identify the accused persons in the moonlit night. Moreover, the presence of P.W.3 at the place of occurrence at the time of the alleged occurrence finds support from the evidence of other prosecution witnesses also. 19. The next witness on the point of occurrence is P.W.4 Radhe Shyam Singh. His evidence is that on the alleged date and time of occurrence he was also at his Khalihan which is situated towards north of Khalihan of Ramchandra Singh (deceased). He has further deposed that at about 11 P.M., while he was taking rest in his Khalihan after taking meal, he heard sound of foot-steps whereupon he flashed torch-light and saw some persons assaulting Ramchandra Singh with lathi and bhala. Amongst them he identified Sahdeo Mahto, Raghu Nandan Yadav, Ram Baran Mahto, Ramashray Mahto, Ram Sagar Mahto, Ramnandan Mahto, Jugal Mahto, Ramashish Mahto, Krishna, Ram Briksh Mahto besides one more person. Amongst them, Krishna 18 and Ram Briskh and one more person were armed with lathi and rest