CRIMINAL APPEAL No.693 OF 2004 Appeal against the judgment and order dated 2.9.2004 & 4.9.2004 respectively passed in Sessions Trial No. 28 of 2001/331 of 1995 by Additional Sessions Judge, Fast Track Court No. II, Gaya. -------------- 1. BENGI MAHTO, SON OF LATE CHANDAR MAHTO 2. TOTA MAHTO, SON OF LATE CHAMAN @ CHAMARU MAHTO 3. BAKHORI MAHTO, SON OF NAGA MAHTO 4. SITA RAM MAHTO, SON OF NAGA MAHTO 5. MAHESH MAHTO, SON OF KALI MAHTO 6. USHA DEVI, WIFE OF ARJUN MAHTO 7. SUMANTI DEVI, WIFE OF MAHESH MAHTO 8. MEENA DEVI, DAUGHTER OF TOTA MAHTO 9. SUNAIYANA DEVI, DAUGHTER OF BENGI MAHTO ALL RESIDENT OF VILLAGE – KORAP, P.S. KONCH, DISTRICT – GAYA. ………….. APPELLANTS. Versus THE STATE OF BIHAR ………….. RESPONDENT. For the Appellants : - Mr. Anil Kumar Saxena, Advocate Miss Jahan Ara, Amicus Curiae For the Respondent : - Mr. Ashwini Kumar Sinha, APP 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. Mr. Anil Kumar Saxena, Advocate submits that he will represent only Appellant No. 1 Bengi Mahto, as such Miss Jahan Ara is appointed as Amicus Curiae to represent other appellants. 2. All nine appellants have preferred this appeal against the judgment and order dated 2.9.2004 & 4.9.2004 - 2 - respectively passed in Sessions Trial No. 28 of 2001/331 of 1995 by Additional Sessions Judge, Fast Track Court No. II, Gaya. Appellant No. 1 has been convicted for offence under Section 302 of the IPC and sentenced R.I. for life and a fine of Rs.10,000/- payable to the wife of the deceased Kailash Mishra as compensation and in default of payment of fine S.I. for six months. Other appellants have been convicted for offence under Sections 452 & 323/149 of the IPC. They have been sentenced R.I. for two years for offence under Section 452 of the IPC and S.I. for six months for offence under Section 323 read with section 149 of the IPC. 3. Tilak Devi wife of deceased Kailash Mishra recorded her fard-beyan 7.2.1994 at 1.15 p.m. at Surgical Ward, Pilgrim Hospital, Gaya regarding the occurrence which took place on 6.2.1994. Her fard-beyan disclosed that son of informant had plucked some peas from the field of Arjun Mahto, due to that some altercation took place in between the informant and female members of the family of Arjun Mahto. Female members thereafter left but, later on, again male members and female members - 3 - came and entered into the house of informant with lathi and danda and assaulted the informant and caused injury. They also assaulted her son and daughter. In the meantime, her husband returned from Rafiganj and asked appellant Bengi Mahto the reason for committing such occurrence. Bengi Mahto assaulted the husband of informant with danda on his temple as a result of which he became unconscious. Other accused persons were also assaulted with lathi. The injured was taken to hospital and subsequently referred to Ranchi Hospital for better treatment where he died after 14 days of the occurrence. Initially the FIR was instituted for offence under Sections 147, 149, 323, 337 & 452 of the IPC but subsequent to the death of Kailash Mishra, Section 302 was also added. After investigation charge sheet was submitted and the case was committed to the court of Sessions for trial. 4. Four witnesses were examined by the prosecution to prove the charges framed against the accused persons. They are P.W. 1 Tilak Devi, wife of the deceased and informant of the case, P.W. 2 Manju Devi, daughter of the deceased and the informant, P.W. 3 - 4 - Chandotari Devi, one of the family members of the deceased and informant and P.W. 4 Ramchandra Mishra, cousin of the deceased. 5. Counsel for the appellants contended that only due to long standing enmity in between the informant and accused persons, even minor children, married daughters and female members of appellants Sitaram, Arjun, Tota, Bakhori and Maheshi have been falsely implicated in this case. P.W. 1 had admitted her enmity with the appellants, and land dispute relating to irrigation and possession of land. Counsel for the appellants submits that considering admission of enmity and the way each and every person in the family have been made accused, conviction of appellants placing reliance on the solitary evidence of P.W. 1 is not safe and sustainable. 6. Counsel for the appellants has further submitted that even evidence of P.W. 1 indicates that the assault made by all the accused persons was general in nature. Simply in one line at para 1 she disclosed that Bengi Mahto assaulted with danda on the temple of her husband due to which he died in hospital in course of - 5 - treatment. This statement of P.W. 1 regarding assault by Bengi Mahto has not been supported by P.W. 2, P.W. 3 and P.W. 4 and attention of P.W. 1 was also drawn that she had not made such statement before the police which she denied. 7. Counsel for the appellants further submits that P.W. 1 herself has admitted in her evidence that on the date of occurrence she did not go to police station to give information, but her brother-in-law had gone to police station and on his return he informed that officer-in-charge has been given information regarding the occurrence. First information given by the brother-in-law has not been brought before the court. Fard-beyan of informant was recorded one day after the occurrence and on the basis of such fard-beyan, FIR was instituted after two days. Besides the delay in institution of F.I.R., the I.O. of the case has not been examined. The doctor has also not come to depose to certify the cause of death and to corroborate the evidence of P.W. 1 that her husband died because of the injury caused by assault on his temple by Bengi Mahto. The cause of death not being proved. Trial Court - 6 - erroneously convicted Bengi Mahto under Section 302 of the IPC. 8. We find that the trial has been conducted by the prosecution in the most casual and reluctant manner. The two witnesses, whose deposition was essential for proving the cause of death and the manner of occurrence, were not produced by the prosecution. In case the Investigating Officer would have been examined he could have disclosed whether the statement made by the prosecution witnesses in court was actually disclosed immediately after the occurrence, so that the trustworthiness of these witnesses could have been examined. Since prosecution failed to bring relevant evidence before the trial court, an adverse inference is drawn against the prosecution that it failed to prove its’ case beyond reasonable doubt. 9. While considering the manner in which trial was conducted, an error committed by the trial court was noticed, which relates to non-providing of an opportunity to accused Bengi Mahto to explain the facts and circumstances appearing against him in the trial court - 7 - evidence, while recording his statement under Section 313 Cr.P.C. The court failed to put this question to the accused that he assaulted Kailash Mishra on his temple by danda, due to which he died. The question was that he assaulted Kailash Mishra having common intention with other accused, which resulted into his death. The object behind examination of an accused under Section 313 Cr.P.C. is to enable him to explain any circumstance appearing against him in the evidence. This not being done, the accused is prejudiced. The court could not have absolved itself of its duty by putting general question. On account of this illegality also, conviction of Bengi Mahto under Section 302 IPC is not sustainable. 10. The trial court has convicted Bengi Mahto for offence under Section 302 of the IPC on the same set of evidence, which has been disbelieved in case of other accused persons. This is also one of the reason for which we feel inclined to set it aside. 11. Accordingly, this appeal is allowed. Except appellant Bengi Mahto all other appellants are on bail, as such they are discharged from the liabilities of their - 8 - respective bail bonds. Appellant Bengi Mahto is in custody. He is directed to be released forthwith, if not wanted in any other case. 12. Considering the able assistance advance to the Court by Miss Jahan Ara, Amicus Curiae, she is entitled for one hearing fee and that will be paid by the Patna High Court Legal Services Committee. Patna High Court, Dated 05th August, 2010, N.A.F.R./DKS (Mridula Mishra, J.) (Dharnidhar Jha, J.)