CRIMINAL APPEAL No.294 (DB) OF 1989 ----- Against the judgment of conviction and order of sentence dated 23rd June, 1989 passed in Sessions Trial No. 245 of 1983 by Shri Kamala Prasad, 1st Additional Sessions Judge, Sitamarhi. 1. RAJENDRA MAHTO @ RAJ NANDAN MAHTO 2. MAHENDRA MAHTO 3. HARISCHANDRA MAHTO 4. SHYAM LAL MAHTO ALL THE FOUR ARE SONS OF LATE PURAN MAHTO, RESIDENT OF VILLAGE- SONMA, P.S.-BATHANAHA, DISTRICT-SITAMARHI. ----------(Appellants) Versus THE STATE OF BIHAR ---------(Respondent) For the Appellants : Mr. Baxi S.R.P. Sinha, Senior Advocate Mr. Barun Kumar Chaudhary, Advocate Mr. Manish Kumar, Advocate. For the Respondent : Ms. Shashi Bala Verma, APP. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA S.K. Sharma & Akhilesh Chandra, JJ. The appeal on behalf of four brothers namely Rajendra Mahto @ Raj Nandan Mahto, Mahendra Mahto, Harischandra Mahto and Shyam Lal Mahto all sons of late Puran Mahto is against the judgment of conviction and order of sentence dated 23rd June, 1989 passed by the Ist Additional Sessions Judge, Sitamarhi in Sessions Trial No. 245 of 1983 by which they were convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and further rigorous imprisonment for three years under 2 Section 201 of the Indian Penal Code. Both the sentences were directed to run concurrently. 2. The prosecution case was registered with regard to an occurrence of about 5 a.m. on 05.05.1983 at village Sonwa in the district of Sitamarhi. The information of the occurrence was given by Chhathu Mahto P.W. 16 to the police through his fardbeyan at about 4 p.m. in which he has stated that he was informed by his co-villager that his daughter Radha Devi married with the appellant Harischandra Mahto in the month of Jeth, 1981 was murdered and her dead body was cremated. On the basis of this information the informant along with Bishun Mahto, Shiv Shankar Mahto, Brahmdeo Mahto and Khaheru Mahto went to village Sonwa where he met with Mahendra Mahto – brother of his son- in-law who asked him about the death and cremation of Radha Devi. Then the informant and villagers went to burial place where his daughter was cremated. The body was not there and it was found to be fully burnt. It was alleged that the accused persons have burnt her to death. The information was received that murder was committed by Mahendra Mahto, Rajendra Mahto, Ram Lal Mahto, Harishchandra 3 Mahto and Puran Mahto (now dead) in the early morning at about 5 p.m. and the cremation was done at about noon. The cremation was kept concealed. Further allegation in the fardbeyan was that Radha Devi after marriage had been to the house of her husband. From there she returned after about 10 days and her second marriage (Roksadi) was performed after seven months. She stayed there and again she came to her parents’ house in the month of preceding Falgun. She left her parents’ house to her husband’s house at village Chakwa on 28.04.1983. The informant claimed that his daughter was beautiful and was of fair complexion. The motive of the occurrence was that on the eve of Roksadi a cycle was demanded by son-in-law of the informant. Due to financial problems, the informant could not satisfy the demands and this was the reason of annoyance of his son-in-law. It was suspected that on account of this fact, the murder was committed. Village Chakwa is only at a distance of 1 K.M. from village Sonwa but no information of death was given to the informant and the body was cremated and this goes to show that there was motive. The female members of the 4 village Sonwa were talking that daughter-in-law of Puran Mahto was killed by all the accused persons. The fardbeyan resulted in Bathnaha P.S. Case No. 41 dated 05.05.1983 under Sections 302, 302/34 and 201 of the Indian Penal Code. The investigation was taken up and after investigation charge sheet was submitted against five accused persons namely these appellants and Puran Mahto (now dead). Cognizance was taken and the case was committed to the court of Sessions where charges for offence under Section 302/201 were framed against the accused persons. Charge under Section 302/201 was framed against Harischandra Mahto whereas charge under Section 302/34 of the Indian Penal Code and under Section 201 of the Indian Penal Code were framed against Rajendra Mahto, Mahendra Mahto, Shyam Lal Mahto and Puran Mahto. Puran Mahto died during pendency of the trial. So, the trial proceeded only against his four sons who are appellants here. All the accused persons have pleaded innocence, so the trial proceeded. 3. Defence of the accused persons was that it was a death on account of ailment for which proper treatment was given to the 5 informant’s daughter. Unfortunately, after her death the informant demanded ornaments of his daughter and when that was not given then the case was lodged. Demand of cycle was also denied and it was said that Radha Devi was a beautiful lady and no one had any grievance from her. She was being liked by all. She had good relation with her entire family and she had no complain at all against any of the accused or any person in the Universe. 4. In order to prove its case, the prosecution has examined altogether 19 witnesses. They are P.W. 1 Jitu Mahto, P.W. 2 Mahesi Ram, P.W. 3 Ram Bhagat Ram, P.W. 4 Ram Chandra Mahto, P.W. 5 Shiv Nandan Mahto, P.W. 6 Gafoor Ansari, P.W. 7 Bishun Mahto, P.W. 8 Yogi Mahto, P.W. 9 Brahmdeo Mahto, P.W. 10 Vijay Mahto @ Brijlal Mahto, P.W. 11 Khaheru Mahto, P.W. 12 Nathuni Singh, P.W. 13 Ram Bharos Mahto, P.W. 14 Ram Kishore Singh, P.W. 15 Haribans Mahto, P.W. 16 Chhatu Mahto, P.W. 17 Shiv Shanker Mahto, P.W. 18 Wasi Ahmed, A.S.I. and P.W. 19 Nandan Shukla, retired A.S.I. Signature of Nathuni Singh on the seizure list is Ext.1, the First Information Report Ext.2, signature of Shiv Shankar Mahto and Brahmdeo 6 Mahto on seizure list is Ext.1/1, two seizure list is Ext.3 and Ext.3/1 and signature of Ram Bhagat Mahto on the First Information Report is Ext.4. 5. The defence in order to prove its case has examined Nathuni Mahto as D.W. 1, Faguni Mahto D.W. 2 and Dr. Uma Kant Jha medical officer as D.W. 3. 6. The trial court after considering the evidence, circumstances, facts and arguments of the parties came to the conclusion that the prosecution has been able to prove the charges against all the appellants beyond shadow of all reasonable doubts and hence, order of conviction and sentence was passed. 7. Here it has to be seen that whether the prosecution has been able to prove the charges against the appellants beyond all shadow of reasonable doubt or not. 8. P.Ws. 1, 2, 3, 4, 6, 12, 13, 15 and to great extent P.Ws. 7 and 8 have been declared hostile and they have not supported any allegation against any of the accused. P.W. 5 has been tendered by the prosecution. P.W. 10 is a chance witness and he has stated that for the first time he was giving the details of the 7 occurrence in the court meaning thereby he has given no statement before police. 9. Nobody has seen the occurrence. The case is based upon the circumstantial evidence. The first circumstance which has been alleged by the prosecution was that a cycle was demanded by the accused Harischandra Mahto from the informant at the time of Roksadi but that was not fulfilled. This led to annoyance. The second circumstance was that the dead body was cremated hurriedly without informing the villagers and the family members of the informant. The third circumstance was that the cremation was at Bansbari of the accused and not at the earmarked burning place. The fourth circumstance was that Sugar and Kerosene Oil were used for speedy disposal of the dead body of Radha Devi and smell of Kerosene Oil and Sugar were coming out from the funeral ground and some sugar particles were found near the place where the cremation was effected. 10. P.W. 16 is the informant and father of Radha Devi (the deceased). P.W. 19 is Sub-Inspector of Police and is investigating officer of the case. 11. Most of the witnesses have turned 8 hostile, so sketchy evidence has remained on the record. The facts which have come in evidence is that Radha Devi was a lovely lady and nobody had any grievance against her. Regarding demand of cycle, there is no evidence of any witness that any demand was made prior to the marriage or it was a condition for the marriage. About the demand it has been stated that it has come for the first time after two years of the marriage. Radha Devi had been to her parents’ house for the third time, this fact has been stated by P.W. 16. If the evidence of P.W. 16 is seen then it is apparent that nobody was present when such demand was made. Not only the informant but P.W. 7, who is nephew of the informant and P.W. 8 Yogi Mahto a close relative of the informant denied that any demand was made by the accused Harishchandra Mahto and they have remained present throughout when Harishchandra Mahto was at the house of his in-laws. P.W. 9 Brahmdeo Mahto has supported the fact of demand of cycle but when his attention was drawn as to whether he disclosed before the investigating officer or not, he has stated that regarding demand he has stated for the first time before the court. 9 Thereafter, the evidence of demand has not been supported by P.W. 9. Not only that, the informant himself has denied that anybody was present when the demand of cycle was made. The first circumstance regarding demand of cycle has not been proved by the prosecution. Regarding second circumstance that no villagers participated in the cremation of Radha Devi, it has come in evidence that neither informant nor any of his villagers were present at the time of cremation. D.W. 1 Nathuni Mahto and D.W. 2 Faguni Mahto has stated that in the cremation a large number of villagers were participated. According to the allegation the death was at 5 a.m. and the dead body was taken for cremation at about noon. The third circumstance was that the cremation was hurriedly done has no leg to stand because the delay of seven hours between the death and cremation is not such delay and it is wrong to say that the body was hurriedly disposed of. There is allegation that cremation was in Baansbari of the accused and not at the customary burial place. There is no evidence at all from which any inferences can be drawn regarding existence of a burial place in the village for common use. P.W. 14 who happens to 10 be Chowkidar in para-3 has stated that the dead body of other family members of the accused was also cremated in the same Baansbari where cremation of Radha Devi was effected upon. Therefore, evidence of P.W. 4 supports the defence version that the cremation was in the customary manner and at the customary place. There is no other version on the record that the cremation was not at the scheduled place. Another circumstance relied upon by the prosecution is of presence of Kerosene Oil and Sugar. The First Information Report has been given after about 12 hours of the occurrence. There is no mention in the fardbeyan about the existence of Sugar and Kerosene Oil at the relevant time so, it appears that this circumstance has also not been established. The statements of the witnesses on this point are also not consistent. P.W. 7, who is nephew of the informant, for the first time said in court that he has detected the smell of Kerosene Oil from the burial ground when he along with the informant and others went there and by that time the entire body was already burnt. 12. On the record there is seizure list which shows no presence of Sugar particles 11 or Kerosene Oil. The seizure list was prepared by the investigating officer but non- examination of the investigating officer has left a vital gap in the case. There is no evidence that the articles seized from the burial ground was sent to the Forensic Science Laboratory so it is difficult to presume on the basis of allegation that Kerosene Oil were found at the place of occurrence. 13. P.W. 1 in para-2 has stated that Puran Mahto has gone to inform Chathu Mahto and this fact has been supported by P.W. 2 also who has stated that he has given information regarding this unfortunate occurrence to Chathu Mahto. 14. In a case of circumstantial evidence, the prosecution has the duty to prove its case and evidence should be such which can lead to only inference that the death was in the manner as alleged. There should be no second route from where any other inference can be drawn. In the present case, though the prosecution has enumerated five circumstances, it has failed to establish even one circumstance, what to say of the five circumstances. It is clear that the prosecution 12 has not at all established its case. Not only this the statement under Section 313 of the Code of Criminal Procedure was recorded and a general question was put that Radha Devi was killed and her dead body was disposed of. It is well settled that if the prosecution wants to rely upon a particular evidence then that evidence must be put to the accused and if that evidence is not explained to the accused then a grave prejudice is caused to him. Section 313 of the Code of Criminal Procedure is the power granted to the court to examine the accused and it mentions as such: “it has been well settled by now that no circumstance which has not been explained to the accused must be used against any of the accused”, in the present case, not even one circumstance has been explained to the accused. This is a vital lacuna. Not only that, there is no evidence in the case. The circumstances relied upon have not been proved against the accused and it is apparent from the above mentioned discussions that the prosecution has failed at all to prove any of the charges against any of the accused. Thus the judgment of conviction and sentence has no leg to stand. 13 15. In the result, the judgment of conviction and order of sentence is set aside and the appeal is allowed. The appellants are acquitted and are discharged from the liabilities of their respective bail bonds. Patna High Court, Patna Dated the 4th of March, 2011 N.A.F.R. kksinha/- (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.)