CRIMINAL APPEAL No.156 of 1988 WITH CRIMINAL APPEAL NO.98 of 1998 Against the judgment of conviction and order of sentence dated 11th February, 1988 passed by 6th Additional Sessions Judge, Munger in Sessions Case No.324/83. Cr.Appeal No.156 of 1988 RIT LAL MAHTO------------------------Appellant Versus STATE OF BIHAR----------------------Respondent CR. APP (DB) No.98 of 1988 1. BHOLA MAHTO 2. PARMESHWAR MAHTO 3. LUKHAR MAHTO & 4. JHUPAR MAHTO--------------------------Appellants Versus STATE OF BIHAR------------------------Respondent ------ For the appellants:-Sri Farooque Ahmad Khan Sri Indu Bhushan Prasad,Advocates (in Cr.Appeal No.98 of 1988) For the appellant:- Sri Rakesh Kumar Sinha No.1 Sri Anuj Prakash,Advocates (in Cr.Appeal No.156 of 1988) For the State:- Sushri Shashi Bala Verma,A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ. Six accused persons were put on trial by the learned 6th Additional Sessions Judge, Munger in Sessions Trial No.324 of 1983. They had been charged together under Sections 302 and 149 of the IPC except acquitted accused Dwarika Mahto who was charged under Section 302 read with 120B of the Penal Code. The appellant Rit Lal Mahto was also - 2 - separately charged under Section 302 of the Penal Code. The learned trial Judge while delivering the judgement on the 11th of February,1988 acquitted accused Dwarika Mahto of the charges framed against him and found the five appellants of the two appeals guilty. Appellant Rit Lal Mahto was found guilty of committing offence under Section 302 of the Penal Code and was directed to suffer rigorous imprisonment for life. The two appellants Bhola Mahto and Parmeshwar Mahto-appeal of Jhupar Mahto and Lukhar Mahto having abated-were convicted of offence under Sections 302 and 149 of the Penal Code and each of them was directed to suffer rigorous imprisonment for life. The two appeals were preferred by them for challenging the conviction and sentences inflicted upon each of them. 2. We have heard the two appeals together and we are disposing of them by this common judgement. 3. P.W.8 Most. Paitri Devi, who happened to be the wife of the deceased Lakhan Mahto, gave her fardbeyan to the officer-in-charge of Chakai police station stating that she and her husband were sleeping outside their house by the side of the wall on two separate cots. The wife of the younger - 3 - brother of the deceased, namely, Kaili Devi(P.W.2)was also sleeping with her child just near by. When it was about mid-night and when the moon had come out, she woke up on picking up the sound of arrival of some persons and found the eight accused persons named in the FIR there who were armed with lathi, farsa and tangi. They all came near the deceased who was sleeping. P.W.8 stated that accused Jhupar Mahto and Lukhar Mahto(died during the pendency of the trial) were armed with farsa, whereas appellant Rit Lal Mahto had a tangi in his hand. Other accused persons were armed with lathi. 4. P.W.8 specifically alleged that appellant Rit Lal Mahto gave a blow with tangi on the left temporal region of the deceased while he was sleeping on the cot as a result of which he wreathed in pain and died instantaneously. Other accused persons, thereafter, started dragging out the dead body of her husband. The informant raised a cry imploring the people of village to come as the accused persons were attempting to take away the dead body of her husband. The cries of P.W.8 attracted Sukho Mahto(P.W.8), Sarju Mahto(P.W.1), Kaili Devi(P.W.2), Mahadeo Mahto(P.W.5) and others - 4 - upon which the accused persons fled away leaving the dead body of her husband. The informant claimed that the witnesses had seen the occurrence and had identified the accused persons. 5. As regards the motive for commission of the offence it was stated by P.W.8 that about four days prior to the date of occurrence there had been some quarrel between the deceased and accused Dwarika Mahto and during that course Dwarika Mahto had given out that he will behead the deceased and it was why the husband of P.W.8 had been murdered. 6. The investigating officer of the case has not been examined. As such, we do not know as to how the investigation proceeded, but this much appears clear that on the basis of Ext-2, the fardbeyan of P.W.8, FIR of the case, Ext-4 was drawn up and inquest report was also prepared, after holding inquest on the dead body of the deceased. P.W.9 Dr. Narendra Mohan Sharma appears holding postmortem examination on the dead body and preparing the report in that behalf which was marked Ext-3 during trial. The witnesses who have been examined must have been cited as a chargesheet witnesses and might have been questioned by the investigating officer before closure of investigation. From these - 5 - documents, we could gather that materials had been found sufficient for putting the accused persons up on trial. 7. The defence of appellants was of false implication on account of the dispute for land in between accused Dwarika Mahto, who was the father of appellant Rit Lal Mahto and who was acquitted by the learned trial Judge. The other appellants of Cr.Appeal no.98 of 1988 pleaded false implication for reasons best known to the informant. 8. The prosecution examined a total number of ten witnesses in support of the charges, out of whom P.W.5 Mahadeo Mahto was declared hostile though the witness appears stating one important fact in his examination-in-chief that when he reached at the scene of occurrence, the wife of Lakhan Mahto, i.e., P.W.8 stated to him that appellant Rit Lal Mahto, Jhupar Mahto(since dead)and 2-4 other persons had murdered her husband Lakhan Mahto by a tangi. P.W.7 Angrej Mahto was tendered for cross-examination. P.W.10 Suresh Prasad was a witness of formal nature who proved the writings of a particular police officer appearing on the FIR and this is how that document was marked Ext-4. Other witnesses who also fall in the same category of formal character was - 6 - P.W.6 Bhuneshwar Mahto who had signed the fardbeyan as a witness to it besides signing the inquest report too. 9. Out of remaining witnesses, except P.W.8 Paitri Devi, none of the witnesses, like, P.W.1 Sarju Mahto, P.W.2 Kaili Devi and P.W.4 Sukho Mahto were witnesses to the real part of the occurrence and they stated that when they reached the scene of occurrence, they found appellant Rit Lal Mahto and accused Jhupar Mahto(since dead) dragging the dead body in an attempt to take it away. P.W.5 as just pointed out did not state the above facts though stated that P.W.8 had stated to him that it was Rit Lal Mahto and others who had killed her husband. The other witnesses like P.Ws.1, 2 and 4 have stated that when they reached they also learnt from P.W.8 that it was appellant Rit Lal Mahto who had killed her husband with a Kulhari. 10. While criticizing the judgments of the learned lower court, it was contended by the learned counsel appearing for appellants Bhola Mahto and Parmeshwar Mahto that except P.W.8 none of the witnesses like P.Ws 1, 2, 4 or 5 has stated that he had seen any of the two appellants even dragging away the dead body. It was contended that only P.W.8 - 7 - stated that the accused persons started dragging away the dead body so as to taking it away but her evidence in paragraph 1 at page 28 of the paper book is also not specific as she does not name any particular accused in that connection and simply implicated the accused persons generally. It was, contended as such, that the two appellants, namely, Bhola Mahto and Parmeshwar Mahto deserved to be acquitted on account of not being named by any of the witnesses as persons who had attempted to take away the dead body by dragging it. 11. As regards Rit Lal Mahto, the learned counsel appearing on his behalf contended that his implication is by the evidence of solitary witness P.W.8 and when the court considered her evidence in paragraph 5 at page 29 of the paper book, what it could find is that she woke up after hearing the cries of her husband and, as such, she may not be an eye witness to the assault part of occurrence. It was further contended that the other witnesses did not implicate the appellant Rit Lal Mahto by stating that any of them had seen him giving the decisive blow so as to killing the deceased Lakhan Mahto. It was, lastly, contended that it was a case of solitary blow and it may not be a case under Section - 8 - 302 of the Penal Code and the facts may attract the offence under Section 304 part II IPC. 12. Sushri Shashi Bala Verma, the learned Additional Public Prosecutor, has contested the contentions as regards the proof of charge against appellant Rit Lal Mahto by submitting that the FIR recites that the blow was given with full force. P.W.8 supports her allegation contained in Ext-2 by stating in her examination-in-chief as also in her cross-examination that it was only appellant Rit Lal Mahto who had assaulted her husband by a tangi and the doctor who held the postmortem examination found the corresponding injury which was the cause of death. It was contended that the appellant Rit Lal Mahto had the intention to kill the deceased and that could be gathered from many circumstances attending upon the facts of the case. Sushri Verma submitted that it could never be a case under Section 304 part II Penal Code and it could be out and out an offence under Section 302 IPC. 13. The case of the prosecution is confined to the solitary eye witness P.W.8 Paitri Devi who at the relevant time was the wife of the deceased. She appears having married another man after her husband was killed by the accused persons, as per her - 9 - allegation. The fact that she married another man is stated by P.W.2 Kaili Devi also who happens to be the wife of the younger brother of the deceased Lakhan Mahto and who could very well be supposed to know the subsequent events which could have occurred after murder of Lakhan Mahto. We are not concerned much about that evidence of P.W.8. What we find after considering the evidence of P.W.8 is that she personally did not have any reason to falsely implicate any person in a charge of murdering her husband. Nothing was brought on the record of the case by cross-examining P.W.8 or any of the ten witnesses to indicate that P.W.8 could be deeply motivated or interested in seeing that the charge framed against appellant Rit Lal Mahto or against any of the accused persons be proved by her evidence on account of any particular reason. The fairness of the witness could be gathered from one line of her evidence in paragraph 6, which is the cross-examination part of the evidence of P.W.8, when she stated that her husband was assaulted only by Rit Lal Mahto and by none of the other accused. She further stated that the other accused persons were simply standing near the place of occurrence. This single line of evidence of P.W.8 brings the - 10 - quality of the witness to such a standard as not be said to be tainted by any particular reason. No witness could be as fair as we find P.W.8 to be. For this reason, we place our implicit faith on the evidence of P.W.8. 14. It is true that P.W.8 has stated that all accused persons came together and some of them were armed with some weapons also, but when we read the evidence of P.W.8 in her examination-in-chief in paragraph-1, what we find is that she had generalized the allegation by giving a general type of evidence that after Rit Lal Mahto had given a blow with tangi so as to cutting and killing Lakhan Mahto, the accused persons started dragging away the dead body. She had not specified any particular accused who was catching hold of the deceased so as to dragging him away. This part of the story appears narrated by other witnesses like P.Ws.1, 2 and 4 each of whom has stated that when he or she reached at the scene of occurrence after picking up the cries of the lady, they found two accused, namely, Rit Lal Mahto and accused Jhupar Mahto(since dead) dragging the dead body so as to taking it away. None of them stated that they had seen any other accused persons except the above two even standing or moving - 11 - along with the above two on or about the scene of occurrence. What they have further stated is that they heard P.W.8 stating that it was appellant Rit Lal Mahto who had killed the deceased with a tangi. Thus, we find that the complicity of the two appellants, namely, Bhola Mahto and Parmeshwar Mahto in dragging away the dead body of Lakhan Mahto after he had been killed, appears not properly and satisfactorily established. 15. Besides the evidence of P.W.8 Paitri Devi, witnesses like P.Ws.1, 2, 4 and even 5-who was declared hostile-have stated that P.W.8 was stating that it was appellant Rit Lal Mahto who had killed her husband with a weapon like tangi. We have consulted the provisions of Section 6 of the Evidence Act which makes the evidence of hearsay admissible under a particular exceptional circumstance as is stated to by that particular provision of Evidence Act. That provision reads as under:- Relevancy of facts forming part of same transaction.-Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. For the purposes of the present discussion - 12 - we also want to refer to illustrations A appended to Section 6 which reads as under:- A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. 16. On a composite reading of the main provisions of Section 6 read with illustrations A of the Evidence Act what may transpire is that any word which was spoken by either the deceased or any one who could be present at the place of occurrence when the occurrence was being committed may be a relevant fact. We could admit the evidence of P.Ws.1, 2, 4 and 5 under Section 6 of the Evidence Act when they stated that P.W.8 was giving out that it was appellant Rit Lal Mahto who had killed her husband with a tangi/Kulhari. The evidence of the other witnesses lends corroboration to evidence of P.W.8 and we find that the complicity of Rit Lal Mahto was established beyond doubt. 17. This brings us to consider as to what offence could be constituted under the facts of the case. The allegation is that Rit Lal Mahto dealt a forceful blow with tangi on the left temporal region of the deceased. This statement appears in the FIR but we are not concerned much about that as we have - 13 - the evidence of P.W.8 before us and she has stated that the appellant Rit Lal Mahto dealt a tangi blow on a temple of her husband and killed her. P.W.9 Dr. Narendra Mohan Sharma who held the postmortem examination on the dead body of Lakhan Mahto found an incised wound on the left side of the face in front of left ear. It was above and down- words measuring 4 ½”x1”x bone, cutting left parietal, temporal and upper part of mandible. We also find after perusing the original document which was marked Ext-3 that the meninges of the brain had also been damaged on account of the above blow and the above injury was the cause of death which was caused by heavy sharp cutting weapon like an axe. The evidence of doctor could, thus, give a clear picture as to how heavy was the blow which was wielded by appellant Rit Lal Mahto. While deciding to give the blow, the appellant appears chosing one of the most vital parts of the human body. Not only that, for committing the offence the appellant has also chosen the most unearthly hour of the day, i.e., the mid- might when few souls could be awoke. This may give an inkling as to the intent and knowledge of the man who was wielding the blow. He did not want any one to be a witness of the occurrence. He wanted his - 14 - blow to be so decisive, as not to leave any chance for the deceased to survive 18. Considering these circumstances together, we could not reach any other conclusion than that the appellant was moving with a clear intention that he had to kill the deceased Lakhan Mahto. The evidence of P.W.8 indicates that after the blow had been given by the appellant Rit Lal Mahto, the deceased died instantaneously on the spot. 19. Considering these aspects of the matter, we are of the view that it could not be any other offence than the offence of murder and the contention of the learned counsel for the appellants that the case could be one under Section 304 part II of the IPC appears to us not acceptable. 20. After having discussed the evidence available to us on the record of the case, we find that the appeal of appellant Bhola Mahto and Parmeshwar Mahto has to be allowed on account of extending the benefit of doubt to the above named two appellants. As regards appellant Rit Lal Mahto his conviction under Section 302 of the Penal Code appears properly recorded and we, accordingly, dismiss his appeal, i.e., Cr.Appeal no.156 of 1988. - 15 - 21. Cr.Appeal No.98 of 1988 is allowed in the light of the above findings. Appellant Rit Lal Mahto is on bail on account of being granted the privilege by order dated 3.5.1989 passed in Cr.Appeal No.156 of 1988. His bail bonds are cancelled. He shall surrender to serve out his sentence. As regards appellants Bhola Mahto and Parmeshwar Mahto, they shall stand discharged from the liabilities of their respective bail bonds on account of being acquitted. Patna High Court, Dated, the 29th of March,2010, Brajesh Kumar/NAFR ( Dharnidhar Jha, J. ) ( Akhilesh Chandra,J. )