CRIMINAL APPEAL No.195 (DB) OF 1989 ----- Against the judgment of conviction and order of sentence dated 25th of April, 1989 passed in Sessions Trial No. 218 of 1986/Trial No. 168 of 1986 by Shri Bhikhari Ram, Additional Sessions Judge XI, Patna. ***** 1. BIGAN MAHTO, SON OF NIRMAL MAHTO 2. UMESH MAHTO, SON OF RAM UDIT MAHTO 3. MEGHAN MAHTO, SON OF SHEO BAHAL MAHTO 4. BHUSHAN MAHTO, SON OF PUSKAL MAHTO 5. AMBIKA MAHTO, SON OF LAKHAN MAHTO 6. MANGAL MAHTO, SON OFCHANDRADIP MAHTO ALL RESIDENT OF VILLAGE BARKI KHADWA, P.S.-BIKRAM DULHIN BAZAR, DISTRICT-PATNA. ---------(Appellants) Versus THE STATE OF BIHAR ----------(Respondent) For the Appellants : Shri Kanhaiya Pd. Singh (Senior Advocate) Shri Ganesh Pd. Singh (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. An application under Section 394 (2) of the Code of Criminal Procedure, 1973 has been filed on behalf of the appellants for informing the Court about death of Appellant No. 1 Bigan Mahto. In support of death of Appellant No. 1 Bigan Mahto a certificate of Municipal authorities has been filed as Annexure-1 which mentions that Bigan Mahto son of Nirmal Mahto has died on 06.02.1992. Along with Annexure-1 a certificate regarding death of Appellant No. 1 granted from Mukhia namely 2 Ramnaresh Das of Sorampur Panchayat, District- Patna is also annexed. The affidavit has been sworn by Ram Bhawan Prasad, son of Late Nirmal Mahto who happens to be brother of the Appellant No. 1. The prayer of the appellant for abating of the appeal against Appellant No. 1 is not opposed by the learned Counsel for the State. Accordingly, the appeal against Appellant No. 1 abates. 2. Remaining appellants Umesh Mahto, Meghan Mahto, Bhushan Mahto, Ambika Mahto and Mangal Mahto were convicted by the learned Additional Sessions Judge XI, Patna on 25.04.1989 in Sessions Trial No. 218 of 1986/Trial No. 168 of 1986 whereby they were held guilty under Sections 302/149 and 147 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for two years each respectively. The sentences were ordered to run concurrently. 3. Madho Mahto (the deceased) has given his fardbeyan at the place of occurrence i.e. Village Baraki Khandwa at 9.00 a.m. on 10.05.1984 which was recorded by S.I. of S.D. 3 Pandey (P.W.8). In the fardbeyan Madho Mahto has alleged that while he was working in his field which was situated south of the house of one Ramudin Mahto in the morning then at about 8.00 a.m. the named accused persons namely Umesh Mahto with Lathi, Bigan Mahto with Khanti, Bhushan Mahto with Lathi, Ambika Mahto with Lathi, Meghan Mahto with spade and Mangal Mahto with Lathi came. The named accused persons surrounded the informant (deceased) Madho Mahto and they started assaulting him indiscriminately. The informant escaped towards School but there also he was surrounded and beaten by the named accused persons. While other accused persons were assaulting by means of Lathi, one Meghan Mahto assaulted the deceased from the blunt portion of spade. On account of assault Madho Mahto fell down on the earth. Blood came out and the accused persons after committing assault escaped. The occurrence was witnessed by the informant’s son Ajay Kumar (P.W.2) and Sarda Mahto (P.W.3). The motive of the occurrence was enmity with regard to a piece of land of Madho Mahto with Bhushan Mahto. After giving his fardbeyan the informant has put his Left 4 Thumb Impression (L.T.I.). Another L.T.I. is on behalf of wife of the informant namely Binda Devi. The witness of the fardbeyan is Swayamwar Pandit, local Sarpanch (not examined). The fardbeyan was recorded at Bikram Police Station and Bikram P.S. Case No. 158 of 1984 under Sections 147, 148, 149, 308, 324, 328 and 323 of the Indian Penal Code was registered. Subsequently, Madho Mahto died and Section 302 of the Indian Penal Code was added. The case was investigated into and chargesheet under Section 302/149 of the Indian Penal Code was submitted. Cognizance was taken and the case was committed to the court of Sessions where charges under Section 302/149 of the Indian Penal Code was framed against all the accused persons whereas charge under Section 147 of the Indian Penal Code was framed to Bhushan Mahto, Bigan Mahto, Ambika Mahto and Mangal Mahto and charge under Section 148 of the Indian Penal Code was framed against Umesh Mahto and Meghan Mahto. Charges were explained to the accused persons. All the accused persons pleaded innocence so the trial proceeded. 4. The trial court after relying upon 5 the evidence of solitary eye witness P.W.2 that the prosecution has been able to prove the charge under Sections 147, 302/149 of the Indian Penal Code, judgment of conviction and sentences was passed as stated above. 5. It has to be seen here that as to whether the prosecution has been able to prove the charges against the appellants or not. 6. In order to prove its case, the prosecution has examined eight witnesses namely Binda Devi (P.W.1), Ajay Kumar (P.W.2), Sarda Mahto (P.W.3), Surendra Kumar (P.W.4), Nandu Paswan (P.W.5), Raj Kumar Mahto (P.W.6), Sia Saran Ram (P.W.7) and Sankar Dayal Pandey officer-in-charge and investigating officer of the case is P.W.8. While P.W. 6 has been tendered for the prosecution. P.Ws. 3, 4, 5 and 7 were declared hostile because they have not supported the prosecution case. Two witnesses Binda Devi and Ajay Kumar have supported the prosecution version. Binda Devi was not relied upon by the trial court. 7. P.W. 1 Binda Devi has stated that while she was alone at her house, her son Anant Kumar (not examined) came and informed that his father has been assaulted. Then she 6 rushed towards her field but her husband was not there. She heard some cry and rushed towards the School where her husband was lying and he was being assaulted by Mangal Mahto, Meghan Mahto, Ambika Mahto, Bhushan Mahto, Bigan Mahto and Umesh Mahto. While Bigan Mahto was assaulting from the reverse portion of the Khanti and Meghan Mahto by reverse portion of the spade. Others were assaulting him by Lathi. The occurrence was witnessed by the informant’s son Ajay Kumar (P.W.2) and Sarda Mahto (P.W.3). Subsequently, Binda Devi (P.W.1) went to the police station and left her husband with her mother-in-law. When she went to the police station then the officer- in-charge came along with her and both arrived at the place where her husband was lying. Her husband narrated the occurrence to the officer-in-charge. Thereafter, her husband was taken to the police station and from there he was sent to hospital for treatment but in the way he succumbed to the injuries. 8. Learned Counsel for the appellants has pointed out that the version of P.W. 1 was that when she went to the police station and came along with the officer-in-charge, but it 7 has not been supported by the officer-in- charge who has been examined as P.W. 8. Therefore, the evidence of P.W.1 is not trustworthy. 9. P.W. 8 in his evidence has stated that on the date of occurrence he had been to investigate another case and while he was returning then in the way he got an information regarding the present occurrence and so he returned mid way to the place of occurrence and recorded the statement of the informant who later on died. Therefore, the evidence of P.W. 1 that she went to the police station and returned with the officer-in- charge has not been supported by the officer- in-charge. This is vital contradiction which affects the availability of this witness. 10. P.W. 2 Ajay Kumar was a child at the time of occurrence. At the time of evidence P.W. 2 was of 14 years so certain questions were put to this witness and the court after getting satisfied about his capacity to explain the matter, has recorded his evidence. He in his evidence has stated that his father was being assaulted, then he went to inform his mother and again returned 8 to the place of occurrence along with his mother. His father was having injuries and his father told that he has been assaulted by Umesh Mahto, Bigan Mahto, Bhushan Mahto, Meghan Mahto and Ambika Mahto. Thereafter, he went to the police station and returned with the officer-in-charge. This fact has not been supported by the investigating officer when he was examined as P.W. 8. Because he has stated that he went to the place of occurrence after getting information from someone regarding the occurrence and so there are two versions of the evidence as to how the officer-in-charge came to the place of occurrence. Further his evidence supports that he has initially seen the occurrence and when he returned with his mother then there was no assault but his mother who has been examined as P.W. 1 has stated that when she came to the place of occurrence, she has seen the assault. In cross-examination a question was put to this witness from the defence side as to whether he has stated to the police as to who was the person who has assaulted the victim, he has stated in affirmative. An attention about the statement under Section 161 of the Code of 9 Criminal Procedure of P.W. 2 was drawn to P.W. 8 and he in his evidence in para-13 has stated that P.W. 2 has not named all the six accused and has not described the roles played by the accused in commission of the assault. 11. Oral evidence has confined to only two witnesses and other witnesses have not supported the prosecution case and these two witnesses have contradicted themselves. 12. Another aspect of this case is that the doctor has not been examined. The definite case of the prosecution is that after Madho Mahto got injuries then he was taken to police station and from there to hospital. There is a inquest report on the record but there is no post-mortem report. This is a case in which charge against the appellants is for causing homicidal death to Madho Mahto. What to say about homicidal death, not even death has been proved by the prosecution. No order of conviction can be based on assumption. When the definite case of the prosecution is that the death was on account of use of violent force by the accused then the onus is upon the prosecution to prove that the violence was the cause of death of the person. Non-examination 10 of the doctor has definitely caused prejudice to the appellants because they could not get the benefit of cross-examination of the doctor. When the cause of death remains doubtful then it is always unsafe to rely upon the testimony of only oral witnesses. 13. Learned Counsel for the appellants relying upon some judgments reported in 2002 (2) PCCR 39 in the case of Kamla Kahar & 3 Ors. Vs. The State of Bihar, 2007 (1) BBCJ 368 in the case of Sallo Singh Vs. The State of Bihar and 2006 Cri. Law Journal 2526 in the case of Sowam Kisku & Ors. Vs. The State of Bihar (now Jharkhand) has submitted that in some of the cases it is mentioned that the post-mortem reports were on the record but the order of conviction was not upheld because of non-examination of the doctor. Because the onus was upon the prosecution to prove homicidal death which was not proved in the present case and the post- mortem report has not been exhibited. 14. Therefore, we are in agreement with the submission of the learned Counsel for the appellants that witnesses have been contradicted themselves. P.Ws. 1 and 2 have 11 given different versions about the manner of occurrence. The doctor has not been examined and cause of death has not come on record. 15. On the basis of the aforesaid discussions we find that the prosecution has not been able to prove the charges against the appellants. Hence, 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 24th of February, 2011 N.A.F.R. kksinha/- (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.)