IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.117 of 1989 Against the judgment of conviction and order of sentence dated 3rd of March, 1989 passed by the Sessions Judge, Begusarai, in Sessions Case No.216 of 1986. ========================================================== Chandra Shekhar Mahto, son of Prabhu Mahto, resident of Village-Nonepur, P.S. Teghra, District-Begusarai……………………………………………..Appellant. Versus The State of Bihar……………………………………………………..Respondent. ========================================================== Appearance : For the Appellant : Mr. Subodh Kumar, Advocate. For the Respondent/s : Mr. Shiwesh Chandra Mishra, A.P.P. ========================================================== = CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ------- ORAL JUDGMENT ------- S.K. Sharma & R.K. Mishra, JJ. The appellant Chandra Shekhar Matho has been convicted under Section 302 of the Indian Penal Code and has been sentenced to under go rigorous imprisonment for life by judgment dated 3.3.1989 passed in Sessions Trial No 216 of 1986 by the Learned Sessions Judge Begusarai. This appeal is against that judgment and order. 2. The prosecution case is that at about 8.00 P.M. on 31.8.1979 when the deceased Rajendra Sahni was returning to his house from Pakthouli Chowk, six persons were also with him. The further prosecution case is that when he reached near a Mahua tree on bandh, 2 three persons, namely, Sita Ram Mathon (now dead), Chandra Shekhar Matho ( appellant) and Sarbeshwar paswan ( absconder) came up. Thereafter, Sita Ram Matho and the appellant Chandra Shekhar Matho pumped out the bullets in the body of the deceased causing his instantaneous death. The accused, Sarbeshwar Paswan was armed with lathi but he did not commit any overt act. The persons accompanying the deceased raised alarm on which the persons of nearby villages came whereupon the accused persons reiterated. In the night vigil was kept on the dead body. In the next morning at 6.00 A.M. the informant, Company Sahni, P.W.5 went to the concerned Police Station and gave his statement (Ext.1) and, accordingly, a case was registered under Sections 302/34 of the Indian Penal Code which resulted in Teghra P.S. Case No1(7) 1989. The S.I., Ram Baboo, P.W.6, came at the place of occurrence and prepared inquest report (Ext.4). He seized the blood stained earth and prepared the seizure list (Ext.3). The dead body of the deceased was sent to the Sadar Hospital for post-mortem examination which was done (Ext.2). Thereafter the case was investigated by the police and after investigation finding the case to be true submitted chargesheet. The cognizance of the offence was taken and thereafter the case was committed to the court of sessions for trial. 3. The defence of the appellant was that the deceased himself was notorious criminal of the locality and he was involved in several cases under Sections 395 and 396 of the Indian Penal Code and the deceased was murdered in a different manner by the persons with whom he had grudged and animosity and the appellant has been falsely implicated in this case. In support of his claim, the defence has brought 3 on record a copy of the different chargesheet and a copy of the different F.I.R. which was exhibited as Exhibits A and B. 4. The prosecution in order to prove its case has examined six witnesses. P.W.1, Shankar Prasad, is a constable and is a formal witness and has proved the writing of the formal F.I.R. P.W. 2 Jageshwar Sahani and P.W. 3 Baso Sahani, were examined as eye witnesses to the occurrence. The informant, Company Sahni was examined as P.W 5. P.W.4, Gulam Saiful Haque is a doctor, who has conducted the post-mortem examination of the deceased. P.W.6, Ram Baboo, is the investigating officer of this case. 5. Before proceeding further, it would be appropriate to discuss the evidence of the doctor who has conducted the post mortem examination of the deceased on 1.9.1989 at 3pm. The doctor has found the following injuries on the dead body of the deceased: ( I ) Punctured wound 1”x1/2”x penetrating deep into the body situated at right side of back in the middle ( II) Multiple irregular lacerated wound with inverted margin collecting together of the size of about 1 ½ ”x 1 ½”x penetrating into the chest wall situated on the left side of chest 2” lateral to the left nipple.. There was fractured of 4th & 5th ribs laceration of right Lung. ( III) Lacerated wound with inverted margin on 1 ¼” X 1 ¼” situated in the left temporal region penetrating in scalp. It was the size of 2 ½” x 2 ½ ” with inverted margin on the temporal region joint adjacent to right ear. The doctor has opined that injury No. I of Rajendra Sahni was caused by sharp pointed substance whereas Injury Nos.II and III 4 were caused by gun shot of high velocity. The time elapsed since death was within 18 to 24 hours. Therefore, the evidence of the doctor is to the extent that death of the deceased was homicidal. 6. The informant was examined as P. W.5 and he has stated that at about 8.30 pm on 31.8.1979 while he was returning to his house and in the way when he reached near Mahua tree at bank of the Valan river, there he saw three persons coming out from the side of the Bandh. They were Sita Ram Mahton, Chandra Sekhar Mahton (accused – appellant) and Sarbeshwar Paswan ( absconder), Sita Ram and Chandra Shekhar had fired upon Rajendra Sahni who fell down and died . This occurrence was also seen by Baso Sahani, P.W.3, Jageshwar Sahani, P.W.2, Jagdish Sahani (not examined), Juman Sahani (not examined) and Chandra Shekhar Sahani (not examined). This witness has also stated that he identified the accused persons in the torch light flashed by him. P.Ws 2 and 3 have also supported the evidence of the informant in toto and there is no major contradiction in their evidence from that of the informant. One thing which has come to the evidence of identification was in the torch light that was the sole source of identification because the occurrence took place in the night which was stated to be the dark night. Therefore the source of identification remains the torch and none of the witnesses have been stated that this torch was either shown to the I.O or was seized by the I.O. No doubt, the torch light which was the only source of identification has not been produced to the I.O. and thus it can be said that the investigation was done in an unfair manner. Therefore none production of the torch is a circumstance which can be said to be strong lapse on the part of the investigating officer when the 5 very source of identification was torch light. The fact that all the three witnesses have been examined on behalf of the prosecution as eye witnesses and they have stated that death was on account of firing and only fire arm injuries were found on the dead body of the deceased but they have not stated as to who had caused punctured wound (injury No.I) at the deceased which create great suspicion regarding manner of occurrence. Further, the occurrence is of 31st August 1979 and the F.I.R was registered on 1.9.1979. There was no occasion at all that I.O keep waiting and statement of the eye witnesses P.Ws. 2 and 3 were taken by the investigating officer on 22.11.1979 after much delay. The investigation has to be carried in a way which can be some authenticity or truthfulness of the occurrence. Such delay of about the quarter of three months creates the suspicion about the manner of investigation and it appears that it was a table work of the investigating officer who has earlier conducted the formality of filing the charge sheet. This is strong circumstance which itself creates enough doubt regarding the authenticity of the prosecution case. No doubt, the prosecution case cannot be throne away on the ground of not proper investigation but if such investigation creates doubt at all stages , it cannot be believed that the occurrence took place in the manner as alleged and it makes the entire prosecution version unbelievable. These are sufficient materials by which the prosecution case can be doubted and it can safely be said that the prosecution has not been able to prove that the death of the deceased was in the manner as alleged by the prosecution and once the doubt is created the benefit of doubt should be given to the appellant. 7. It is also relevant to note here that the age of the sole 6 accused appellant has been assessed to be of 24 years in the year 1989. The occurrence is of the year 1979 and even according to the assessment of the court, the accused appellant was of about 14 years at the time of occurrence, which shows that the prosecution case is so sketchy and also the conviction of the appellant mix to the annulled. 8. Accordingly the judgment of conviction and order of sentence passed against the appellant are set aside and the appeal is allowed. The appellant is acquitted of the charges and he is discharged from the liabilities of the bail bond . Let a copy of the judgment be given to the learned amicus curiae appearing on behalf of the appellant for the needful. ( Shyam Kishore Sharma, J) ( Rajendra Kumar Mishra, J) Patna High Court, Patna. Dated: The 12th of July,2011. Namita Kumari/N.A.F.R.