CRIMINAL APPEAL No.446 OF 2002 CRIMINAL APPEAL No.467 OF 2002 CRIMINAL APPEAL No.477 OF 2002 CRIMINAL APPEAL No.489 OF 2002 CRIMINAL APPEAL No.512 OF 2002 CRIMINAL APPEAL No.521 OF 2002 Against the judgment and order of conviction and sentence passed by Sri Abinasi Saran Lal, Presiding Officer, Additional Court (I), Fast Track Court – 1, Samastipur in Sessions Trial No. 41 of 1984 / 72 of 2002. RAMASHRAYA SAHNI @ BHAGAT JI, SON OF LATE SUBALAL SAHNI, RESIDENT OF VILLAGE – KORBADHA, POLICE STATION – SAMASTIPUR (MUFFASSIL), DISTRICT – SAMASTIPUR. Appellant in Criminal Appeal No. 446/2002 SATRUGHAN RAI @ SUDAN, SON OF SRI RAM PRIT ROY, RESIDENT OF VILLAGE - KORBADHA, POLICE STATION –MUFFASSIL, DISTRICT – SAMASTIPUR Appellant in Criminal Appeal No. 467 of 2002 1. MOHAN MAHTO, SON OF BIKAU MAHTO 2. RAMASHRAY ROY, SON OF CHHOTE LAL ROY 3. RAM CHANDRA MAHTO, SON OF RAUDI MAHTO, ALL RESIDENT OF VILLAGE KORBADHA, P.S. MUFFASSIL, DISTRICT – SAMASTIPUR. Appellants in Criminal Appeal No. 477 of 2002 1. MOHIT SAHANI @ MOHIT SAHNI, SON OF LATE MUSAHARU SAHANI. 2. RAM UDGAR SAHANI, SON OF LATE DORIK SAHANI, BOTH RESIDNET OF VILLAGE - KORBADHA, P.S. – MUFASSIL, DISTRICT – SAMASTIPUR. 3. RAM JATAN MAHTO, SON OF RAM KHELAWAN MAHTO, RESIDENT OF VILLAGE – BHAMARUPUR, P.S. – MUFASSIL, DISTRICT – SAMASTIPUR. Appellants in Criminal Appeal No. 489 of 2002 1. SHANKAR MAHTO, SON OF RAMDHANI MAHTO. 2. SHIVAJEE MAHTO, SON OF RAMDHANI MAHTO. 3. DUKHIYA MAHTO, SON OF RAMDHANI MAHTO. ALL ARE RESIDENTS OF VILLAGE – BHAMARUPUR, POLICE STATION – MUFFASIL, DISTRICT – SAMASTIPUR. Appellants in Criminal Appeal No. 512 of 2002 SIYA MAHTO, SON OF SANT LAL MAHTO, RESIDENT OF VILLAGE KORBADHA, P.S. – MUFASSIL, DISTRICT – SAMASTIPUR. Appellant in Criminal Appeal No. 521 of 2002 Versus THE STATE OF BIHAR …………… Respondent (in all the appeals) 2 P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. These six criminal appeals have been heard together where in Cr. Misc. (DB) No. 446 of 2002, preferred by the appellants Ramashraya Sahni @ Bhagat Ji, Cr. Appeal (DB) No. 467 of 2002 Satrughan Rai @ Sudan, Cr. Appeal (DB) No. 477 of 2002 Mohan Mahto, Ramashray Roy and Ram Chandra Mahto, Cr. Appeal (DB) No. 489 of 2002 Mohit Sahani @ Mohit Sahni, Ram Udgar Sahani and Ram Jatan Mahto, Cr. Appeal (DB) No. 512 Shankar Mahto, Shivajee Mahto and Dukhiya Mahto and Cr. Appeal (DB) No. 521 of 2002 Siy Mahto. All the appellants have been convicted under Section 302 / 34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and a fine of Rs.5,000/- each and in default of fine to further go rigorous imprisonment for one year. Further, again the appellants Dukhiya Mahto and Ram Jatan Mahto have been sentenced to undergo rigorous imprisonment for three years for conviction under Section 148 of the Indian Penal Code and other appellants have been sentenced for two years for conviction under Section 147 of the Indian Penal Code. Dukhiya Mahto has further been sentenced to undergo rigorous imprisonment for three years for conviction under Section 324 of the Indian Penal Code and Siya Mahto and Shivajee Mahto have 3 further been sentenced to undergo rigorous imprisonment for three years for conviction for offence under Section 379 of the Indian Penal Code, however, all the sentences have been ordered to run concurrently. 2. The prosecution case as alleged in the fardbeyan by the informant Yogendra Choudhary is that at 7:30 A.M on 09.05.1982 he along with his son proceeded to Samastipur by bicycle with Rs.6,000/- (six thousand) for purchase of the articles for marriage of his younger son, both of them reached at Samastipur Ujiyarpur Pitch Road after passing through Harha Chour by Kachhi Road. When they reached near Bhabhrapul on the said Samastipur Ujiyarpur road, then Shatrugan Rai @ Shudan, Ramashraya Sahni @ Bhagat Ji, Ram Dhani Mahto, Shankar Mahto, Shivajee Mahto, Ram Chandra Mahto, Dular Chandra Mahto, Siya Mahto, Mohan Mahto, Mohit Sahani, Ram Udgar Sahani, Ramashray Rai, Dukihya Mahto and Ramjatan Mahto all armed with Lathi, Bhala and Chura and Ram Jatan Mahto armed with Bhala and rest of the accused persons armed with Lathi, on seeing the informant and his son, Shatrugan Rai ordered to kill Kamashwar Choudhary so that no person be left to support Yogendra Choudhary in his old age. It is further alleged that on issuing such command all the accused persons with intention to kill his son started assaulting by Lathi causing fracture to his son and his son fell down. Further case of the prosecution is that the son of the informant tried to save the assault on his head by his left 4 hand and then the left hand got injured and broken and his son fell down. Thereafter Ram Dhani Mahto and Shivajee Mahto caught hold both the hands of the son of the informant from two sides and Shankar Mahto started assaulting on his chest and rest accused persons started assaulting him by lathi like harvesting of maize crop. It has further been alleged that the son of the informant was tossing and telling by which he got injury on the entire body and in the mean time, Dhukiya Mahto assaulted the son of informant by dagger on his head and Siya Mahto took away six thousnad rupees from the upper pocket of the shirt and Shivajee Mahto snatched the watch and Dularchandra Mahto took the cycle after the assault of the son of informant. All the accused persons took the son of informant towards the east with intention to kill and dispose of the dead body, then on the Halla of the informant, the passersby Janardan Jha (P.W. 6), Jay Kant Choudhary (P.W. (9), Bipendra Choudhary (P.W. 11), Dinesh Choudhary (P.W. 12) came and saw the occurrence. It has further been alleged that the informant has litigation with Ramdhani Mahto and due to the said litigation and enmity the accused persons with common intention, have assaulted and took the body to dispose it in unconscious stage. 3. The fardbeyan of the informant was recorded by N.C. Ganguley S.I. of Muffasil P.S. on 09.05.1982 at 9.00 A.M and thereafter the FIR was lodged and formal FIR was lodged at 4.00 P.M and after 5 investigation the charge-sheet was submitted and on submission of charge-sheet cognizance was taken and thereafter case was committed to the Court of Sessions after commitment. The charges were framed under Sections 302/34 of the Indian Penal Code against all the accused persons and against Ramjatan Mahto and Dukhiya Mahto charges were framed under Section 148 of the Indian Penal Code and rest of the persons were charged under Section 147 of the Indian Penal Code and again Dukhiya Mahto charged under Section 324 of the Indian Penal Code and Shivajee Mahto charged under Section 379 of the Indian Penal Code. After framing of the charge trial proceeded and 13 witnesses were examined on behalf of the prosecution. P.W. 1 Dr. P.C Jain Civil Surgeon, P.W. 2 Dr. Brahamanand Prasad who has conducted the autopsy on the person of the deceased, P.W. 3 Ramlagan Kumar, P.W.4 Pramod Choudhary, P.W.5 Anandee Devi, P.W. 6 Janardan Jha, P.W. 7 Jaykant Jha @ Isser, P.W. 8 Tribhuwan Das, P.W. 9 Jaykant Choudhary, P.W. 10 Jogendra Choudhary, P.W. 11 Bijendra Choudhary, P.W. 12 Dinesh Choudhary and P.W. 13 P.C. Ganguley. 4. The documentary evidence examined in this case is Ext. 1 letter in the pen and signature of Dr. P.C. Jain, Ext. 2 is the post mortem report, Ext. 3 is the FIR, Ext. 4 is the signature of Jogendra Choudhary on fardbeyan, Ext. 5 fardbeyan in the pen of Mahesh ASI, Ext. 6 report in the writing and signature of S.I. N.C. Ganguley, Ext. 7 order of S.I. 6 N.C. Ganguley to Constable Ram Sagar Rai, Ext. 8 inquest report in the pen and signature of Mr. N.C Ganguley, Ext. 9 sketch map of P.O, Ext. 10 endorsement at seven places on the sketch map. 5. The defend has also adduced oral and documentary evidence. The oral evidence adduced on behalf of the defence is D.W. 1 Kamashwar Lal, a formal witness who has formally proved Ext. A. The documentary evidence adduced on behalf of the defence is Ext. A, a certificate, Ext. B certified copy of judgment of Cr. Appeal No. 278 of 1983, Ext. B/1 is certified copy of the judgment of Civil Revision No. 721 of 1980. 6. On considering both oral and documentary evidence the trial court convicted and sentenced the appellants as stated above. 7. Learned counsel for the appellants contended that the appellants have falsely been implicated in this case out of the enmity and no occurrence as alleged occurred at and about the time, place and manner of the occurrence and the appellants have falsely been implicated due to local politics and the prosecution has not been able to prove the charges and the witnesses are partition witnesses and they have deposed falsely and hence, the prosecution has not been able to prove the charges. 8. Learned counsel for the appellants, further contended that the FIR itself is doubtful as the occurrence took place at 9.00 A.M on 05.09.1982, the FIR is at about 4.00 P.M where as the inquest report prepared at about 1.00 P.M and some of the witnesses though relation of 7 the informant but has not been named in the FIR. The mother P.W. 5, P.W. 4, P.W. 7 though the near relative and claim to be the eye witness but not named in the FIR and it has been contended that P.O is doubtful and further that the FIR is ante dated as dispatched to the Chief Judicial Magistrate after much delay and the prosecution story is not corroborated by medical evidence and ocular witnesses and further the P.O. has not been established as the witnesses have deposed about the two P.Os at two places. It has further been contended that the prosecution has not been able to prove the charges beyond reasonable doubt. 9. Learned counsel for the State, however, submitted that the witnesses have supported the prosecution case and the evidence of doctor is also corroborative as regards the time and manner of occurrence and hence, prosecution has proved the case beyond reasonable doubt. 10. On respective submission, the question for consideration is whether the prosecution has been able to prove the charges beyond reasonable doubts. Now I proceed to consider the evidence of prosecution in the light of submission made by the respective parties. 11. The prosecution case as alleged is that the informant Yogendra Choudhary proceeded along with his son at 7.30 A.M. from his house and reached at the Samastipur Ujiyarpur Pitch Road by Kacchi Road 8 passing through Harhara Chaur where the said Kacchi Road met with the bridge on the Ujiyarpur pitch Road where they reached near Bhabra bridge then they saw fourteen accused persons named in the fardbeyan were armed with Lathi and Bhala. On the command of Satrughan Rai to kill Kameshwar Choudhary, all the accused persons started assaulting the son of informant and they carried the son of the informant with intention to dispose of his body or to conceal his body. On his Halla it is alleged that Janardan Jha P.W. 6, Jay Kant Jha P.W. 7, Bipin Choudhary P.W. 11, and Dinesh Choudhary P.W. 12, reached there and it is claimed that they have seen the occurrence. 12. For convenience I proceed to consider the evidence of P.W. 1, the Doctor P.C. Jain. He has stated that he was posted at Samastipur Sadar Hospital and on that date at about 12.40 P.M Havildar, Kameshwar Choudhary who was admitted in the hospital died. After verifying the death P.W. 1 wrote to the Officer-In-Charge, Samastipur through the letter which has been proved and marked as Ext. 1. Ext. 1 is a letter regarding the intimation to the Officer-In-Charge that Havildar Kameshwar Choudhary who was admitted in the hospital with multiple injury expired and to do needful. The letter was with signature of P.C Jain with specific mention of a time 12.40 P.M dated 09.05.1982. He has further stated that the details of admission of deceased Havildar Kameshwar Choudhary would be there in the hospital and the time 9 elapsed between the death and the post mortem examination is calculated on the basis of rigor mortis or the composition of the body. 13. P.W. 2 is Dr. Brahmanand Prasad who conducted the autopsy on the person of the deceased and has stated that on 09.05.1982 he was posted at Sadar Hospital, Samastipur and on that date at 5.00 P.M he held post mortem on the body of Kameshwar Choudhary, aged about 32 years, son of Jageshwar Choudhary of village Brahmpura and found the following ante mortem injury 1. Incised wound 1” x 1/2" x mucels deep on left side of occipital parietal junction, blood clots were seen trickled down the skull from the wound, 2. Bruise 1.1/2 x 1.1/2” on front of left shoulder, 3. Bruise 2” x 3” on the back of left shoulder, 4. Bruise blueish in color 3” x 3/4" on outer portion of the left upper arm, 5. Bruise 6” x 1.1/2” on horigentally on left scapular region, 6. Bruise 3”x 3” on the left side of lower back, 7. Bruise 1” x 1/2"x 4” on outer portion of the left upper arm at its upper ends on dissection blood clots present in both side of the front of the chest on the middle beneath skin and subcutaneous tissues, 8. Fracture of sternum on upper portion, 9. Fracture of first to forth ribs on its medial end on left side, 10. Fracture of ribs on its medial portion from first to 6th. P.W. 1 has further stated that stomach contained liquid material, intestine was full of gasses and time lapse since death was within 48 hours. 10 14. However, in cross examination he has stated 48 hours which he has mentioned means 12 hours to 48 hours. He has further stated that it is not necessary within 48 hours means within 36 to 48 hours. However, the occurrence is alleged to be at 7:30 A.M on 09.05.2002 and as per the evidence of the Doctor P.W. 1 victim was admitted in hospital and reported his death at 12.40 and sent the letter to the Police Officer though the admission or the treatment at the hospital has not been proved and the post mortem conducted as appeared from the evidence of P.W. 2 was at 5.00 P.M on 09.05.1982 and it mentions that the time elapsed since death to the time of post mortem is 12 hours to 48 hours. However, if the death is at 12.40 P.M as reported by P.W. 1 the initial report of the Doctor falsifies as it has been reported that the death was in between 12 hours to 48 hours where as the victim was reported to have died as per the evidence of P.W. 1 at 12.40 P.M and the post mortem examination according to P.W. 2 conducted at 5.00 P.M on the same day, that is, within four and half hours of the reported death by P.W. 1 and the evidence of the doctor regarding death appears to be contradictory to each other as per the prosecution case. 15. P.W. 3 is a formal witness who has formally proved the formal FIR. 16. P.W. 4 is Pramod Choudhary, however, he has stated in his evidence that he was going to Samastipur at about 8.00 A.M and 11 reached at the north of Mahadeva Pokhar and then saw 20 to 25 persons, out of whom he identified Satrughan Rai, Ram Dhani Mahto, Shankar Mahto, Dukhi Mahto, Ram Jatan Mahto, Shivajee Mahto, Mohit Mahto, Ram Udgar Mahto, Ramchandra Mahto, Dular Chand Mahto, all were armed with Lathi, Dhukhi Mahto armed with dagger, Ram Jatan was armed with Bhala and others with Lathi and all the persons were assaulting Kamashwer by Lathi and some person were dragging him toward east that is east of the road. He has further stated that to the east of the road there is orchard. He has further stated that he remained there for 3 – 4 minutes and that he did not identify Shivajee Mahto by face and Ram Udgar Mahto but identified others. However, this witness is stated in his cross examination that he has got no relation with Yogendra Choudhary. He has further stated that Mahadeva Phokar is about half kilometer far off from his village and the orchard where the victim was being taken is about 300 yards north of Mahadeva Phokar and the house of Yogendra Choudhary is about 150 yards south from his house and the distance between the road and the orchard is about 300 yards east. He has further stated that he saw the assault to the west of the road and the accused persons dragging the victim from there. He has further stated that at the time of occurrence there were no house in between the road and the orchard and had denied the suggestion that adjoining of the road there are houses of Ramdev Thakur, Debu Mahto, Ramchandra Sahani 12 and Mohan Sahnai. Hence, taking the topography of the P.O. as per his evidence and the place from where he claims to have seen the occurrence from which is northern portion of the Mahadeva Pokhar and has stated that P.O, the orchard, is about 200 yards to the north of the Pokhar and the road is 300 yards from the orchard to the east and the occurrence of assault was being taken place on the western side of road and if it is accepted then it is apparent that he was seeing the occurrence from more than 200 yards. 17. P.W. 5 Anandi Devi, she has stated that at about 8.00 to 8.30 P.M there was Halla in the village at her court yard at his house. Then she went to the orchard and saw that 20-30 people were assaulting Kameshwar Choudhary by Lathi and he fell down and out of them she identified Dhukiya Mahto, Ram Dhani Mahto, Ram Jatan Mahto, Ramashraya Sahni, Satrughan Rai & Sudhar but did not identify the rest but claims to identify by face. He has further stated that when she protested, then she was chased and then she directly came to the police station along with his son Krishna Chandra. She identifies accused Dukhiya, Ramdhani and Ramjatan but did not identify Ramashraya and Satrughan. But identify Mohan, Ramashraya and Satrughan by face. Further she has stated in cross examination that she does not know the name of the husband of her daughter Sunaina and denied that Janardan Jha is her son. However, she stated that on Halla that the bicycle of his 13 son was snatched, she rushed there. She has stated that 10-15 persons were on the road. She has stated that she was chased from the road side. However, she has stated that the orchard is contiguous to the road. However, she has stated that she saw that they got her son assaulted by tying the victim with a Chouki in the field. She has also stated that the orchard is about half mile from his house. She has further stated that when she was going to the police station then her husband and Daroga were coming on rickshaw and they took her also on the rickshaw. Daroga took her statement, hence, from evidence of this witness it appears that at 8.00 to 8.30 she heard Halla, she went to the orchard and saw the occurrence. However, in her cross examination she stated that there were 10-15 people at the road and from the road itself she was chased though states that the road and the orchard are adjoining and it is a Pitch Road and she saw the occurrence from the road itself and claims that the assault was being done by tying the victim on the tree and victim was crying for help and she claims blood oozing out from his mouth and she was driven out immediately. Hence, her evidence does not transpire confidence. 18. P.W. 6 is Janardan Rai, he has stated that he reached ahead Mahadeva Pokhar then saw Yogendra Choudhary and Kameshwar Choudhary going in Harhara Choudhary which is a way for pedestrian. He has further stated that he was on the road and then Yogendra 14 Choudhary and kameshwar Choudhary reached near Bhabra bridge and there 5 to 20 persons surrounded him and then they started assaulting Kameshwar Choudhary by Lathi then Kameshwar Choudhary fell down and then accused persons took him towards the orchard and Yogendra Choudhary started making Halla. However, he has claimed that he identified Ram Dhani out of them and claims that he cannot identify others even by face and hence, this witness identified only one accused, however, he is the FIR witness. He has further stated that Bhabra Bridge is about 100 yards whereas he has further stated that Bhabra Bridge is about a distance of one kilometer from Mahadeva Pokhar. However, he has stated that he has seen Yogendra and Kameshwar prior to the assault going and both Yogendra and Kameshwar were going on road, one was ahead and other was behind and has stated that both were going on foot but there was one cycle but they were going on foot. He has further stated that after proceeding about 10 to 15 Lagga the victim was surrounded and Yogendra at the time of assault went away and states that he does not remember about the chasing by Yogendra. However, this witness denied the suggestion that Yogendra Choudhary is his father-in-law. However, he has stated that he does not know the name of his wife and denied the suggestion that he knows the name of his wife as Sunaina who is daughter of Yogendra Choudhary. However, he has further stated that the name of father-in-law is Rambaran Rai. 15 19. P.W. 7 is Jaykant Jha @ Ishar, he has stated that he reached at as near the house of Hamen Mahato, then learnt that in the orchard of Hamen Mahto a Brahman is being assaulted and then he went to the orchard and then found Kameshwar Choudhary in the orchard and his body is in field with dirt and he saw Ram Dhani Mahto, Shankar Mahto, Kameshwar Choudhary had pressed his chest by Lathi and Shivajeee Mahto, Ramjatan Mahto assaulting Kameshwar Choudhary and Kameshwar was asking for help. He has further stated that Dhukihya was jumping on the chest of Kameshwar Choudhary and when he protested then he heard the sound that he is taking the side, so assault him and then he flew away. He has further stated that a cycle was there. He has further stated that Daroga had taken his statement after 5 to 10 days of the occurrence. He has further stated that he saw the wife of Kameshwar Choudhary standing there at a distance of 25 to 30 Lagga from Kameshwar and he was about 1 to 1/2 Lagga from the wife of Kameshwar Choudhary. However, though this witness claims that he learnt about the occurrence, he rushed to the orchard and saw there Kameshwar Choudhary and the wife of Kameshwar Choudhary. However, this witness stated that he saw the occurrence from the orchard and reached at orchard after learning about the occurrence at 8.00 A.M in the village. 16 20. P.W. 8 is Tribhuban Das, however, he has stated that he was getting Mung crop plucked in a field of Harhara Chaur at about 7 – 8 A.M. He heard Halla then he saw 16 people were assaulting Kameshwar Choudhary at a distance of 5 – 6 Lagga. Out of them he identified Ramdhani armed with Bhala, Ramchandra Mahto