CRIMINAL APPEAL No.295 OF 1988 ******* Against the judgment and order of Sessions Judge, Nalanda, at Biharsharief, dated 10th May, 1986 in Sessions Trial no.38 of 1984. ******* 1. Ragho Mahto 2. Chulhan Mahto---------------------Appellants Versus The State of Bihar---------------Respondent ******* For the appellants : Shri Om Prakash Pandey, Amicus Curiae For the State : Sushri Shashi Bala Verma, APP ******* P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ. Eight accused persons were charged together for committing the murder of Hare Krishna Singh in furtherance of their common intention. Besides, the two appellants before us, Ragho Mahton, Chulhan Mahton alias Mahendra Prasad and acquitted Bijendra Mahton were charged separately together under Section 302 of the Penal Code. The appellants as also acquitted 2 accused Subhash Mahton, Jhulli Mahton, and Kishore Mahton were charged but separately together for committing offence under Section 323 of the Penal Code and Section 27 of the Arms Act. The trial was held in Sessions Trial no. 38 of 1984 by the judgment dated 10th May, 1988 . Six accused persons were acquitted but two appellants before us, Ragho Mahton and Chulhan Mahton alias Mahendra Mahton were found guilty for committing offence under Section 302 of the Penal Code and Section 27 of the Arms Act and were accordingly directed to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code. No sentence was passed against the appellants for their conviction under Section 27 of the Arms Act. The present appeal brings into question the judgment of conviction aforesaid. 2. P.W.3, Ram Keshwar Mahto, came to the Police Station, Hilsa, and lodged a report alleging that in the night intervening 13th and 14th February, 1983 he along with the deceased Hare Krishna Singh, who was his sister’s son, was sleeping along with Surendar Kumar, P.W.2, and villagers of the deceased, namely, 3 Vijoy Kumar, P.W.5, Krishna Prasad Sinha, P.W.4, in the Jhopri (hut) which was situated at the tube well of the deceased which was to run by an electric motor. At about 12.00 P.M. the accused persons, who were put on trial, came there armed with guns and rifles and surrounded the hut. The informant stated that all the occupants of the hut were awake. Appellant Chulhan Mahto alias Mahendra Mahto stated that deceased was posing himself to be the leader of the labourers and as such he be killed. All the accused persons, as such entered into the hut and the first shot was fired by appellant Chulhan Mahto alias Mahendra Mahto which hit the deceased Hare Krishna Singh on his temporal region. Accused Ragho Mahto also fired a shot into the head of the deceased and accused and accused Bijendra Mahto fired a shot into the right hand of the deceased. The other accused persons, during the course of the occurrence, were catching hold of the deceased by his hands and accused Subhash Mahto was sitting on his chest. The informant stated that he and others were also assaulted by the accused persons with the butt of their respective guns or rifles and commanded 4 the informant not to divulge the story to any one else he will also be killed. Informant claimed identifying the accused persons and seeing the occurrence in the lantern which was allegedly burning there inside the Jhopri (hut) and further in the light of the torches flashed by the accused persons. The informant stated that after having accomplished their goal the accused persons went into the eastern direction whereafter Kesho Mahto, not examined, Kameshwar Prasad, not examined, and others came and they were also told about the occurrence by P.W.3. The first information report was drawn up by P.W.6 and he recorded the statement of other persons who had accompanied the informant up to the Police Station and issued the injury certificate in respect of the injuries found on the person of the informant and Bijoy Kumar and Suraj. Thereafter he sent injured persons for medical examination to the hospital and himself proceeded to the place of occurrence which was found to be a Jhopri (hut) which was belonged to the informant and which was found open. He found the dead body lying inside the Jhopri (hut) and held the inquest and prepared the inquest 5 report. There was a well situated outside the Jhopri (hut). P.W.6 found blood fallen inside the Jhopri and, accordingly, he seized the blood and prepared the seizure memo. After examining some of the witnesses he submitted final report for the prosecution of the accused persons. 3. The defence of the appellants was that no one had seen or identified any of the accused persons and the witnesses were speaking out of their imagination and further that the appellants had falsely been implicated. 4. The prosecution examined seven witnesses in the case for pressing the charges out of which P.W.7 had held the post mortem examination and prepared the report (Exhibit-7). Out of the remaining witnesses P.W.1, Babu Lal Prasad, was a formal witness and P.W.2, Surednra Kumar, was son of the informant who was aged about ten years on the date of occurrence as has been recorded by the learned trial Judge in his judgment. P.W.3, Ram Keshwar Mahto, informant, P.W.4, Krishna Prasad Sinha, and P.W.5, Vijay Kumar, supported the charges by claiming themselves to be eye 6 witnesses. 5. Learned trial Judge found the participation of these two appellants established beyond the shadow of doubt but found the complicity of the remaining six accused persons not established and as such while convicting the two appellants, acquitted the remaining six accused persons. 6. Inspite of the case coming on the list of the court since over a month, no one appeared in the present appeal for assisting us on behalf of the two appellants. Finding ourselves in such a dire state we requested Shri Om Prakash Pandey, who assisted us and we record our appreciation of his readiness to assist us. Accordingly, we have heard Shri Pandey, in support of the appeal and we have also heard Sushri Shashi Bala Verma, the learned Additional Public Prosecutor in opposing it. 7. Shri Pandey took us through the evidence of the witnesses to submit that P.W.2, Surednra Kumar, was aged about ten years and claimed sleeping in the hut along with Sinha Prasad, Bijoy Kumar and the 7 informant, Ram Keshwar Mahto, out of whom Sinha Prasad appears not examined. However, the evidence of P.W.4, Krishna Prasad Sinha, may indicate that he claimed himself also named Sinha Prasad or Sanehi but that fact appears controverted by the evidence of the Investigating Officer, P.W.6 in paragraphs 6 and 9 when he stated that he never recorded the statement of any Snehi or Sinha Prasad and further that P.W.4, Krishna Prasad Sinha, who was examined by him, had never stated to him that he was also known as Snehi or Sinha Prasaad. It was contended that even if accepting that P.W.4, Krishna Prasad Sinha, had really seen the occurrence and was sleeping inside the hut in the fateful night, his evidence appears bearing certain features which improbabilises the whole incident as told by him to the Court. In the above regard our attention was drawn to paragraph 10 of P.W.4 in which he has stated that no sooner the shots were fired the deceased died but he again amended himself that the deceased did not die rather he remained wreathing in pain so much so that he used to go out of the hut and he indeed died outside it. It was further 8 stated by P.W.4 in the same paragraph that blood gushed out of the wounds but no blood fell either on the clothes of the witnesses or on the wall of the hut. It was contended that the above evidence of P.W.4 is contrary to the findings recorded by the Investigating Officer P.W.6, in inquest report Exhibit-6 in which he has recorded that the dead body was found inside the hut. 8. As regards the source of identification P.W.4 has stated that it was a lantern which was burning in the Jhopri (hut) but the Investigating Officer found an old broken lantern without any glass. It was contended by Shri Pandey that in order to making up the above lapse it was invented by the witnesses while deposing in court that the glass of the lantern was smashed by the accused persons before leaving the scene of occurrence but that evidence could also not be accepted as the Investigating Officer did not find any broken pieces of glass at the place of occurrence. Both P.W.3 and P.W.2, the son of the deceased who were sleeping inside the Jhopri (hut) stated that there was no electric supply in the night and as such there was no electric light available there. P.W.2 9 has stated that it was a dark night. It was contended that the identification of the accused persons could not be possible under such a situation. The evidence of doctor reads different the story of the prosecution that three shots were fired by three accused persons including the two appellants as the doctor found only two gun shot injuries and as regards the fourth injury which was found on the cheek which has smashed the mandible of the deceased, there was no author about other in the first information report or in the evidence. It was as such contended that the evidence of the prosecution had many difficulties arising out of many infirmities which ought to have been taken note of by the learned trial Judge so as to convict the appellants also. 9. Sushri Shashi Bala Verma has responded to the above contentions vehemently by submitting that the evidence of P.W.2 and that of other witnesses sufficiently suggest that the man was killed which is also indicated by the evidence of finding the dead body inside the hut and the support prosecution story gets from the medical evidence. It was contended that the judgment of 10 conviction does not require any interference. 10. The basic question which appears dealt with by the learned trial Judge in his judgment is the available source of identification at the scene of occurrence. The learned trial Judge has not denied he fact that it was a dark night and further that there was no electric light available in the hut, which was the place of occurrence. The learned trial Judge has heavily placed reliance upon the finding of a lantern which was hanging at some place inside the Jhopri (hut) which, as per the witnesses, was kept burning during the night and in the light of which the identification of the accused persons was facilitated. The learned trial Judge over-ruled the contention that it was a broken old lantern and without any glass and as such could not be accepted as a sufficient and plausible means of providing sufficient light at the scene of occurrence. The learned trial Judge also over- ruled the contention that it was absurd to believe that the accused persons will smash the glass when they were leaving the scene of occurrence. If at all they could have done it, it would have been done by them as soon as they 11 had reached the scene of occurrence so as to warding of any evidence of source of identification. 11. The learned trial Judge has recorded that the Investigating Officer of the case, P.W.6, found a broken lantern hanging from a particular place of the hut and that lantern was without a glass. We are not convinced by the reasoning which was assigned by the learned trial Judge for over ruling the contention that the evidence of the witnesses that the accused persons had smashed the glass of the lantern while they were leaving for two reasons. The first of the reasons is that the Investigating Officer did not find any broken pieces of the glass at or around the scene of occurrence. There was no evidence on the record to indicate that there had been any sweeping or cleaning before the arrival of the Police of the place of occurrence as a result of which the glass pieces could be absent from there. The evidence of P.W.6, Investigating Officer, does not indicate that any lantern was seized from the place of occurrence as such the claim of the witnesses that there was a lantern which was burning there appears not acceptable. So far as the 12 availability of the electric light is concerned, this may appear from the evidence of P.W.2, the son of the informant, in paragraph 5 that the electric supply was not available even after the accused persons had come inside the Jhopri and further that it was a dark night. P.W.3, the informant, has stated in paragraph 16 that the electric light was available only when it was dawn and after the occurrence. Thus, the fact remains that it was a dark night and there was no source of identification even if other witnesses could be challenging the court that there was a lantern kept burning there. This was such an important fact which ought to have told by P.W. 2 but he also does not say anything about that. Thus, we find that the evidence, which was available to the learned trial Judge on record of the case were not absolutely insufficient to record a finding that there was sufficient light facilitating the identification of the accused persons at the scene of occurrence. We find that the real state of thing appears told by P.W.2 in paragraph 7 of his evidence. It has been stated by the witness that when the accused persons were about to kill his father they covered 13 the faces all the other occupants of the hut with blanket. This line of the evidence by P.W.2 further rules out any possibility of the accused persons being identified by any persons. 12. Improbabilities in the evidence of witnesses was what being argued to us by Shri Pandey when he was submitting that the evidence of P.W.4 in paragraph 10 is completely inconsistent with the basic prosecution document and as such his evidence must not be accepted. Likewise the evidence of P.W.3 in paragraph 16 was also making it a possibility that the accused persons had not been identified by any of the witnesses. P.W.3 in the same paragraph 16 has stated that after the occurrence many villagers had assembled but he did not tell any of them as to who were the culprits who had committed the murder of Hare Krishna Singh. He appears kept a stony silence till he start for the Police Station and when he starts he appeared calling many persons from the village and consulting them. Not only that the evidence of Investigating Officer in paragraph 5 indicates that one Govind Prasad, who was an Advocate 14 by profession and who was a member of the Communist Party of India had reached the place of occurrence. After the informant had barely seen the accused persons and has also identified them correctly then what was the need for him to consult many persons by calling them from village and what was the need of calling Govind Prasad, an Advocate, at the place of occurrence. This line of evidence to us appears a bit queer and that further queer the value of the evidence of the informant. We find the statement of P.W.3 about not telling the names of any accused persons to the villages who had assembled just after the occurrence or early in the morning of it is sufficient indicator that he had either not seen the occurrence or if he was present inside the hut he had not identified any of the accused persons. 13. There is story of three shots being fired by three different accused persons. Appellant Chulhan Mahto alias Mahendra Mahto is said to have fired his first shot into the temple of the deceased and from very close range. Likewise the appellant Ragho Mahto, who was also alleged to have fired a shot into the head of the 15 deceased also from a close range. The third accused Bijendra Mahto (since acquitted) was alleged to have fired the shot into the right hand of the deceased. It is expected that there would have been injuries on the above parts of the body of the deceased as a result of the three shots which were allegedly fired by the two appellants and the acquitted accused, Bigendra Mahto. The evidence of P.W.7, Dr. Bindeshwar Prasad, could be relevant for the above purpose. While holding post mortem examination he found the following injuries: “1. A small circular gun shot wound ¾” diameter over right parietal region with a bullet in the scalp and parietal bone. Membrane of the brain was not ruptured. Bullet was sealed in a bottle and sent to the P.S. concerned. There was no blackening on the surface around the bullet. 2. A lacerated wound 1 ¼” in diameter on the outer side of the right eye over the frontal bone (right side) cranial cavity deep, margin inverted, communicating to injury no.3 below. 3. A lacerated wound 2 ½” bone deed with inverted margin over the scalp. Over left parietal region, communicating with injury no.2 above. 4. A lacerated wound 3 x ½” over the left cheek. Left mandible broken into pieces. Caused by hard and blunt 16 substance. 5. A lacerated wound on left palm ¾” x 1/8” skin deep. Caused by hard and blunt substance.” 14. On perusal of the finding recorded by P.W.7 in Exhibit-7, the post mortem report, is that injuries no.2 and 3 were communicating to each other and there were either fire arm injuries like injury no.1. Thus, the injuries resulting from gun shots were only two in number. The other two injuries which had been described as serial no.4 and 5 were opined to caused by hard and blunt substance. As may appear from the description of injury no.4 it was found by P.W.7 that the assaults at cheek of the deceased had resulted in the fracture of the mandible bone into pieces. There was no allegation as to who had given that blow by any hard blunt substance upon the deceased. Besides the allegation as regards firing by accused Bijendra Mahto on the right side of the deceased appears disbelieved by the Court below itself as a result of which that accused was acquitted. In addition to the above the first information report reads and that is supported by evidence of P.W.4 that after having received the injuries the deceased was 17 wreathing in pain and was rolling over the surface of the hut but the Investigating Officer of the case, P.W.6, has stated in his evidence that he did not find any mark of rolling over which might have been caused on account of the above fact stated by the witness inside the hut. At the same time, we find that there was no injury found on the dead body which could support the above story. This appears of some substance inasmuch as if the deceased was simply trying to roll over or was turning or twisting on account of the pain arising out of the injuries the story of accused Subhash sitting on his chest was introduced and in that case it is expected that there must have been some good number of injuries on the back portion of the body of the deceased. 15. What appear from the above discussion of evidence in the light of the submissions made before us by the learned counsel of the two sides, is that there were many infirmities and improbabilities in the evidence of the witnesses, the evidence adduced in the trial court by the prosecution could reasonably give rise to two inferences and, thus, the two views are. The view could 18 be there that the witnesses many not have been present at the scene of occurrence and the views could be also if they were indeed present then there was no source of identification available there. None of them had really identified any of the accused persons. As a result of which they appear falling many errors and inconsistency which creates infirmity in the prosecution case. On a consideration of this infirmities and improbabilities we find that it was a case in which the two appellants also deserve to be acquitted on the ground of giving benefit of doubt. We, accordingly, acquit them by setting aside the order of conviction and sentence passed on each of them. The appeal is allowed. The two appellants are on bail, they shall stand discharged from the liabilities of their respective bonds. 16. We record our sincere appreciation of the assistance rendered by Shri Om Prakash Pandey in hearing this appeal and disposing it of. We feel that Shri Pandey deserves a fee for arguing present appeal and that should be paid by the High Court Legal Services Committee. Let a copy of first and last page of the 19 present judgment be made available to Shri Pandey. (Ddharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 06th May, 2010. AAhmad/(NAFR).