CRIMINAL APPEAL No.273 OF 1988 Against the judgment dated 13th May 1988 passed by 3rd Additional Sessions Judge, Nawadah, in Session Trial No. 170 of 1987/131 of 1987. 1. Surajdeo Mahto, son of Etwari Mahto, resident of village – Manawan, P.S. – Hasua in the District – Nawadah. 2. Prakash Mahto, son of Harihar Mahto, resident of village – Kumbhrawan, P.S. – Govindpur (Roh) in the district of Nawadah. -------------------- Appellants. Versus THE STATE OF BIHAR ---------------Respondent. ******* For the Appellants : Shri F.A. Khan, Advocate & Shri Prithivi Raj Sinha, Advocate 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 ******* Akhilesh Chandra, J. The two appellants along with three others face trial for the offence under Section 364, 120B and 302/34 of the Indian Penal Code in Sessions Trial No. 170/1987/131/1987 for an allegation to abduct Arun Kumar, son of P.W.16 on 05.04.1987 and subsequently killed him. On conclusion of the trial three accused persons namely, Chando Mahto, Shankar Mahto and Raj Kumar Mahto, were - 2 - acquitted by the trial court but, the two appellants were found guilty and were directed to suffer rigorous imprisonment for life for the offence under Section 302 read with 34 of the Indian Penal Code and rigorous imprisonment for life under Section 120B I.P.C. and the appellant Surajdeo Mahto was further found guilty under Section 364 of the Indian Penal Code and was directed to undergo rigorous imprisonment for five years. However, all the sentences are to run concurrently. The finding of the court below is being challenged in this appeal. 2. The case was instituted on the fardbeyan of Chaukidar 7/2 Ram Briksh Paswan, P.W.8 on 11.04.1987 on finding dead body of young man aged about 18 years lying south of village Ektara on Ram Sagar Aahar, who sustained injuries by sharp weapons and one Chhaku besides some cloths were lying there. On getting information of such dead body P.W.16 along with others went to - 3 - mortuary where before autopsy they could identify that it is the dead body of Arun Kumar son of P.W.16. 3. Here comes the prosecution story as mentioned in Exhibit – 2, the Sanha Entry No. 227 dated 11.04.1987, it reveals that on 05.04.1987 i.e. Sanha Entry No. 227 was recorded at the instance of P.W.3A Iswari Mahton on 11.04.1987 at 9.15 A.M. It is stated that on 05.04.1987 at about 12 in the noon, appellant Surajdeo Mahton, Arun Kumar (deceased) along with Raj Kumar Prasad, Sundar Kumar, went to Cinema but did not return on the following day i.e. on 06.04.1987. Raj Kumar Prasad and Sundar Kumar, on query informed that the deceased along with Suraj had gone to Amba Rajauli at his Sasural and when he did not return till 09.04.1987, Raj Kumar Prasad, was sent there to bring him, but, on return he informed in the evening that deceased and appellant Surajdeo had stayed there for two days and on 08.04.1987, had - 4 - gone to village Dopta at the Sasural of sister of appellant Surajdeo Mahto, where one Kailash Mahto was sent to enquire. He on return intimated that the two had already left the village Dopta and appellant Suraj alone returned. On inquiry, he expressed his inability to say anything about the deceased and he has already left the village now. Police was requested to trace out the deceased Arun and giving details of his features and wearings. 4. Since the unknown dead body could be identified as of the deceased Arun Kumar, son of P.W.16. Investigation proceeded in the light of submission of charge sheet. Commitment of the case, trial proceeded against the five persons out of whom ultimately the thee were acquitted. But two appellants were held guilty convicted and sentenced giving rise to this instant appeal. 5. In support of the charges, prosecution has examined altogether 19 witnesses out of whom P.W.9, Avimanu Singh, was - 5 - tendered for cross examination. P.W.6, Dr. B.P. Singh, who held autopsy prove post mortem report Exhibit – 1. 6. P.W.18 Ram Chandra Singh, Investigating Officer of the case, P.W.7, Rajendra Singh, P.W.8, Ram Brikch Paswan, are formal witnesses and rest of the witnesses including P.W.16, Ramji Mahton, father of the deceased and P.W.2 Dilkeshwar Mahto, father- in-law of the deceased are material witnesses. 7. Learned counsel for the appellant while assailing the findings of the trial court submitted that the prosecution has not been able to establish the charges against the appellants. There is no consistency between the witnesses on vital issues and there is unexplained delay in lodging the case. Further learned counsel placed reliance upon decision of the Apex Court in the case of Ramesh Bhai and others Vs. The State of Rajasthan reported in 2010(1) SC Criminal 662. Further it is submitted that the chain of - 6 - circumstances are not complete. Thus, appellants deserve an order of acquittal. 8. On the other hand, learned Additional Public Prosecutor, while supporting the finding of the trial court submitted that the deceased was taken out on 05.04.1987, and witnesses examined in court who have said that they could see the appellants along with the deceased till some time before, he was killed and body was thrown in lonely place to consider the guilt. The chain of circumstance is complete on consideration whereof their guilt is proved and finding of the court below requires no interference. 9. P.W.8, Ram Brikch Paswan, is the person at whose instance the case was instituted against unknown on recovery of the dead body of the deceased initially unknown till identified. He has in examination-in-chief stated what it could gather and stated before the police in cross examination, he has said that in cross - 7 - examination, this witness has stated that the night of 10th April, 1987, itself he could learn about the dead body lying but, due to lonely place and forest area did not go there, informed the police in the next morning i.e. on 11.04.1987. P.W.16, Ramji Mahto, is the worst affected but competent person being father of the deceased and is in know of the happenings sine beginning. He has come to say that on 05.04.1987, while he was at his house, his son Arun Kumar and nephew (brother-in-law’s son) P.W.17, Sundar Prasad was there in the noon. Appellant Surajdeo besides Raj Kumar arrived and appellant started persuading deceased to go to cinema. Who initially refused in want of money, but, when appellant accepted to bear the expenses the deceased along with Surajdeo , Raj Kumar and P.W.17 went for cinema. In the next day i.e. on 06.04.1987 i.e. Monday, only, Raj Kumar and Sundar returned. On inquiry, they stated that appellant Surajdeo had gone along with the deceased - 8 - Arun Kumar to village Amwa. This witness intimated P.W.1 Kailash Mahto, who assured to enquire into the matter and on 10.04.1987, P.W.1, intimated him that he could learn that Arun Kumar had gone to village Dokta, at the request of this witness PW1 went there and PW.16 went to village Amwa, where he could learn from his Samdhi (father-in-law of Arun) P.W.2, that Arun Kumar and Surajdeo stayed with him for two days but at the insistence of Surajdeo, left the place on 8th April 1987 for village Dopta. He further says that on 11.04.1987, P.W.1 intimated that at village Dopta, Shankar told him that he has returned after getting Surajdeo and Arun arrived at village Andharwari on Thursday i.e. 09.04.1987, and then on 11.04.1987, this witness P.W.16 through P.W.3A, Ishwar Mahto got Sanha Entry Exhibit – 2, recorded and on next morning i.e. on 12.04.1987, he could received a massage from Hisua Thana about the recovery of a dead body, then he along with this witness went to - 9 - mortuary and identified the dead body as of his son Arun Kumar. He further identified some articles recovered nearby. 10. This witness has stated about persuasion of appellant Surajdeo to deceased Arun Kumar and his information gathered from different sources. Company of deceased and appellant Surajdeo for relevant period. he has in para 3 stated that Surajdeo had a doubt that deceased Arun Kumar had developed some illicit connection with his sister Rita, who was subsequently married to co- accused Shankar. 11. It is contended by learned counsel for the appellant that identifying the dead body as of the deceased Arun was not possible, as the doctor, P.W.6, who hold autopsy has stated that it was not possible to identify the dead body by face since body was at the composing stage. Now here comes for consideration that evidence of doctor P.W.6 at 12.30 P.M. and found the following anti mortem - 10 - injuries :- (i) Incised wound 6” x 11/2 x 3”x 1/6” cutting under lying skin fascia, muscles, hybroid bones, Treachea, oesophagusus nerves and vessels over the front of neck. (ii) Incised would 2” x 1/3” x 1/6”over the chin. (iii) Incised would 1” x 1/3” x 1/6” over left side front of chest in the second inter costal space. (iv) Incised would over the left hand on inner side at the level of promixal inter phangenal joint varying size from 1” x 1/3” x 1/5” 1/3” x 1/10” x 1/6”. 12. The doctor has stated that such injuries are sufficient to cause death in normal course of nature, and as per doctor’s opinion, time elapsed from death before 36-72 hours that means the death may have been caused in the night of 10th April 1987 or before. 13. In cross examination, the doctor has said that after dissection it was difficult to identify by facial feature and this statement of the doctor cannot help the appellant on whose behalf it was submitted that identification of the body was not possible. The - 11 - doctor has said it is difficult to identify only after dissection but right from P.W.16 and other witnesses who went to identify the dead body has claimed to identify the body in the post mortem house before the autopsy was held. 14. As per prosecution case stated above, deceased was taken out on 5th of April 1987 i.e. Sunday, dead body was found on 11.04.1987 i.e. on Saturday on 6th day of he was being taken out. The prosecution is to establish that deceased was in the company of the appellants during the period since on and after the happenings of Sunday i.e. 05.04.1987 on this point apart from P.W. 16 has stated above, there is P.W.17 Sundar Prasad, also who was since beginning with the deceased left along with him, appellant and others to view cinema and further in examination in chief, he said that the group viewed cinema from 3 to 6 and thereafter when they came to Nawada Motor Stand to return home but, appellant - 12 - Surajdeo, insisted to go to his sister’s house in village Kumbhrawan, where all went and from there others returned, but, the appellant insisted deceased Arun to go to village Amwa. 15. There is nothing in cross examination of this witness to disbelieve this story as to deceased was in company of appellant Surajdeo on 05.04.1987 and 06.04.1987, there are two other witnesses, P.W.3A Ishwari Mahto who got Exhibit 2, the Sanha Entry recorded on 11.05.1987 has said that on 05.04.1987 the Sunday at about 12, he could see the deceased, Raj kumar, P.W.17, Sundar and appellant Surajdeo in a group and on query, appellant intimated that they are going to cinema. He further stated about recording of Sanha Entry at the instance of P.W.16, another witness on this point i.e. company on 5th is P.W.5 Umeshwar Prasad, who has said that appellant, deceased and company went to see cinema on 05.04.1987, but, on Friday i.e. 11.04.1987, when this witness met - 13 - with appellant Surajdeo, he intimated on query that Arun has gone to Delhi, and in cross examination, there is nothing pointed out to disbelieve him, so this witness has stated about some wrong information being given by this appellant Surajdeo, about the deceased going to Delhi also apart from being in company on 05.04.1987. 16. Next comes P.W.2 Dilkeshwar Mahto, father-in-law of the deceased who has come to say that appellant Surajdeo and deceased Arun stayed at his house on Monday and Tuesday i.e. on 06.04.1987 and 07.04.1987, he is resident of village Amwa and here statement of P.W. 17 stands corroborated that appellant and Arun had to go village Amna, has stated by appellant on Monday i.e. 06.04.1987, when P.W.17 had to return without the deceased from the house of sister of the appellant, this witness P.W.2 further says that on Wednesday, they left the place to go to village Dopta and - 14 - statement of P.W.16 father of the deceased also stands corroborated when this witness says that he (P.W.16, Ramji Mahto, father of the deceased) arrived at Friday to enquire about his son, again there is nothing pointed out in cross examination of this witness to disbelieve him. 17. Kailash Mahto, appearing as first prosecution witness has said that father of the deceased met him and intimated that his son, Arun Kumar, had gone to see cinema along with appellants Surajdeo and others, but, did not return. He assured to get the matter enquired further inquiry he could know through Shankar, that he has returned after getting Surajdeo and Arun arrived at village Andharwari. This fact was intimated by this witness to P.W.16, father of the deceased. This query was made by P.W.1 from Shankar at village Dopta. Attention of this witness was drawn on some of the statements allegedly made by him before police under Section 161 - 15 - of the Criminal Procedure Code, which he has denied but, there is absolutely nothing to disbelieve this witness, further matters stated above which further stands corroborated by other witnesses discussed below. 18. Now comes P.W.3 and P.W.4, who have respectively claimed to see the appellants and other accused persons in village Kumbhrawan on 09.04.1987. P.W.3, Sheodani Mahto, has seen the two appellants, Surajdeo and Prakash besides three acquitted accused at about 2 P.M. in Bahiyar of village Kumbhrawan, along with the deceased. On query, appellant Surajdeo stated that they are going to Kakolat. This witness happens to be sister’s son of P.W.16 Ramji Mahto and in cross examination, he says that on getting information about the deceased in village Kumbhrawan, his mother had gone to call him but at the insistence of wife of the appellant Prakash he could not go there. - 16 - 19. P.W.4, Deepak Mahto who is father of P.W.3 ha stated that on getting information about Arun arrival at the house of Prakash he along with his wife went to call him, where he could meet both the appellants along with Arun and Prakash said that Arun may go after taking meals but, he did not and when wife of this witness going to call she was intimated that they had already left the village. In this way, the prosecution has stated about company of the appellants with the deceased till 09.05.1987, and some wrong information given by appellants Surajdeo to P.W.5 on 11.04.1987. P.W.7, Rajendra Singh, is a formal lwitness, exhibit-2 Sanha Entry. P.W.15, Shadeo Ram, is also a formal witness about recovery of dead body and witness of inquest report proved his signature and signature of one Mahendra Pandey Exhibit - 3 & 3/1 and also Exhibit 3/2 & 3/3 signatures on seizure list and material exhibits I – VIII. 20. There are five witnesses P.Ws. 10 – 14 are the - 17 - persons coming to say that on 10.04.1987, they could see a Tractor going towards Kakolat, thereafter they could see two persons alone returning from that side. Statement of these witnesses is relevant only due to recovery of dead body in that area and statement of other witnesses that appellant and deceased were said to have going towards Kakolat. 21. P.W.10, Bharat Singh, has said that while he was going to his home to take meal could see a tractor carrying for the five persons going faced towards Kakolat at about 8 P.M. on Thursday next morning. He could learn lying of dead body. P.W.11 Kashi Mahto, also had said that he could heard sound of the vehicle in the said night at the relevant time P.W.12 Ram Prasad Yadav, is the person who could able to see at about 10 P.M. arriving two persons at the shop of Arjun and he was closed and sat on the bench, on query, hey said to be resident of village Manua (Hisua), - 18 - they were aged about 20-25 and 30-35 years near person was a bit short height. On further inquiry, they could show their bag containing diary etc. This witness would see them in the light of lamp burning there because the night was dark. However, in court, this witness identified appellant Prakash Mahto, one of the two persons present there at the relevant time. Though, other two witnesses P.W.13 and 14, respectively, Baleshwar Prasad and Mathura Saw, claiming to see two persons at relevant time as stated by P.W.12, but, they could not identify any one. On this basis, it was contended by learned counsel for the appellant that identification by this witness P.W.12 is of no value. 22. P.W.18 is Ram Chandra Singh, Investigating Officer, has prove Exhibit 4, formal First Information Report, Exhibit – 5 seizure list and Exhibit – 6, the inquest report. On inspection of place of occurrence during investigation on 11.04.1987, he stated that it is - 19 - the open place east of the road going to Kakolat, adjacent east to Ektara Canal. He has further given boundary by the place of occurrence such as parti land at a distance of 100 yards, there is Ram Sagar Aahar. He further stated recovery of material exhibits nearby the places as record of identification of the dead body in para 3 towards end he said that father of the deceased and others identified him as of dead body of the Arun. Attention of this witness was drawn towards some statement recorded under Section 161 of the Criminal Procedure Code of the witnesses like P.W.1 Kailash Mahto and P.W.3A Ishwari Mahto and others but, it is none of these are of much importance. 23. The trial court on consideration of the materials available by way of oral testimony of the witnesses and materials exhibits came to the conclusion that out of the two appellants Surajdeo is the person taking out the deceased from his house and - 20 - subsequently appellant Prakash both related to each other joined him brought the deceased towards Kakolat and got him killed, thereafter, leaving the dead body, left the place of occurrence, and on the basis thereof hold them guilty. 24. No doubt, this is a case of circumstantial evidence none has seen the appellants killing the deceased but, as stated prosecution has established the chain of circumstances. Appellant Surajdeo taking out to deceased on 05.04.1987, remained with him all along and appellant Prakash joining their company. There is date and stage wise testimony of the prosecution witnesses in support of their assertion and since the two appellants were last seen along with the deceased and appellant Surajdeo was giving wrong information about the deceased going to Delhi, the court below has rightly held them guilty. 25. The decision of the Apex Court in case of Ramesh - 21 - Bhai and others Vs. The State of Rajasthan reported in 2010(1)SC Criminal 662 = 2009 (12) SCC 603 placed and relied upon by the appellants is not at all applicable in the instant appeal. 26. In the case before the Apex Court, there was a gap of 11 days between recovery of dead body last seen of the accused along with the deceased besides other discrepancies like cause of death etc. and the chain of circumstances was not found complete whereas in the instant case within five days of absence, dead body of the deceased Arun Kumar, was found lying abandoned, injuries inflicted by sharp weapons and there are witnesses stated above to see the appellants along with the deceased almost till last date. 27. Learned counsel for the appellant could not succeed in drawing our attention towards any vital infirmity in the findings of the court below holds the appellants guilty and sentenced accordingly. - 22 - 28. Thus, we find no merit in this appeal, accordingly, it is dismissed, and the appellants, who are on bail, are directed to surrender before the court below at once to serve remaining part of their sentence, the court below is to take all care and issue due process in the event of failure of appellants to do so at the earliest. (Akhilesh Chandra, J.) Dharnidhar Jha, J. (Dharnidhar Jha, J.) Patna High Court The 20th May, 2010. Rajeev/ (N.A.F.R.)