IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.466 of 1988 --------- Against the judgment of conviction and order of sentence dated 21.07.1988 passed by Shri Sidheshwar Narayan, Sessions Judge, Muzaffarpur in Sessions Trial No. 92 of 1986. Bharat Bhagat son of Chatargun Bhagat, resident of village Bhim Nagar, P.S.Baruraj at present Motipur, District Muzaffarpur .... .... Appellant Versus The State Of Bihar .... .... Respondent ========================================================= Appearance : For the Appellant : M/s Kanhaiya Prasad Singh, Sr.Advocate, Yogendra Pd.Sinha,Arun Kumar and Jagdish Prasad No.1, Advocates. For the Respondent : Mr. S.C.Mishra, Addl. P.P. For the Informant : M/s Keshav Srivastava, Sr.Advocate and Pawan Kumar, Advocate ========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ------- ORAL JUDGMENT ------- S.K.Sharma & R.K.Mishra,JJ. There were originally two appellants namely, Tej Narain Bhagat and Bharat Bhagat. On 19.11.2010 it was pointed out by learned counsel appearing on behalf of appellants that appellant no.1 Tej Narain Bhagat son of Ram Lakhan Bhagat resident of village Bhim Nagar, P.S. Baruraj at present Motipur, District Muzaffarpur is dead. To ascertain the authenticity of the prayer, a report was called for from the Superintendent of Police, Muzaffarpur. The Superintendent of Police, Muzaffarpur through his Letter No. 260 dated 27.01.2011 has reported that Tej Narain Bhagat is dead. In view of the report of the Superintendent of Police, Muzaffarpur, the appeal against appellant no.1 Tej Narain Bhagat abates and now the only appellant remaining in Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 2 2 the appeal is Bharat Bhagat who was convicted by learned Sessions Judge, Muzaffarpur in Sessions Trial No. 92 of 1986 vide judgment dated 21.07.1988 for offence under Section 302/34 of the Indian Penal Code and 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code and to undergo rigorous imprisonment for three years under Section 27 of the Arms Act. The sentences were ordered to run concurrently. 2. The prosecution case relates to an occurrence of just passed midnight of 22.05.1985. The case proceeded on the basis of the fardbeyan (Ext.1) of the informant Baldeo Mahto (P.W.6) which was recorded on 23.05.1985 at 3.30 A.M.in the State Dispensary, Motipur by S.I. S.R. Tiwary who was killed subsequently in which it was alleged that in the preceding night he was sleeping at the darwaza of Lakhan Mahto (not examined) and his brother Rajendra Mahto (deceased of the case) was sleeping inside his house. At about 12.30 in the night the informant heard some sound and saw that some persons by flashing torch were moving near his house and 10 persons reached near him and asked him to keep mum. The informant in order to save himself any how entered into darwaza and bolted the door from inside. He saw from the window that Tej Narain Mahto (now dead) and appellant Bharat Bhagat having country made pistol were searching the informant. When informant was not found, then they rushed towards the house of the informant. Meanwhile informant’s elder brother Rajendra Mahto came out from the house on road and suddenly Tej Narain Mahto opened fire which caused injury to his neck and thereafter appellant Bharat Bhagat Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 3 3 fired causing injury on the chest to him upon which the informant’s brother Rajendra Mahto fell down. Other persons accompanying both the accused were not identified but the informant claimed to identify them after seeing their faces. In the meantime, Jagdish Mahto (P.W.3), Deolagan Mahto (P.W.7), Raj Kishore Mahto (P.W.1), Gagandeo Mahto (P.W.2) and Deolal Mahto (not examined) arrived and the accused persons retreated. The occurrence took place on account of the fact that a dacoity was committed earlier in the house of Yogendra Sah (not examined) of Motipur and in that dacoity the informant had assisted the police in nabbing the accused persons. On the basis of fardbeyan, a formal F.I.R.(Ext.4) resulted in Motipur P.S. Case No.58 of 1985 under Sections 148,149, 324, 447 and 307 of the Indian Penal Code and 27 of the Arms Act and investigation was taken up. The injured Rajendra Mahto was initially taken to State Dispensary, Motipur and when his condition did not improve, then he was brought to Muzaffarpur hospital and to Patna Medical College Hospital for better treatment but he succumbed to the injuries. After death the inquest report (Ext.3) was prepared upon which Kailash Mahto (P.W.9) and the informant (P.W.6) put their signatures. His post mortem was done by P.W.11 and the post mortem report (Ext.5) was received. After investigation, chargesheet was submitted and the case was committed to the court of Sessions where charge under Section 302/34 of the Indian Penal Code was framed against all the four accused persons namely, Tej Narain Bhagat, Bharat Bhagat, Suresh Singh and Naresh Singh and charge under Section 27 of the Arms Act was framed only against three Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 4 4 accused namely Tej Narain Bhagat (now dead), Bharat Bhagat (appellant), Naresh Singh and the charges were explained to the accused persons to which they pleaded innocence. Hence the trial proceeded. 3. The defence of the accused persons was of false implication on account of previous enmity. A plea of alibi was taken on behalf of the appellant. The defence on behalf of other two accused namely, Suresh Singh and Naresh Singh was total denial. 4. The joint trial of all the four accused persons proceeded. In order to prove its case, the prosecution examined eleven witnesses. They are : Raj Kishore Mahto (P.W.1), Gagandeo Mahto (P.W.2), Jagdish Mahto (P.W.3.), Mohan Mahto (P.W.4), Raj Govind Mahto (P.W.5), Baldeo Mahto, the informant of the case (P.W.6), Deo Lagan Mahto (P.W.7), Chandra Bhushan Prasad, the Investigating Officer of the case (P.W.8), Kailash Mahto (P.W.9), Prabhu Bhagat (P.W.10) and Dr. Rama Shankar Prasad, who conducted the post mortem over the dead body of the deceased (P.W.11). 5. The defence to support the plea of alibi of one of the accused and also to support the fact that the death of informant’s brother was in course of commission of dacoity has examined seven defence witnesses. They are: D.W.1 Chandra Bhushan Prasad, Sub- Inspector of Police, Pirebahore Police Station, Patna who had prepared the inquest report. D.W.2 is Tilak Sah. D.W.3 is Rameshwar Ram. D.W.4 is Kapildeo Narain. D.W.5 is Vishwanath Pd.Singh, D.W.6 is Mahabir Sharan and D.W.7 is Habib Ahmad who has proved some documents. Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 5 5 6. The defence has exhibited some documents also. Ext.A is tracing map. Ext.B is protest petition dated 5.6.1985. Ext.C and C/1 are certified copy of khatiyan. Ext.D and D/1 are certified copy of Map. Ext.E is certified copy of chargesheet of Motipur P.S.Case No. 23 of l983. Ext.F is certified copy of Kewala dated 12.8.1929 and Ext.G is vakalatnama filed by Baldeo Mahto. 7. The trial court after considering the entire evidences on record by its impugned judgment found two accused namely, Suresh Singh and Naresh Singh not guilty and acquitted them of the charges but the two accused persons namely Tej Narain Mahto (now dead) and appellant Bharat Bhagat were found guilty and they were convicted and sentenced, as stated above. 8. This court is required to reappraise the evidences on record and to see as to whether the prosecution was able to prove the charges against the appellant beyond the shadow of all reasonable doubts. 9. First of all, we would like to discuss the evidence of doctor P.W.11 Dr.Rama Shankar Prasad who conducted the post mortem over the dead body of the deceased. The doctor has found the following ante mortem injuries: (i) Multiple pellet wound on the anterior chest wall on left side spread over an area 6”x5”. A few pellets wounds in front of shoulder and neck were also found. (ii) Lacerated wound on the radical side of right Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 6 6 index finger 1”x1/4”x bone deep. The injures were caused by fire arm fired from a distance of six feet to two yards. The death occurred within 36 hours. 10. From the evidence of the doctor it is apparent that Rajendra Mahto suggested a homicidal death on account of fire arm injuries. The time and manner of death as claimed by the prosecution stand established. 11. Once the prosecution has proved the factum of homicidal death, then the onus is upon it to establish that the death was caused in the manner as alleged. 12. P.W.6 Baldeo Mahto is the informant of the case and he in his evidence has stated that in the night of 22/23rd May, 1985 the informant was sleeping on the dalan of Rajdeo Mahto. There is variation here from the fardbeyan which was the first version of the occurrence. The informant has stated in the fardbeyn that he was sleeping at the darwaza of Lakhan Mahto. Neither Lakhan Mahto nor Rajdeo Mahto has been examined. The informant heard sound of some persons and his sleep was disturbed. He saw some persons coming towards him flashing their torch. 10-12 persons came and asked him to keep mum. The informant thereafter any how went inside the dalan and bolted it from inside. There was a window in the dalan. The informant saw from that window that Tej Narain Bhagat and Bharat Bhagat armed with country made guns were standing. In the meanwhile, informant’s brother Rajendra Mahto came out in the sahan of the house, then he was fired upon by Tej Narain Mahto on his neck and by Bharat Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 7 7 Bhagat on the chest. When the villagers came at the place of occurrence, the accused persons escaped. The offence was committed by a mob of 20-25 persons. The injured was taken to Motipur hospital where initial treatment was given to him and the injured was advised to be taken to Muzaffarpur Hospital and from there he was brought to P.M.C.H. for further treatment but he died. His inquest report was prepared there, upon which this witness had signed. The motive of the occurrence was that Tej Narain Bhagat was apprehended in a dacoity case and the informant had assisted the police in ensuring arrest of Tej Narain Bhagat and for that he was threatened. 13. The deposition of the informant has been assailed by learned counsel for the appellant and it has been submitted that there are major contradiction in his evidence and he is not a reliable witness. Our attention has been drawn towards the fact that the informant has stated in his fardbeyan that he was sleeping in the darwaza of Lakhan Mahto and in his evidence he has stated that he was sleeping at the darwaza of Rajdeo Mahto but neither Lakhan Mahto nor Rajdeo Mahto has been examined and it has not been clarified that both are residents of common house. So it has been submitted that the prosecution has utterly failed to prove as to where the informant was sleeping at the time of occurrence. Another attack on the evidence of the informant has been made by learned counsel for the appellant who has submitted that the informant is specific that he is an eye witness and he has seen the entire occurrence wherein Tej Narain Bhagat has given shot by fire arm which caused injury upon the neck of the informant’s brother Rajendra Mahto Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 8 8 and second injury has been attributed to the appellant Bharat Bhagat which was given on the chest. Pointing out contradictions between the occular evidence and the post mortem report, it has been submitted that, in fact, the deceased had only one ante mortem injury and the second injury received by the deceased was on his finger. It has also been submitted that this gross anomaly between the eye witness and the medical evidence has not been explained, so it is apparent that the informant was not a reliable witness before the court. This fact has found further corroboration from the evidence of D.W.1 wherein he has stated that inquest was prepared at Patna and he has signed upon the inquest report and the signature of informant Baldeo Mahto upon the inquest report has been marked as Ext.2. From the inquest report (Ext.3), version given by the prosecution and the information gathered by Sub-Inspector of Police of Pirbahore Police Station, Patna was that the injuries were caused while dacoity was being committed and on account of that injury the death of Rajendra Mahto has occurred. The informant is the eye witness of the occurrence as well as a witness of inquest report. Eye witness account does not mention anything about the commission of dacoity on the alleged date and time of occurrence whereas the inquest report is specific that offence was committed in another manner and that manner was that the death was caused by the dacoits. These two versions of the informant are at quite variance and it is difficult to reconcile the contradictory version of the occurrence. This vagueness get further compounded from the post mortem report wherein the doctor has not found any injury upon the neck. Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 9 9 14. There are major contradictions between the evidence of the informant as an eye witness and post mortem report as well as inquest report. Therefore, on the evidence of the informant alone it cannot be said that the prosecution has proved its case. 15. The genesis of the occurrence as described by the informant and the other eye witnesses who have been examined on behalf of the prosecution is that the accused persons were annoyed with the informant because he had assisted the police in apprehending one of the accused in another case of dacoity and so a revenge was being sought. 15. Learned counsel appearing on behalf of the appellant has submitted that in paragraph 21 of his evidence, the informant has not been able to give number of the case and the name of informant of that case in which one of the accused of this case was apprehended. On the other hand, learned counsel for the appellant has produced a Xerox copy of police case to show that it was altogether a different case and it was a case of theft in which none of the accused persons was even absconded. 16. If the prosecution comes with a case, then the onus is upon it to prove the case. None of the inmates of the house of the case in which the one of the accused was apprehended has been examined. This would have been clarified if the Investigating Officer would have stated this fact but the Investigating Officer is also silent and he has not stated anything with regard to that. 17. The prosecution case starts from the fardbeyan and the Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 10 10 deposition of the informant and the eye witnesses is that the accused persons were only to take revenge from informant Baldeo Mahto. They had no motive at all to even hurt to any other. Nobody has stated that the accused ever intended to cause even hurt to Rajendra Mahto. Therefore, it has been argued that when there was no motive at all then there was no occasion of killing So the motive is also not proved. It has also been argued that a number of accused had seen to the informant initially and they had enquired his whereabouts but no harm was done to him. Had a determined mob of about two dozen intended to kill the informant, they could have finished him there. So it has been submitted that the motive as alleged has not been proved. 18. Another fact which has come in evidence is that when the accused persons came, the informant hided himself in one of the rooms attached with the darwaza of Lakhan Mahto or Rajdeo Mahto. In the present case, unfortunately, initial Investigating Officer was murdered. So the investigation was started from 31.07.1985. The Investigating Officer who started investigation from 31.07.1985 has stated that he could not receive even the diary or any paper which could have noted the investigation part of the occurrence from 23.05.1985 to 30.07.1985. For more than nine weeks from the date of occurrence, the factum of investigation has not come on the record. Investigating Officer has categorically stated that he could not receive any diary written by the earlier Investigating Officer. Therefore, the fact which has come on the record is that the Investigation from the date of occurrence till 30th July, 1985 has not come on the record. It was a long Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 11 11 gap and any investigation thereafter definitely caused suspicion on the prosecution version. In a criminal case, the investigation must be started at the earliest. When the evidence is that the matter was investigated into and if the case diary is not available then it creates doubt regarding mode of investigation of the case. 19. Another fact which has come on the record is that after Rajendra Mahto was injured and he was taken to Motipur State Dispensary where initial treatment was given to him and thereafter he was referred to Muzaffarpur where also he was treated and was advised to be carried to Patna. Therefore, before death Rajendra Mahto had occasions to be taken to two different places – one at Motipur and second at Muzaffarpur. Not even one witness has come to show as to what treatment was given to Rajendra Mahto at Motipur or Muzaffarpur. This could have been brought on record by the doctor who would have treated Rajendra Mahto there but non-examination of the doctor or non-production of any paper or non-examination of any witness to support the factum of treatment at Motipur or Muzaffarpur has left a big gap in the prosecution version with regard to treatment given to Rajendra Mahto prior to his death. The occurrence has been supported by P.Ws.1, 2, 4 and 6. P.W.3 has stated that after he heard the sound of firing, he went to darwaza of Baldeo Mahto where Rajendra Mahto was found lying injured. Therefore, P.W.3 is not an eye witness of the occurrence. He had gone after the offence was committed. This witness has stated about the firing by two accused persons but he has not stated as to which portion of said Rajendra Mahto Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 12 12 was affected by the firings. P.W.1 has developed the prosecution that he has stated that when Rajendra Mahto came out from the house, then Naresh Singh and Suresh Singh had scuffled with him. Meanwhile two shorts were fired by the accused persons. The involvement of the persons who were alleged to have indulged in scuffle has not been found by the trial court. P.W.2 has stated that Naresh Singh and Suresh Singh caught Rajendra Mahto and thereafter he was fired upon by Tej Narain Bhagat on his chest. Bharat Bhagat had also fired. The involvement of Naresh Singh has been described by P.W.7. In cross-examination P.W.7 has stated that he was also assaulted by the dacoits. If the statement of this witness is taken into consideration in entirety, then he also supports the defence version that murder was committed by the dacoits. This fact finds corroboration from the inquest report as well as from the signature of the informant upon the inquest report. D.W.1 should have been examined on behalf of the prosecution and there is no explanation as to why he was not examined in spite of the fact that he was a chargesheet witness . It appears that the prosecution has to conceal something and that is why he was left. 20. About the place of occurrence, the demeanour of P.W.1. has been noted in paragraph 30 of the evidence wherein when certain questions were to be put to him to know about the place of occurrence, then he has kept mum and after repeated questions he could reply. P.W.2 in paragraph 5 of his evidence has stated that Rajendra Mahto was fired upon when he came at the darwaza of Baldeo Mahto. P.W.3 in paragraph 2 of his evidence has stated that he had found Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 13 13 Rajendra Mahto at the darwaza of Baldeo Mahto. P.W.4 in paragraph 3 has stated that Rajendra Mahto was fired upon when he came at his darwaza. P.W.6 in paragraph 5 of his evidence has stated that Rajendra Mahto was fired upon while he was at his own darwaza but when the Investigating Officer had gone to inspect the place of occurrence then he was shown it by the informant. According to P.W.8 it was upon the sahan. According to fardbeyan when the informant’s brother came at the road, he was fired upon. Therefore, the place of occurrence has been changed and this could have been explained by the first Investigating Officer who had made initial investigation. 21. Learned counsel appearing on behalf of the appellant has assailed the judgment on various counts. By assailing the judgment, it has been submitted that the prosecution has failed to prove the charge against the appellant because the place of occurrence was not proved due to contradictory evidence of the witnesses and the case was not investigated between 25.05.1985 and 31.07.1985 and a bald plea has been taken by P.W. 8, the Investigating Officer that there was no paper of Investigating Officer of that period which goes to show that, in fact, no investigating was done and accordingly only paper work was done at the behest of the informant. It was also argued that the inquest report was prepared earliest and the cause of death mentioned therein was that he was shot dead in course of commission of dacoity. This inquest report (Ext.3) contains the information of a Police Officer who made the inquest. The inquest report also contains the signature of the informant of the present case as well as the signature of a witness Patna High Court CR. APP (DB) No.466 of 1988 dt.20-07-2011 14 14 P.W.9 and they were witnesses to the murder of the informant’s brother Rajendra Mahto in course of commission of dacoity. The submission that the death was in the commission of dacoity has further been corroborated by D.W.1 Braj Bihari Singh who has prepared the inquest report at P.M.C.H. At that time he was posted as Sub-Inspector of Police at Pirbahore Police Station, Patna. Though he was a chargesheet witness and when he was not examined on behalf of the prosecution, he was examined as defence witness. Attention was also drawn towards the fact that P.W.7 has stated that on the night of occurrence, there was a dacoity. Further submission on behalf of the appellant is that the fardbeyan was specific that the accused persons were searching the informant and not others, so there was no motive at all to cause injury or death to any other person than the informant. 22. It has been argued by learned Additional Public Prosecutor assisted by the learned counsel appearing for the informant that the place of occurrence has been described darwaza or sahan of the house of Baldeo Mahto and the road and both are contiguous to each other. A few yards between the two will not change the place of occurrence. Minor variation any further does not cause any doubt about the prosecution version. 23. The place of occurrence has been described as road, sahan, darwaza of the informant, darwaza of Rajendra Mahto and Kachi sarak.