IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.41 of 1989 ------------ Against the judgment of conviction and sentence dated 24.1.1989 passed by 6th Additional Sessions Judge, Purnea in Sessions Case No.405 of 1985. Shiva Narain Mahto, son of Jaltu Mahto, resident of village-Chak, Police Station-Jalalgarh, District- Purnea .... .... Appellant Versus The State of Bihar .... .... Respondent Appearance : For the Appellant: Miss Sushmita Mishra, Adocate (amicus curiae) For the Respondent : Miss Shashi Bala Verma, A.P.P. For the informant : None. ========================================================== CORAM: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) 1. The present appeal has been filed by the sole appellant, who has been convicted under section 302/34 of the Indian Penal Code and section 323 of the Indian Penal Code and sentenced to rigorous imprisonment for life under section 302/34 of the Indian Penal Code and further sentenced for one year under section 323 of the Indian Penal Code. The sentences are to run concurrently. 2. It appears that in this appeal the informant had entered appearance but on both dates when we took up the matter, none was present on behalf of the informant. Similarly, for the appellant no one was present and, as such, we appointed Miss Sushmita Mishra, an Advocate to assist as amicus curiae. We have heard A.P.P. Miss Shashi Bala Verma 3. The prosecution case as evident from the written statement of Most. Karmi (P.W.9) on 7.8.1984 is that she was informed by one Yogendra Mahto (P.W.7) that her son Jai Chand Mahto while going to look after his agriculture field, was brutally assaulted by the appellant and one Raghunath Mahto by Lathi and spade (Kudal). When Yogendra Mahto, who was working in 2 a rice field nearby saw this, he ran to save him but he was also assaulted. He managed to escape and informed Most. Karmi (P.W.9). She came and found her son lying unconscious. The villagers came and then carried him to Jalalgarh police station. It is stated that this was in retaliation of altercation the accused had with the injured a day earlier. Thus, for the occurrence which took place at about 5 a.m. on 27.8.1984 a written statement was given and received by the officer incharge Jalalagarh police station at about 7.30 a.m. He took up the investigation. 4. The injured was then carried to Kasba where he was examined by Dr. Satya Nand Arya (P.W.18), who prepared injury report. Seeing serious condition, he referred the injured to Sadar Hospital, Purnea where on way he died. As such, he was brought dead to Sadar Hospital, Purnea. On the next morning inquest report was prepared and, thereafter, postmortem was conducted by Dr. Ramdeo Rai (P.W.16). Both in the injury report and the post mortem report, there are only two injuries found which have proved fatal. 5. The defence is total denial of any implication in the said incident. 6. Upon the case being committed to the court of session, the appellant was not charged under section 302 of the Indian Penal Code. He along with Raghunath Mahto was charged for the offence under Section 302/34 of the Indian Penal Code and further appellant was also charged under Section 323 of the Indian Penal Code for injuring Yogendra Mahto (P.W.7). The charge under Section 302 of the Indian Penal Code was for causing death of Jaichand Mahto, the son of the informant (P.W.9) on Raghunath Mahto who has been acquitted. 7. In course of trial, the prosecution examined in as much as 18 witnesses but did not examine the Investigating Officer. Narain Chouhan (P.W.5), Prahlad Mahto (P.W.10), Shahdeo Mahto (P.W.12), Gokul Mahto (P.W.14), have been tendered for cross-examination by the prosecution. Jagdeo Mahto (P.W.13) has been declared hostile. Dhaneshwar Sharma (P.W.15) and Manki Soren 3 (P.W.17) are formal in nature. Yogendra Mahto (P.W.7) is an injured eye witness. Most. Karmi (P.W.9) is the informant. Dr. Ramdeo Rai (P.W.16) held postmortem examination on the dead body of the deceased Jai Chand Mahto. Dr. Satya Nand Arya (P.W.18) examined the deceased as an out door patient. Dhaneshwar Sharma (P.W.15) is a Constable, who proved the formal first information report in the writing of R.K.Sinha, Officer Incharge which has been marked as Ext.1. He has also proved endorsement on the first information report in the writing of R.K.Sinha which has been marked as Ext.1/1. Manki Soren (P.W.17) another Constable has proved inquest report (Ext.3) prepared by Sub.Inspector, Fakhruddin. He has also proved signature of Officer Incharge of Jalalgarh Police Station which has been marked as Ext.4. The injury report has been proved by P.W.18 and has been marked as Ext.5. Suffice it to say that there are only three witnesses who claimed to be eye witnesses being P.W.3 & P.W.4 being Ram Autar Chouhan and Ram Kishore Chouhan and P.W.7 Yogendra Mahto. Apart from formal witnesses, the doctor and tendered witnesses all other are admittedly hearsay witnesses. The trial court has refused to accept the testimony of P.W. 3 & P.W.4 rightly for the reason given in paragraph-11 of the judgment under appeal. They claimed to be chance witnesses. In their deposition they admit that they had seen the occurrence but proceeded to fish without disclosing it to any body. It is on the next day they were called by the police and their statement was recorded in paragraph-32 and 33 of the case diary which clearly indicate that they were not eye witnesses. The Investigating Officer having not been examined, the trial court rightly discarded their evidence. That leaves only eye witness, Yogendra Mahto who is P.W.-7. There has been a lengthy cross-examination. 8. Learned counsel for the appellant has drawn our attention first to the examination-in-chief of P.W.7. As noticed earlier in the written statement 4 given by the informant ( P.W.9) she had categorically stated that Yogendra Mahto had informed her that Raghunath Mahto and Sheo Narayan Mahto were both brutally assaulting her son Jaichand Mahto but in the deposition in the court this witness Yogendra Mahto gives a total go by to the said story. He now says that it was only Sheo Narayan Mahto who assaulted the deceased. Thus, we find that prosecution changed its story. Raghunath Mahto has been given a clean chit and the entire blame is to be on the appellant. When we come to the cross- examination, we find that though Yogendra Mahto had claimed to have been injured as well and seen by the doctor, no injury report in support of the injury caused to Yogendra Mahto was brought on record. Only a scar on the body is shown in the court to establish injury caused by Sheo Narayan Mahto. A strong suggestion is made to him that he is not a stranger to the family of deceased but brother-in-law of the deceased, he denies this fact which is very important. The importance of relationship, if it is proved that P.W.7 is brother-in-law of the deceased, is that he would fall within the category of interested and closely related witness. If his testimony, on this relationship, fails, then there would be no prosecution witness to establish the involvement of the appellant as he is the only alleged eye witness. 9. P.W.1 is Aju Mahto. In his cross-examination he has admitted that Yognedra Mahto (P.W.7) who had informed Most Karmi of the occurrence was his son. He has further admitted that the deceased was his son-in-law. The informant, Most. Karmi (P.W.9), has also admitted in her evidence that Yogendra Mahto (P.W.7) was brother-in-law of the deceased’s son (Sala of the deceased). Thus, it would be seen that there has been conscious and deliberate attempt by P.W.7 to conceal his true relationship only to make himself independent witness so that his evidence may be treated as trustworthy. 10. In his deposition, before the court P.W.7 develops the story further 5 in relation to assault. He states that the appellant Shiv Narain Mahto assaulted the deceased, Jai Chand Mahto first innumerable time with Lathi and then with spade (Kudal). This is totally contrary to what charge was framed because Shiv Narain Mahto was not charged under section 302 of the Indian Penal Code at all. It was Raghunath Mahto who was charged under section 302 of the Indian Penal Code whereas the appellant was charged under section 302/34 of the Indian Penal Code and of causing injury to P.W.7 for which he was charged under section 323 of the Indian Penal Code. 11. Therefore, keeping in view the nature of injury found which were only two in number and the allegation of innumerable hit are highly inconsistent. Another reason we find not to trust him is if we refer to the written statement. What is curious is though the formal first information report is proved and marked as Ext.1, the endorsement of the officer incharge Jalalgarh police station on the fardbeyan has been marked as Ext.1/1, on the written statement itself signature of officer incharge, Jalalgarh Police Station has been proved and marked as Ext.4. If one reads the written statement which was the basis of the first information report there are two places in which P.W.9 is said to have stated that she found both her son Jai Chand Mahto and Yogendra Mahto unconscious. This is totally irreconcilable with other depositions in court. If we see these circumstances and depositions, it would be found that the story is being developed, part abandoned and part remaining unsubstantiated. On the whole it make the witness totally unreliable. If P.W.7 becomes totally unreliable then we have no other witness to connect the appellant to the crime alleged. 12. Only to show that prosecution changed its story we may refer to the deposition of the informant (P.W.9) in some aspect. As noticed above, in the written statement given to the police she has alleged that both Raghunath Mahto and Shiv Narain Mahto are said to have assaulted fatally her son which was seen 6 and informed to her by Yogendra Mahto (P.W.7). She categorically now states that it is only Shiv Narain Mahto, who assaulted her deceased son and she denies having made any other statement or given any other statement to the police. This cast doubt on the written statement given to the police and the veracity of her court depostion. It is, apart from, the fact that this statement has not been proved. 13. The prosecution did not produce investigating officer for examination, who could have cleared much of doubt which has been created in his absence and has caused great prejudice to the defence. Thus, it would be seen that initial version itself has become very doubtful. Implements used for assault have neither been seized nor produced in court, place of occurrence is not established, manner of occurrence is not established, involvement of appellant remains to be proved. On this basis we find that conviction of the appellant cannot be sustained at all. There is serious inconsistency from the beginning to the end of the prosecution case i.e. from the first information report to the depositions. The benefit must accrue to the defence. 14. In the result, this appeal is allowed. The appellant is acquitted and discharged from the liability of the bail bonds. 15. In view of valuable assistance to us by Miss Sushmita Mishra as amicus curiae, she is entitled to one hearing fee from Patna High Court, Legal Aid Committee. (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.) Patna High Court The 19th September, 2011 Md.S./NAFR