Criminal Appeal No. 592 OF 2005 (DB) With Criminal Appeal No. 243 of 2003 (DB) With Criminal Appeal No. 294 of 2003 (DB) ------ Cr.Appeal Nos. 243 and 294 of 2003 are against the judgment of conviction dated 05.05.2003 and order of sentence dated 19.05.2003 passed by Sri Paras Nath Sinha,Presiding Officer,Addl.Court (Fast Track),Munger in Sessions Case No. 202 of 1995/T.R.No. 209 of 2002 and Cr.Appeal No.592 of 2005 (DB) is against the judgment of conviction dated 26.08.2005 and order of sentence dated 31.8.2005 passed by Sri Krishna Kumar Srivastava, Additional Sessions Judge, Fast Track Court,Sheikhpura in Sessions Case No.202 A of 1995/T.R.No. 257 of 2005. ---------- Parshu Ram Dhadhi @ Dhari ------ -- Appellant (in Cr.A.No.592/2005) ----- 1. Tulsi Dhadhi @ Dhari 2. Dasrath Dhadhi @ Dhari 3. Darogi Dhadhi @ Dhari 4. Awadhesh Dhadhi @ Dhari 5. Ranglal Dhadhi @ Dhari 6. Loha Dhadhi @ Dhari 7. Jhingan Dhadhi @ Dhari 8. Anik Dhadhi @ Dhari 9. Chaman Dhadhi @ Dhari 10. Baran Dhadhi @ Dhari 11. Kumar Dhadhi @ Dhari ------ Appellants (in Cr.A.No.243 of 2003) ----- 1. Lakhan Dhadhi @ Dhari 2. Bachchu Dhadhi @ Dhari 3. Ramanand Dhadhi @ Dhari 4. Upendra Dhadhi @ Dhari ----- Appellants (in Cr.A.No. 294 of 2003) VERSUS The State of Bihar ---- Respondent (in all the three appeals) For the appellant : M/s Mani Bhushan Kumar No.1 and Pramod Kumar (in Cr.A.No. 592 of 2005) For the appellants : M/s M.S.Madhup, Amresh, Ram Pravesh and Sanjeev Ranjan (in Cr.A.Nos 243 and 294 of 2003) 2 S.K.Sharma & D.K.Singh,JJ. For the State : Ms. Shashi Bala Verma, Addl.P.P. (in all the three appeals) ------ P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ------- Cr.Appeal No. 592 of 2005(DB) has been preferred against the judgment of conviction dated 26.08.2005 and order of sentence dated 31.08.2005 passed by Sri Krishna Kumar Srivastava, Additional Sessions Judge, Fast Track Court, Sheikhpura in Sessions Trial No. 202A of 1995/T.R.No. 257 of 2005 whereby appellant Parshu Ram Dhadhi has been convicted under Sections 302/149 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life under Section 302/149 of the Indian Penal Code but no separate sentence has been awarded under Section 148 of the Indian Penal Code. 2. Cr.Appeal Nos. 243 and 294 of 2003 (DB) have been preferred against the judgment of conviction dated 05.05.2003 and order of sentence dated 15.05.2003 passed by Sri Paras Nath Sinha, Presiding Officer, Addl. Court (Fast Track), Munger whereby appellant Kumar Dhadhi has been convicted under Sections 147, 323, 302 read with Sections 149 and 448 of the Indian Penal Code but he has only been sentenced under Section 302 read with Section 149 of 3 the Indian Penal Code to undergo rigorous imprisonment for life but no separate sentence has been awarded under Sections 147,323 and 448 of the Indian Penal Code and rest appellants of this appeal namely, appellants Tulsi Dhadhi, Dashrath Dhadhi, Darogi Dhadhi, Awadhesh Dhadhi, Ranglal Dhadhi, Loha Dhadhi, Jhingan Dhadhi, Anik Dhadhi, Chaman Dhadhi and Baran Dhadhi have been convicted under Sections 148, 302 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life but no separate sentence has been awarded under Section 148 of the Indian Penal Code. 3. Appellants of Cr.Appeal No. 294 of 2003(DB) namely, Lakhan Dhadhi, Bachchu Dhadhi, Ramanand Dhadhi and Upendra Dhadhi, have been convicted under Sections 148,302 and 448 of the Indian Penal Code and under Section 27 of the Arms Act and sentenced only under Section 302 of the Indian Penal Code to undergo imprisonment for life but no separate sentence has been awarded under Sections 148,448 of the Indian Penal Code and under Section 27 of the Arms Act. Appellant Lakhan Dhadhi has further been convicted under Section 307 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years. However, both the sentences of this appellant are ordered to run concurrently. 4 4. Appellant Moti Dhadhi has been convicted under Sections 148, 307,302 read with Section 149 of the Indian Penal Code and 27 of the Arms Act and accused Mahesh Dhadhi has been convicted under Sections 148 and 302 read with Section 149 of the Indian Penal Code but have not been awarded any sentence. Since the trial court calculated their age as 25 years and 24 years, respectively, as on 3.10.2001, when the occurrence took place on 2.1.1993, hence they were assessed to be 16 years to 17 years on the date of occurrence. Accordingly, their sentence was deferred untill Juvenile Justice Board determines their age. 5. The prosecution case started with the fardbeyan of Baleshwar Mahto recorded on 2.1.1993 at about 8.00 P.M., by Officer-in-Charge, Sheikhpura P.S. in village Bhadausi, to the effect that quarrel between Dhadhi and Dhanuk caste was going on since long, in Tal area and several occurrences had taken place in recent months and due to such occurrences, people of Dhadhi community were quite active but there was no impact on the villagers of the informant. It is alleged by the informant that few days prior to the occurrence, the people of Dhadhi community forcefully abducted the son-in-law of Sharan Mahto and the cousin of his son-in-law. The informant informed the Chaukidar Tulsi Ram about abduction but 5 no case was instituted. On 2.1.1993 at about 9.00 A.M. Chaukidar Tulsi Ram came to the informant‟s village and informed that the matter has been reported to Police and the Dy.S.P. is expected to reach the village. Thereafter, at the instigation of Chaukidar Tulsi Dhadhi, 59 people of Dhadhi community from the nearby villages came variously armed and attacked 18 houses of Dhanuk community and looted their household articles and assaulted them. The occurrence took place between 11.A.M to 1.00 P.M. on 2.1.1993. In the meantime, when the police came, the miscreants fired upon the police party also and fled away towards village Bhadosi. While retreating, the miscreants set their houses on fire. The informant, after fleeing away of the miscreants, came to know that Sukhdeo Mahto, Bideshi Mahto, Nischal Mahto, Mittan Mahto and Chetlal Mahto have been killed by the miscreants by causing fire arm injuries. The informant (P.W.18) also came to know from Hari Charan Mahto that accused Indradeo Mahto committed murder of Sukhdeo Mahto and Lakhan Dhadhi, Ramanand Dhadhi, Upendra Dhadhi and Bechchu Dhadhi committed murder of Nishchal Mahto, Chetlal Mahto, Bideshi Mahto and Mittan Mahto, respectively. Initially Bideshi Mahto and Mittan Mahto were badly injured but they succumbed to injuries while being taken to Sheikhpura Hospital. The 6 informant also claimed that Ram Mahto, Lalkishun Mahto and Ajo Devi wife of Chetlal Mahto also received injuries. The witnesses to the occurrence are villagers but the fardbeyan does not disclose the name of any witness though the informant claims to have signed the fardbeyan in presence of co-villager Haricharan Mahto. Haricharan Mahto and Gayani Mahto are attesting witnesses to the fardbeyan. 6. Fifty eight persons were named as accused in the first information report. Chargesheet was filed against fifty eight named accused and two non- F.I.R.accused namely, Dadhibal Dhari and Girja Dhari. Order of cognizance was passed on 8.6.1993. Out of sixty accused, two accused persons namely, Parshu Ram Dhadhi and Guriya Dhadhi were reported to be in Jamui and Sheikhpura jail, respectively. Guriya Dhadhi was produced from Sheikhpura Jail but when no communication was received from Jamui jail regarding production of Parshu Ram Dhadhi, he was declared absconder. Two other accused persons, namely, Bulak Dhadhi and Lulha Dhadhi were also declared absconders. Five persons namely, Hari Dhadhi, Gajadhar Dhadhi, Indradeo Dhadhi, Tirpit Dhadhi and Karu Dhadhi died during pendency of the trial. Hence, fifty two accused persons faced trial in Sessions case No. 202 of 1995, Trial No. 209 of 2002. 7 7. Charges under Section 302 of the Indian Penal Code and 27 of the Arms Act were framed against Lakhan Dhadhi, Bachu Dhadhi, Ramanand Dhadhi and Upendra Dhadhi for committing murder of Sukhdeo Mahto, Nischal Mahto, Chhotelal Mahto, Bideshi Mahto and Mittal Mahto, respectively. Charge under Section 307 of the Indian Penal Code was framed against Lakhan Dhadhi, Awadhesh Dhadhi and Moti Dhadhi for attempting to commit murder of Ram Mahto, Sharan Mahto and Lalkishun Mahto. Kumar Dhadhi was charged under Section 323 of the Indian Penal Code for causing injury to Ram Ashray Mahto. Charge under Section 148 of the Indian Penal Code was framed against all the 52 accused persons who faced the trial for committing the offence of rioting, being armed with fire arms. Charge under Section 448 of the Indian Penal Code was framed against all 52 accused persons for committing house trespass in the house of Sukhdeo Mahto, Nischal Mahto, Chotelal Mahto, Bideshi Mahto, Mital Mahto and others. Charge under Section 302/149 of the Indian Penal Code was framed against all the 52 accused persons for forming an unlawful assembly in prosecution of the common object to commit murder. Charge under Section 380 of the Indian Penal Code was also framed against all the 52 accused persons for committing theft in the house of Ram Lakhan Mahto, 8 Sukhdeo Mahto, Nishchal Mahto, Chetlal Mahto, Bideshi Mahto, Mitan Mahto, Hari Charan Mahto, Urmila Devi, Rachia Mahto, Saran Mahto, Ram Sakhi Devi. Charge under Section 436 of the Indian Penal Code was framed against all the 52 accused persons for causing mischief by fire with intent to cause destruction of the houses of Bane Dhadhi, Banbka Dhadhi, Ranjit Dhadhi and others. 8. Subsequently, accused Parshu Ram Dhadhi (appellant of Cr.Appeal No. 592 of 2005) was produced from Jamui jail. Hence, after commitment, charges were separately framed against him under Sections 302/149,148,,448, 380 and 436 of the Indian Penal Code and his trial proceeded separately which concluded in conviction. 9. Charges were framed against the accused persons who pleaded innocence and faced the trial. 10. In order to prove its case, the prosecution has examined altogether 20 witnesses. Most of them are family members of the injured or deceased and the official witnesses. 11. P.W.1 Ram Mahto is son of deceased Mittal Mahto. P.W.2 Hari Charan Mahto is son of Sukhdeo Mahto, P.W.3 Ram Sakhiya Devi is wife of deceased Sukhdeo Mahto, P.W.4 Saran Mahto is son-in-law of one of the deceased and was kidnapped. P.W.5 Daso 9 Mahto is brother of deceased Sukhdeo Mahto and Bideshi Mahto. P.W.6 Urmila Devi is the wife of deceased Nischal Mahto. P.W.7 Shankar Mahto is son of deceased Bideshi Mahto. P.W.8 is Dr. Dharam Nath Choudhary who conducted postmortem over the dead body of Nishchal Mahto. P.W.9 is Dr.Mehi Lal Singh who conducted postmortem over the dead body of Sukhdeo Mahto. P.W.10 is Dr.Birendra Pd.Gupta who conducted postmortem over the dead body of Mital Mahto. P.W.11 Kamaldeo Mahto alias Kamo Mahto is brother of deceased Bideshi Mahto and Sukhdeo Mahto. P.W.12 Ram Ashray Mahto is an injured and son of deceased Chetlal Mahto. P.W.13 Sabiya Devi is wife of deceased Bideshi Mahto. P.W.14 is Dr.Kameshwar Prasad Sinha who conducted postmortem over the dead body of Chetlal Mahto. P.W.15 is Dr.Rakesh Kumar Sinha who conducted post mortem over the dead body of Bideshi Mahto. P.W.16 is Dr.Rajendra Prasad Jaiswal who examined Ram Mahto (P.W.1), Lal Kishun Mahto (P.W.17), Ram Ashray Mahto (P.W.12) and Ajo Devi wife of deceased Chetlal Mahto. P.W.17 Lal Kishun Mahto is one of the injured. P.W.18 Baleshwar Mahto is the informant of the case. P.W.19 Gyani Mahto is a formal witness, who has proved inquest reports of the deceased. P.W.20 Ram Bachan Singh is a retired Sub-Inspector of Police who recorded the fardbeyan and prepared the inquest reports. Main Investigating 10 Officer of the case has not been examined during trial. 12. It is the admitted fact that in the alleged occurrence five persons namely, Sukhdeo Mahto, Nishchal Mahto, Chet Lal Mahto, Bideshi Mahto and Mittan Mahto were killed whereas seven persons received injuries namely, Ram Mahto who is son of deceased Mittan Mahto and has been examined as P.W.1, Sharan Mahto is son-in-law of deceased Chetlal Mahto and has been examined as P.W.4, Daso Mahto is brother of deceased Bideshi Mahto and has been examined as P.W.5,Ram Ashray Mahto who is son of deceased Chetlal Mahto has been examined as P.W.12 and Lalkishun Mahto who has been examined as P.W.17. Though, Ajo Devi (wife of deceased Chetlal Mahto) and Nunlal Mahto are alleged to have sustained injuries, but they have not been examined. 13. All the five deceased were killed at five different places. Hence witnesses have initially deposed specifically, only with regard to victim related to them but at subsequent stage of evidence, claimed to have seen the murder and assault of all the victims. 14. So far as assault on deceased Sukhdeo Mahto and Bidesshi Mahto is concerned, the prosecution has examined P.Ws. 2, 3, 5, 7, 11 and 13,of whom P.Ws.2 11 and 3 are the son and wife, respectively, of deceased Sukhdeo Mahto. P.Ws.5 and 11 are brothers of deceased Bideshi Mahto and Sukhdeo Mahto. P.W.7 is son of deceased Bideshi Mahto. P.W.13 is wife of deceased Bideshi Mahto. Hence, it appears that the prosecution, in order to prove its case with regard to murder of Sukhdeo Mahto and Bideshi Mahto, have only examined the family members. 15. P.W.2 in paragraph 1 of his evidence, has deposed that Indradeo Dhadhi (since dead) inflicted three sword blows on the head of his father Sukhdeo Mahto, as a result of which he died. It has been further stated that Lakhan Dhadhi fired at Nishchal Mahto and Indradeo Dhadhi (since dead) assaulted twice by sword to Nishchal Mahto. Ramnandan Dhadhi caused injury by rifle to Chetlal Matho causing his death. Bachu Dhadhi fired from double storeyed roof at Mittal Mahto, causing his death. Lakhan Mahto also caused fire arm injuries to Ram Mahto (P.W.1), on his arms. It is also admitted by this witness that Jai Kishun Mahto also received fire arm injury, while Munni Lal Mahto and Ajo Devi (wife of Chetlal Mahto) were also assaulted by Indradeo Dhadhi (since dead). This witness claims to have seen the occurrence from the window of a room (Kothari) of his house. This witness admits that the police came and they also 12 resorted to firing for about half an hour. 16. P.W.2 claims to have identified 22 accused persons and his attention was drawn towards the statement under Section 161 of the Code of Criminal Procedure which is recorded in paragraph 13 of the case diary and has been marked as Ext.7 which indicates that he has not named Chaman Dhadhi, Lulah Dhadhi, Awadhesh Dhadhi, Nandlal Dhadhi, Gita Dhadhi, Baran Dhadhi and Sharwan Dhadhi, as members of the mob. To that extent, the learned Trial Court found the evidence of P.W.2 being improved in the court. It is clear that all the five persons were killed at different places. Hence, claim of P.W.2 to have seen the assault inflicted upon all the five deceased, has been disbelieved by the Learned Trial Court, as it reflects from the finding recorded in paragraph 105 of the judgment, but it appears from paragraph no. 47 of the judgment that the Learned Trial Court has relied on the evidence of P.W.2, to the extent of murder of his father Sukhdeo Mahto and uncle Bideshi Mahto, who are claimed to have been residing in the same house. 17. P.W.2 has stated in his evidence that 100- 125 persons came in his Tola, and fired indiscriminately. He has further stated that Indradeo Dhadhi assaulted thrice, by sword, on his father‟s head, causing instant death of his father. Admittedly, 13 as per the evidence of P.W.2 in paragraph 3, he witnessed the entire occurrence from a window gap of a room in his house. But nowhere in his evidence, he has specifically mentioned as to where, his father was actually assaulted, whether it was in the house or outside the house. Moreover, P.W.2 claims to have witnessed all the killings, which took place during the occurrence, but the question which arises is whether P.W.2 could have seen the entire occurrence which took place at different places from the same window gap in the room of his house. Hence, his claim of being an eye witness to all the five killings, cannot be relied upon. In paragraph 4 of his evidence, P.W.2 has further stated that he visited all the houses after the occurrence, which seems very unreasonable behaviour, to be believed, in the light of the fact that his own father was also killed. 18. P.W.3 deposed to the effect that Indradeo Dhadhi (since dead) gave three sword blows to her husband, while she has further stated that Upendra Dhadhi killed Bideshi Mahto by fire arm. Considering this improvement in the evidence of P.W.3, learned Trial Court accepted the evidence of P.W.3 to the extent that her husband Sukhdeo Mahto was killed by Indradeo Dhadhi (since dead). Since Indradeo Dhadhi is dead, the evidence of P.W.3 does not help the 14 prosecution to prove the case against others beyond the shadow of all reasonable doubts. P.W.3‟s evidence has been found to be improved, vis-à-vis her statements given before the Investigating Officer. The Learned Trial Court has examined the evidence of P.W.3 in paragraph 50 of the judgment, but the same is confined only with regard to the proving of the assault upon her husband, Sukhdeo Mahto. 19. P.W.5 Daso Mahto is the brother of deceased Bideshi Mahto and Sukhdeo Mahto. He also claimed that Indradeo Dhadhi (since dead) inflicted sword blow on head of Sukhdeo Mahto, whereas Upendra Dhadhi shot at on Bideshi Mahto, who died on the way, when he was being taken for treatment. This witness also claimed that Bachchu Dhadhi shot Mittal Mahto from his gun, Lakhan Dhadhi killed Nishchal Mahto with fire arm and Ram Nandan Dhadhi killed Chetlal Mahto from his rifle. This witness in paragraph 10 of his evidence admits that there were four rooms in his house and he and his three other brothers namely, Kamo alias Kamaldeo Mahto (P.W.11), Sukhdeo Mahto and Bideshi Mahto (both deceased) used to reside in their respective rooms. P.W.5 also claims to have seen the occurrence from the window of his house. The Trial Court has recorded in paragraph 56 of the judgment, that P.W.5 has improved his version, so far as the 15 identification of the accused persons are concerned. He has not stated the same thing before the police, in his statement recorded under Section 161 of the Code of Criminal Procedure, which finds mention in paragraph 95 of the case diary. Many persons, whom he identified have not been named by this witness before the police. The learned Trial Court has disbelieved the evidence of this witness so far as witnessing of assault upon all the five deceased is concerned, but has relied upon his evidence, to the extent of assault of Sukhdeo Mahto and Bideshi Mahto, who were living in the same house but in different rooms. Admittedly, Sukhdeo Mahto and Bideshi Mahto were killed in two different rooms. Hence, the claim of this witness, of having witnessed the assault on Sukhdeo Mahto and Bideshi Mahto also appears to have become doubtful, which also reflects from the fact that this witness was examined for the first time by the police on 23.1.1993, whereas the occurrence took place on 2nd January, 1993. It appears unreasonable that being the brother of deceased Sukhdeo Mahto and Bideshi Mahto, he could not have been examined immediately after occurrence. Rather on giving a prudent thought, the case ought to have been initiated on his fardbeyan. The delay in recording the statement of this witness by the police leads credence to the defence version 16 that P.W.5 was not present at the place of occurrence. In spite of all such inconsistencies and contradictions in the evidence of P.W.5, the Learned Trial Court has wrongly placed reliance on the evidence of this witness, so far as the assault which took place in his house is concerned, but the learned Trial Court has failed to consider this crucial fact that in spite of such assault taking place in his house, P.W.5 remained safe and received no injury. 20. P.W.7 Shankar Mahto is son of deceased Bideshi Mahto who also claims to have seen the occurrence and has stated that Upendra Dhadhi dragged his father from Angan to the lane and then shot his father. This witness has stated that his father died on the way, while he was being taken by the police but admits, in paragraph 7 of his evidence, that neither he nor his mother Sabiya Devi (P.W.13) were assaulted by the accused persons. This witness also claims that he and his mother had seen the occurrence through a window of size 15”x10” and canvassed this fact to the Investigating Officer but visibility of the place of occurrence from the alleged window has not been proved due to non-examination of the Investigating Officer. The non-examination of the Investigating Officer caused prejudiced to the defence with regard to dragging of the deceased Bideshi Mahto from Angan to the lane, as no 17 dragging injury or sign has been found by the doctor during post mortem examination which impeaches the credibility of this witness. 21. P.W.11 is the brother of Bideshi Mahto and Sukhdeo Mahto. He claims to have seen the occurrence of murder of Bideshi Mahto. He has admitted in paragraph no. 5 of his evidence that he has five brothers and each brother has one room and he saw the accused persons from the window of his room of size 1x2 cubits. However, he admits that he had not shown the said window to the Investigating Officer. Admittedly, this witness also claims to have seen the occurrence from the window which does not appear to be reasonable. 22. P.W.13 Sabiya Devi is the widow of deceased Bideshi Mahto. She admits that she was at her house when the occurrence took place. She also claims to have seen the entire occurrence. This witness has stated in paragraph 4 of her evidence, that her husband Bideshi Matho was fired upon from close range whereas according to P.W.15 Dr. Rakesh Kumar Sinha, the injury may have been caused by fire arm, from a distance of 12 feet. Initially, P.W.13 has stated that about 100 persons entered the Mohalla and six persons entered her house and Upendra Dhadhi shot at her husband at point blank range, but her deposition of being an eye witness to the murder of her husband gets contradicted by the opinion 18 of the Doctor, i.e. P.W.15, who conducted the post mortem of the dead body of Bideshi Mahto, the husband of P.W.13, and it has been opined by the P.W.15 in specific terms that he did not find any charring, blackening or singeing injury around the wound of entry and the injury was also not caused from point blank range rather from a distance of 12 feet. This indicates that Bideshi Mahto, the husband of P.W.13, was killed in some other manner, than the manner suggested by P.W.13. The evidence of P.Ws. 7,11 and 13 also gets clouded, in view of the post mortem report suggesting fracture of right pelvic bone-illium and eschuive of Bideshi Mahto, whereas all the prosecution witnesses have consistently claimed that Bideshi Mahto received only on fire-arm injury. The aforesaid injuries suggest that they have been caused by some hard and blunt substance and the same also seriously clouds the ocular evidence suggesting that, either the witnesses have not seen the occurrence or have deposed falsely and have not unfolded the true story. 23. So far as the assault to Nishchal Mahto is concerned, the prosecution has relied upon the evidence of P.Ws. 2,4,5,6,8,11 and 12. P.W.8 is Dr.Dharam Nath Choudhary who conducted post mortem over the dead body of Nishchal Mahto.