CRIMINAL APPEAL No.177 OF 1988. ---------- Against the judgment and order of conviction and sentence dated 28.03.1988 passed by the learned 3rd Additional Sessions judge, Madhubani, in Sessions Trial No. 177 of 1979/110 of 1983. ---------- 1. Ram Chandra Mahto, Son of Late Bhagirath Mahto. 2. Chandra Mahto(since dead), Son of Sri Bhukhan Mahto. 3. Ranjit Mahto (since dead), Son of Late Bishun Mahto. All are residents of Village- Bithouni, Police Station- Andhra tharhi, District-Madhubani..........................................Appellants. -Versus- The State of Bihar.......................................................Respondent. -With- CR. APP (DB) No.139 oF 1988. Amirti Devi @ Amriti Kumari, Wife of Sri Sahdeo Das, daughter of Bhagirath Mahton, resident of Village- Bithauni, P.S. Andhra Tharhi, District- Madhubani.........................................Appellant. -Versus- The State of Bihar.......................................................Respondent. ---------- For the appellants: Mr. Ajay Kumar Thakur, Advocate and M/s. Md. Imteyaz Ahmad and Amir Alam, Advocates. For the State : Sushri Shashibala Verma, A.P.P. ---------- P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON'BLE SRI JUSTICE DINESH KUMAR SINGH Dharnidhar Jha D.K.Singh,JJ. These two appeals arise out of the judgment of conviction dated 28.03.1988 passed by the learned 3rd Additional Sessions 2 Judge, Madhubani, in Sessions Trial No. 177 of 1979/110 of 1983 by which the two surviving appellants alongwith other accused persons were held guilty and each of them was directed to suffer rigorous imprisonment for life for the offence under Sections 302/34 of the Penal Code. The appellants were also found guilty of committing the offence under Section 342 of the Indian Penal Code and each of them was sentenced to suffer rigorous imprisonment for six months. The informant, P.W.16, Janki Devi, stated in her fardbeyan that she had only one daughter, Indra Kumari, who was married to one Mahendra Mahto. She wanted her son- in-law to live with her as a Gharjamai which was not liked by accused Bhagarith Mahto who often told her not to allow the father of her son-in-law to come to her house. It was alleged that due to the above reason, the accused persons, named in the F.I.R., killed Indra Kumari, by cutting her neck by Khurpi while she had gone out of her house to scrap grass for the cow. The informant stated that she was attracted to the scene of occurrence by the cries of her daughter and had seen the accused persons at 3 the place with the weapon who ran away after seeing the informant. On the basis of the fardbeyan (Ext.2),a formal F.I.R.(Ext.1) was drawn-up and the investigation was taken up. After close of the investigation, as many as six accused persons were forwarded for trial and ultimately they were found guilty as indicated above. During pendency of these appeals, appellants Chandra Mahto and Ranjit Mahto died and their appeals abated vide court’s order dated 12.09.2008 passed in Cr. Appeal (DB) No. 177 of 1988. Accused, Bhagirath Mahto, had died during hearing of the trial. As regards appellant, Ram Chandra Mahto, he raised a plea of juvenility before us and therefore, we directed the Juvenile Justice Board, Madhubani, to hold an enquiry into his plea and we have received the report which appears at Flags-“E” and “F”. However, in the light of Section 20 of the Juvenile Justice (Care and Protection of Children)Act, 2000, this court is required to decide the appeal of the appellant on its merits and in case the court found that the conviction was rightly recorded as 4 regards appellant Ram Chandra Mahto then the court can be obliged to refer the enquiry part for passing the order under Section 16 of the Juvenile Justice Act. We have, accordingly, heard two appeals on their merits and have proceeded to dispose them of after hearing. As may appear from the records of the trial court, as many as 16 witnesses were examined, out of whom, P. Ws. 1, 2, 4 and 5 were Chaukidars who were working in one circle or to other of the police station. Though they have not given any evidence except that on being informed about the killing of the deceased, Indra Kumari, each of them came to the house of the informant to find that the dead body of Indra Kumari was lying in the courtyard of the informant’s house, but none of the above witnesses have stated that they could learn from any body as to who was the person who had killed her. P.W.3, Mostt. Manjidia, was declared hostile as was the case with P.W.10 Bali Yadav. P.W.6, Jagdish Pd. Mahato, was tendered for cross-examination whereas P. Ws. 7,8,9,11,13 and 14 were all witnesses of 5 formal character proving the writings or signatures of one or the other documents like the inquest report or different parts of the fardbeyan or for that matter, the formal F.I.R. P.W. 16, the informant of the case, only came to support the charges. She stated that she heard the cries of her daughter and ran to the place of occurrence to find her daughter being assaulted with Khurpi, might be, by the accused persons named in the F.I.R. The girl, aged about 12 years on that date, was lying on the ground and had fully been immobilized so as to be given blows with Khurpi. Seeing the informant, the accused persons ran away from there, whereafter she solicited the assistance of other villagers for bring the dead body to her house, but none came forward. Lastly, she had herself put the dead body into a basket and brought it to her house where the police officer came and recorded her statement. While considering her evidence in cross-examination, especially in paragraph no.8, we find that there can be a doubt about her claim of being an eye witness. She has stated that when she reached at the 6 place of occurrence, the accused persons had already run away from there and further that a man was speaking that the child had been bitten and injured by a jackal. In the F.I.R. as also in her examination-in-chief, P. W. 16 spoke of her relationship with her father-in-law, Bhagirath Mahto, on account of the fact that he was very much annoyed with the Samadhi of the informant who used to come very often to look after and assistance the lady in her agricultural operations. Further, that her son-in-law had settled down in the same house as Gharjamai. But, when we read cross-examination-part of the evidence of P.W. 16 in same paragraph no.8, we come across her deposition stating that she did not have any ill motive or any animosity with the accused persons. It is solitary evidence of P.W.16 upon which we are called upon to examine as to whether the prosecution had substantiated the charges against the two appellants. We have already pointed out that it can be doubtful that the lady can be an eye witness to the occurrence. Her deposition, to which we have referred to just now, indicated that she might not have seen the 7 real occurrence and the assault which she claimed in the fardbeyan or in the examination-in-chief part of evidence to have seen. It is true that the informant did not have any axe to grind against any of the accused persons least to talk of two the appellants before us, but the evidence which has been given by the lady makes her not a reliable witness whose evidence could be used to sustain the conviction. In the result, we find the appeals meritorious and, accordingly, we allow the two appeals by setting aside the order of conviction and sentence passed upon each of the appellants. The two appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. Patna High Court Dated 15th July, 2010. U.K./N.A.F.R. (Dharnidhar Jha,J) (Dinesh Kumar Singh, J.)