Criminal Appeal (DB) No 43 of 1989 =========================================================== Against the judgment and order dated 18.01.1989 passed by Shri Ram Charitra Sathi, Additional Sessions Judge III, Begusarai in Sessions Case No 130 of 1984/36 of 1984. 1 Gonar Sahni, son of Bijo Sahni 2 Mahendra Sahni, son of Bijo Sahni 3 Bhola Sahni, son of Bharosi Sahni 4 Anandi Mahto, son of Prakash Mahto 5 Mahendra Mahto, son of Lakhan Mahto 6 Arun Paswan, son of Bahadur Paswan 7 Chamru Paswan, son of Ram Bilash Paswan 8 Uma Mahto, son of Ramdeo Mahto, residents of village Samsa, Police Station Naokothi, District Begusarai 9 Nandlal Tanti, son of Dorik Tanti, resident of village Sakho, Police Station Balia, District Begusarai .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : M/s Prasant Vedasen, Binod Kumar Ambastha & Subash Chandra Bose, Advocates For the Respondent/s : Miss Shashi Bala Verma, A P P =========================================================== CORAM: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH) 1 The present appeal, by the nine appellants, has been preferred against the judgment and order of conviction dated 18.01.1989 passed by the Additional Sessions Judge III, Begusarai in Sessions Case No 130 of 1984/36 of 1984. By the said judgment, all the appellants have been convicted under Sections 302/149 of Indian Penal Code (IPC) and sentenced to rigorous imprisonment for life. They all have been further held guilty of an offence under Section 201 of IPC and sentenced to seven years rigorous imprisonment. They all, except appellant No 3 Bhola Sahni, have been convicrted under Section 148 of the IPC and sentenced Patna High Court CR. APP (DB) No.43 of 1989 dt.23-11-2011 2 for one year rigorous imprisonment. Appellant No 3 Bhola Sahni has been convicted under Section 147 of the IPC and sentenced to six months rigorous imprisonment. Further, all the appellants except appellant No 3 Bhola Sahni and appellant No 8 Uma Mahto have been convicted under Section 27 of the Arms Act and sentenced to five years rigorous imprisonment. Appellant No 1 Gonar Sahni has further been convicted under Section 323 of the IPC and sentenced to one month rigorous imprisonment and appellants No 6 and 7 have further been convicted under Section 307 of IPC and sentenced to undergo rigorous imprisonment for three years. The trial Court has acquitted the appellants of the specific charge under Section 302 of the IPC. However, all the sentences have been ordered to run concurrently. It may be noted here that in all, 18 persons were put on trial in relation to the same incident which resulted in alleged death of three persons out of whom only nine have been convicted. The rest nine have been acquitted of all the charges. 2 It may be noticed that so far as appellants No 1, 6, 7 and 9 are concerned, an application has now been filed stating that they are dead and, as such, the appeal, in so far as they are concerned, should be held to have abated. In view of the order that we propose to pass, it would be wholly unnecessary to pass an order in that regard after any enquiry which would only delay these proceedings. 3 The prosecution case is based on the Fardbayan of one Awadh Mahto (PW 15), as recorded by Sub Inspector (SI) of Naokothi Police Station (PS), Arjun Prasad (PW 14) at about 1 pm on 02.08.1983. The Fardbayan is in three parts. First is with regard to an incident that took place on 01.08.1983. The second and third about an incident that took place on the morning of 02nd August, 1983. The two parts of the 02nd of August, 1983 incidents relate to two different occurrences. The first related to the shooting of Jamun Mahto and Bhatu Mahto out Patna High Court CR. APP (DB) No.43 of 1989 dt.23-11-2011 3 of whom Bhatu Mahto allegedly died on the spot whereas Jamun Mahto died after 10 days at the Patna Medical College and Hospital (PMCH). The third part is with regard to the killing and carrying away the dead body of Horil Mahto, the father of the informant Awadh Mahto on 02.08.1983 itself. 4 In the Fardbayan, as recorded, it is alleged that on 01.08.1983, son of Bhatu Mahto, namely, Raj Kumar Mahto was taking his buffalo across the river for grazing. It got entangled in fishing net. He managed to unentangle but, in the process, damaged the fishing net. This enraged allegedly the accused person who came and slapped him. The father of the informant was having a bath nearby who saw the occurrence. He was then chased and a gunshot was fired which injured none. The informant says that he had seen the entire occurrence but made no report and he thought it prudent to let the matter be closed and forgotten. 5 Now starts the second part. It is alleged that at about 10 am on 02.08.1983, while Jamun Mahto, Bhatu Mahto and the father of the informant being Horil Mahto were sitting at the doorsteps of the house of the informant, 20 to 25 people, variously armed with rifles, guns, entered the village. Apprehending danger, everyone ran for safety. Jamun Mahto, Bhatu Mahto ran and entered into the house of Anup Mahto and closed the door from inside. His father Horil Mahto ran in the opposite direction to hide himself. The informant ran into a maize field nearby and hid himself. Then some of the accused persons, who have been named, broke open the door of the house of Anup Mahto. Jiya Lal Mahto, Awani Mahto, Anandi Mahto, Chamru Paswan and others entered in the house. It is alleged that upon entering the house, Jiyalal Mahto and Awani Mahto fired at Jamun Mahto and Bhatu Mahto respectively. They were then dragged out of the house and brought in front of the house of Dukheshwar Prasad Verma (PW 6) who is the Sarpanch of the village as well where Bhatu Mahto died. This second part of Patna High Court CR. APP (DB) No.43 of 1989 dt.23-11-2011 4 the incident is not witnessed by the informant but has been narrated to the informant by one Ram Nandan Mahto (PW 5) and is recorded, as such, in the Fardbayan. 6 Now we come to the third part. While all this was happening, it is alleged that the informant saw his father coming armed with two spears. The accused persons, while retreating, were challenged by informant’s father who threw the spears at the retreating party. It is alleged that one of the spears hit one of the miscreants on probably the thigh. The other did not hit anybody. Seeing this, the miscreants turned around and indiscriminately fired at his father who dropped probably dead. Then they came forward and dragged his body away which body was never traced. This the informant saw from hiding. 7 In the Fardbayan itself, it is noted that all these incidents were witnessed by Ganeshi Mahto (PW 1), Ram Sagar Mahto (PW 2), Pulpul Mahto (PW 3) and Bhola Mahto (PW 4). The Fardbayan is signed by the informant Awadh Mahto who is PW 15 and was recorded by Arjun Prasad, the SI who also became the IO and was examined as PW 14. It is allegedly witnessed by Dukheshwar Prasad Verma (PW 6) who also happens to be Sarpanch of the village. On basis of the aforesaid Fardbayan, Nawkothi PS Case No 24 dated 02.08.1983 was registered under Sections 302, 201, 307/34 of IPC and Section 27 of Arms Act. The case, upon being investigated, chargesheet was submitted against all the 18 persons who were named in the First Information Report (FIR). Case, having been committed to Court of Session, the accused persons pleaded not guilty and, accordingly, were charged and tried and consequent to the trial, only nine persons, who are appellants before this Court in this appeal, were found guilty of various offences while the other nine persons were acquitted. 8 We have now to see whether the conviction of the nine appellants is sustainable upon the material available on record. We would like to notice one Patna High Court CR. APP (DB) No.43 of 1989 dt.23-11-2011 5 aspect. It is upon the same set of materials and evidences that the learned trial Court has acquitted nine named persons. Whether, in view of the aforesaid, the conviction can be sustained especially when there is no appeal by the State or the informant is also to be considered. 9 The case of the defence, as appearing, is that the deceased Horil Mahto, father of the informant was a veteran dacoit and Jamun Mahto and Bhatu Mahto were his associates. It appears that there had been some difference amongst them and others about sharing of booty of some dacoity because of which this incident had taken place elsewhere but due to village politics, it had been given the aforesaid colour and shape. 10 In order to establish its case, prosecution has examined 15 witnesses. PW 1 Ganeshi Mahto, PW 2 Ram Sagar Mahto, PW 3 Pulpul Mahto and PW 4 Bhola Mahto, as noticed earlier, are named as eye witnesses to the entire occurrence in the Fardbayan itself. When they came to depose in the Court, they have not supported the prosecution case a bit. They have been declared hostile. PW 5 is Ram Nandan Mahto who is again named in the FIR as being the person who had seen the occurrence so far as shooting on Jamun Mahto and Bhatu Mahto in the house of Anup Mahto is concerned. He is also the person who is said to have narrated the whole incident to the informant, as noticed in the Fardbayan itself. This also makes it clear that the informant has not witnessed this second part of the incident, as mentioned in the Fardbayan. Ramnandan Mahto (PW 5), who appears in Court, again turns hostile. Then we have Dukheshwar Prasad Verma (PW 6) who has signed the FIR and is a witness to the inquest. He, as noticed above, is the village Sarpanch as well. When he comes to the Court to depose, he merely states that when he arrived, police had already recorded the statement of informant and being the Sarpanch, he merely signed it. Similar is the statement with regard to the Patna High Court CR. APP (DB) No.43 of 1989 dt.23-11-2011 6 inquest. He says noting further. Thus, though he does not contradict the prosecution case, he does not give any detail fact, either direct or corroborative, of the allegations. He is not of any use to the prosecution and can be termed as formal in nature. Then we have PW 7 Bibhakar Pathak. He is alleged to be the seizure list witness with regard to seizure of blood-stained earth but he turns totally hostile. PW 8 is Rambilas Paswan who is the village Chaukidar. His evidence is of some importance. In his examination-in-chief itself, he states that after the incident had taken place, he had rushed to the Nawkothi PS and informed the officials there upon which Arjun Prasad (PW 14), the SI who later became the IO, was immediately dispatched. He was then sent with the dead body of Bhatu Mahto for post mortem examination and he was accompanied by Jamun Mahto, the other injured as well who later went to Begusarai Sadar Hospital for better treatment whereafter to PMCH at Patna. He admits that he had informed the SI about the aforesaid incident at about 12 noon and he had come there at about 2.30 pm though the said Fardbayan is said to have been recorded at 1 pm itself. Two things are apparent from this. An information about cognizable offence was given by this PW 8, the village Chaukidar to the Police Station. If no FIR was registered, at least, in normal course of events, a Sanha had to be noted and it would be so presumed. No such first information or Sanha has been brought on record though the IO (PW 14), in his cross-examination, admits that a Sanha entry was made but has chosen not to bring on record which could only lead to the conclusion that had it been brought on record, it would be adverse to the prosecution. Then we come to PW 9 Lakhan Paswan who is another village Chaukidar. He has been tendered. PW 10 is Dr G S Haque, Civil Assistant Surgeon, Begusarai who conducted the post mortem examination on Bhatu Mahto on 03.08.1983. The post mortem report is Exhibit-4. There was one bullet injury found which had proved fatal. We then come to Ram Patna High Court CR. APP (DB) No.43 of 1989 dt.23-11-2011 7 Sagar Singh who has been examined as PW 11. He is again a seizure list witness but has turned hostile. Then is Raj Kumar Mahto (PW 12). He was supposed to be a witness to the first part of occurrence which had taken place a day before but he also turns hostile. He was to be used to prove the motive behind the incident. Then we have PW 13 Dr R P Srivastava who is a tutor at the PMCH and who conducted the post mortem examination on the dead body of Jamun Mahto on 13.08.1983 that is 10 days after the incident. This doctor has clearly deposed that he could not comment upon the injuries inasmuch as he had found the injuries to be healed injuries. The person Jamun Mahto had died because of severe lung infection which could have been caused by the injuries. It may be noted here that Jamun Mahto had gone to Begusarai Sadar Hospital for treatment of the alleged gunshot injury caused to him by the firing done by Awani Mahto. He was at PMCH for 10 days. The IO (PW 14) Arjun Prasad admits in his cross-examination that he had visited PMCH and found Jamun Mahto to be conscious but curiously, he took no statement from him or if he interrogated him, nothing was recorded. Unfortunately, learned trial Judge has tried to cover this deficiency up by referring the case diary and saying that probably Jamun Mahto was so critically injured that he could not have spoken. This is not the evidence on record. It was open to the prosecution to bring it on record or explain why the IO did not take or record a statement. Prosecution, having failed to do so, the trial Judge cannot make up the said deficiency in the prosecution evidence. That leaves us with Awadh Mahto, the informant who is examined as PW 15 and the Investigating Officer Arjun Prasad (PW 14). 11 From the above discussion, it would be seen that when the matter reached the Court, the only evidence, that is available, is that of the informant. Rest of all persons including persons, who had signed the FIR, who were named in the FIR as witnesses, have turned hostile or have not supported the prosecution case. Patna High Court CR. APP (DB) No.43 of 1989 dt.23-11-2011 8 This includes PW 6 Dukheshwar Prasad Verma who, as noted above, is the Sarpanch of the village. Therefore, it is now necessary to see the evidence of the informant who is the sole witness in the case. He admits that so far as the second incident, narrated in the FIR is concerned with regard to shooting of Bhatu Mahto and Jamun Mahto, he was not an eye witness. He was told those facts by Ram Nandan Mahto (PW 5) who, as noted above, has been declared hostile. Thus, the entire second incident is without any evidence to support it. The only fact that remains is the alleged recovery of the dead body of Bhatu Mahto from near the house of PW 6 Dukheshwar Prasad Verma, the Sarpanch. Thus, the whole story narrated by the informant with regard to this second part of the incident falls to the ground and cannot be believed. It is not even established by the prosecution in any manner. Thus, no one was and could be held guilty for the killing of Bhatu Mahto and Jamuna Mahto. 12 That leaves us with the third incident of alleged killing of the informant’s father, Horil Mahto. The first thing we would like to notice is in the Fardbayan though informant says that he had been watching, he does not name any specific person ascribing to him any specific part in the shooting out. Thus, all the persons including Jiyalal Mahto and Awani Mahto, who were said to have been the killers in the second part, were also part of the incident in the third part. Apart from others, they have been acquitted. There is nothing specific about any person in the third shoot out. The details like with regard to the second shooting out are missing in this. The trial Court has convicted the nine appellants while acquitting nine others for this. Now what is deposed by the informant is that he saw his father coming and challenging the accused persons with spears in both his hands. He threw spears at the accused persons, one of whom was injured but curiously the IO does not find or recover much less seize any spear from the spot. Even though all Patna High Court CR. APP (DB) No.43 of 1989 dt.23-11-2011 9 the accused persons are arrested subsequently, no one is found to be injured, as alleged by the informant. In the cross-examination, apart from admitting enmity with various persons in the array of accused, the informant categorically admits that his father Horil Mahto has large number of criminal cases instituted against him for dacoity. In his cross-examination, he mentions that one Ram Jappo Mahto had gone to inform Darogaji at the Thana alongwith whom son-in-law of Jamun Mahto had also gone whereafter Darogaji (IO) came. Neither of these two persons have been examined by the prosecution nor has any such information given by them to the Darogaji brought on record. Again, the inference would be that the information, if any, given by them, if available at the PS, would be adverse to the prosecution and that is why it has not been brought on record and has been withheld. As noticed earlier, PW 8, the village Chaukidar Rambilas Paswan had also gone and informed the PS about the incident. According to the informant, Ram Jappo Mahto and son-in-law of Jamun Mahto had also gone to inform the police whereupon the police came which fact is admitted by the IO. We find it curious that information of a cognizable offence having been given why no information was registered and why without registering any such case, the investigation was taken up and inquest report prepared. This clearly throws substantial doubt on the entire prosecution case. This witness also admits that after recording the Fardbayan, police never interrogated him, that is, there is no further statement of the informant recorded in terms of Section 161 of Criminal Procedure Code (CrPC) nor there is any interrogation of any other family member of the informant in regard to the incident. This clearly shows that the prosecution case is not what it has been projected in the Fardbayan. 13 In such an event and upon such evidence, in our view, the conviction of the appellants for any offence whatsoever cannot be sustained. Patna High Court CR. APP (DB) No.43 of 1989 dt.23-11-2011 10 Prosecution has not been able to prove its case beyond reasonable doubt. 14 In that view of the matter, we have no option but to set aside the judgment and conviction of the appellants and allow the appeals. The appellants are discharged from the liabilities of their bail bonds. (Navaniti Prasad Singh) (Ashwani Kumar Singh) Patna High Court, The 24th November, 2011, NAFR, M E Haque/