CRIMINAL APPEAL No.289 OF 1988 ******* Against the Judgment and order dated 12th May, 1988 Passed by Sri Jagannath Prasad Verma, Sessions Judge, Sitamarhi, in Sessions Trial No.78 of 1987. ******* 1. Ramdeo Mahto 2. Ramas Mahto @ Ramjee Mahto, 3. Ram Briksha Mahto-----------------Appellants Versus The State of Bihar---------------Respondent ******* For the Appellants : Shri Neeraj Mumar @ Sanidh, Amicus-curiae For the State : Sushri Shashibala Verma ******* P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra JJ. The three appellants before us were put on trial by the learned Sessions Judge, Sitamarhi by framing charges under Section 302 of the Indian Penal Code, in Sessions Trial no.78 of 1987 and by judgment dated 12th May, 1988, were found guilty by the learned Sessions Judge of committing the offence under Section 302 read with Section 34 of the Indian Penal Code. Appellant 2 Ram Briksh Mahto was distinctly charged under Section 302 of the Indian Penal Code but he was not found guilty for committing that particular offence individually. While passing sentence on the same day the learned Sessions Judge directed each of the three appellants to suffer rigorous imprisonment for life. The above judgment of conviction and sentence is being questioned by the appellants in the present appeal. 2. The facts of the case lie in a very narrow compass. In the cold winter night of the 14th December, 1984, the informant claimed picking up stamping sound and woke up to find that the appellants were coming out of the house in which his father was sleeping. Out of the three appellants, appellant Ram Briksh Mahto was having a chuura in his hand and according to the allegation it was blood stained. The informant claimed identifying the appellants in the light of the torch he had flashed at that particular moment. 3. The informant further stated that he went inside the house to find that his father was lying on straw and that his throat was cut on its sides and blood was seen 3 by him at the site of the injury. He raised hulla that the three appellants were fleeing away after having committed the murder of his father which attracted Poshan Thakur ( P.W.2) Shiba Raut ( P.W.4) Trilok Jha (P.W.3) and many others and the informant narrated the whole story to them. 4. The motive for committing the murder of his father, Deonandan Mahto, was that about one and half months prior to the occurrence the son of sppellant Ram Deo Mahto, aged about six-seven years, had died of illness, but appellant Ram Deo Mahto was accusing the father and the brother of the informant, namely, Mangal Mahto of applying witch craft and, thus, killing his son. Appellant Ram Deo Mahto, had also held out threats of avenging the above act off and on. The informant stated that he firmly believed that it was the appellant Ram Deo Mahto who would commit the murder of his father and, accordingly, the act was perpetrated. 5. On the basis of the fardbayan, Exhibit-4 of P.W.9, the first information report of the case, Exhibit- 5, was drawn up and the investigation was taken up by 4 P.W.10, Heera Lal Sah, who stated in his evidence that an alarm was picked up by him on 14th December, 1986 in the early hours on that day that some one had been murdered in village Riga and, accordingly, he made an entry in the Station Diary and proceeded to the place of occurrence for verifying the information. He reached village Riga and drew up Exhibit-4, that is, fardbayan of P.W.9, Jai Kishun Mahto and took up the investigation himself. P.W.10 recorded the further statement of the informant and sent the copy of fardbayan to Police Station for institution of a case. He inspected the place of occurrence and held inquest upon the dead body by preparing inquest report, Exhibit-1, and also seized blood stained earth by preparing the seizure memo. He sent the dead body for post mortem examination to the hospital and after close of the investigation sent up the appellants for trial. That is how the appellants were convicted. 6. The defence of the appellants was that there was land dispute of appellant Ram Deo Mahto and Jai Kishun Mahto for which there had been Panchayati also and there is Panchnama, Exhibit-A and the Panches 5 upheld the claim of appellant Ram Deo Mahto. Being annoyed and getting up opportunity the appellants were falsely implicated by the informant in the case. 7. A total number of ten witnesses were examined by the prosecution for proving the charges. Out of whom P.Ws 3 and 4, namely, Trilok Jha and Shiba Rout was named in the first information report, were tendered for cross-examination. Out of the other witnesses, P.W.1, Mangal Mahto and P.W. 5, Bhikhari Mahto, brothers of the informant, stated that they reached at the scene of occurrence on hearing hulla raised by P.W.9 and were told about the occurrence by their brother besides they also saw the three appellants leaving the place of occurrence. Out of whom Ram Briksh Mahto was armed with a chhura. P.W. 8, Kushmi Devi, the wife of the informant also gave the evidence on the same line that she was told by the informant about the murder of his father and the three appellants were seen coming out of the house in which the deceased Deonandan Mahto was sleeping. P.W.7, Khehru Mahto, the cousin of the informant, P.W.9, was not a witness named in the charge 6 sheet, has also given similar evidence as was given by P.Ws 1 and 5 and has supported the informant, P.W.9. 8. Dr. Upendra Sharma, P.W.6, had held post mortem examination on the dead body of the deceased and had found an incised and sharp cutting injury on the right side of the neck extending up to the front, cutting the skin muscles, larynx and oesophagus. On internal examination after opening the skull the brain substance was normal but pale. In the opinion of the Doctor, P.W.6, the injury was caused by a sharp cutting instrument like a chhura (dagger) and the death was caused due to haemorrhage and shock as a result of the above noted injury which was sufficient, in the ordinary course of nature, to cause death. 9. Thus, what appears from the evidence of P.W.6 is that Deonandan Mahto was murdered by cutting his neck but the evidence, which has been produced from record, does not indicate as to who after all had perpetrated the ultimate act of silting the throat of the deceased. In fact right from the very stage of recording of the fardbayan there is no proof given by the informant 7 or by any witness that he or they had seen any one perpetrating the ultimate act of slitting the throat of the deceased. What appears from the evidence of P.Ws 1, 5, 7, 8 and 9 is that they claimed seeing the three appellants coming out of the house in the light of the torch which was flashed by P.W.9 at that moment and one of the appellants, Ram Briksh Mahto was seen having a chhura in his hand. 10. On scanning the evidence on record, what we find is that the claim of the witnesses that they had seen appellants coming out of the house may not be acceptable to the court because, admittedly, P.W.1 had stated that when he was urinating he heard the hulla raised by P.W.9 and he, along with others, came to the scene of occurrence and there they were told about the incident. P.W.9 had stated that when he saw the three appellants coming out of the house he concealed himself and the three appellants went away. Thereafter, he went to the Darwaza of P.,W.2, Poshan Thakur, and raised the hulla from that place. Thus, the claim of the witnesses of seeing the appellants appears not acceptable. 8 11. The above brings us to consider as to whether the evidence of P.W.9, the informant, could be sufficient to hold that the circumstances, which was recorded by the learned trial Judge in his judgment, were really established out of his evidence or the evidence of other witnesses on other parts of the prosecution case. The first thing which we want to take up for scrutiny is the allegation as regards the motive for committing the offence and the proof thereof. The motive was that appellant Ramdeo Mahto thought that the deceased and P.W.1, Mangal Mahto, were experts in witch craft and they had, by applying their crafts, had caused the death of the son of appellant Ramdeo Mahto about one and half months prior to the occurrence. The evidence indicates that accusation were hurled upon the deceased by appellant Ramdeo Mahto off and on and threats were also being held out somuch so that it necessitated the filing of informatory petition before the Subdivisional Magistrate, a copy of which was also got transmitted to the concerned Police Station. This evidence has come from P.W.1 in paragraph 7 of his 9 evidence. Other witnesses like P.W.5, Bhikhan Mahto, and P.W.8, Kushmi Devi, the wife and brother of the informant, have also stated the same fact of motive that appellant Ramdeo Mahto was accusing both P.W.1 and the deceased of applying witch craft upon his six – seven year old son to kill him. This is the evidence of P.W.7 also but we have the clear cut evidence coming from P.W.1, as just pointed out in paragraph 7 of his evidence, that there could be a documentary evidence regarding the alleged motive and it appears that some steps were taken for warding off the threat. P.W.1 was telling the Court in the same paragraph that if he was asked to produce the informatory petition he could produce the copy of the same. That copy was not produced. We may draw as strong an adverse inference as could be drawn on withholding of a documentary evidence, but what we propose to do is that in view of the documentary evidence being there, we could like to have it before us so as to judge the quality of the oral evidence. That not having been produced by the prosecution we find ourselves quite disinclined to act upon the oral evidence of four related 10 witnesses, P.Ws 1, 5, 7 and 8 who have come to support the informant in the above behalf. 12. The learned Judge was holding seven circumstances established. One such circumstance was the motive as may appear from the judgment and when we have held that it was doubtful that indeed the accusation was made, then we have to revert back to the findings of the learned Judge in his judgment when he was drawing adverse inference against the appellants for inserting the circumstance which was put to appellant Ramdeo Mahto in his examination under Section 313 of the Code of Criminal Procedure. Two questions were put to appellant Ramdeo Mahto in connection with the motive part of the prosecution story. The first question was regarding the death of his son of pneumonia and the other question related to the accusation which Ramdeo Mahto was allegedly leveling against the deceased. In reply to the first question on death of his on account of pneumonia, appellant Ramdeo Mahto replied that he would furnish the information in writing which he did not do. To the answer of the second question regarding 11 leveling accusation of applying witch craft and killing his son, the appellant stated that it was all false. Thus, we are of the opinion that in view of the answer coming from Ramdeo Mahto on the fact which was the only fact of motive, there could not be any reason in drawing adverse inference against the appellants as was drawn by the learned trial Judge. 13. P.W.9, the informant, has admitted in his evidence in paragraph 6 that it was a cold winter night and the moon light had vanished and that it was dark. He has further stated that it was over cast. We could very well imagine the darkness of the night when there was no light coming from the moon naturally and further that the light of the stars could also not to be available on account of the sky being over cast. It would really require a very good means of identification so as to facilitate it. The weather conditions that night must have warranted that any means of identification could have been used by the informant. But, the difficulty with us is that he did not produce the torch before the Investigating Officer and explained his failure by stating that the same was not 12 asked to be produced before P.W.10. We are inclined to take a view that that part of the story appears an invention for meeting out the exigency of the situation and requirement of inventing a story. 14. We find the fact admitted that when the occurrence had taken place and when 25-30 persons had assembled at the scene of occurrence, first P.W.1, Mangal Mahto, was sent by P.W.9 to the place of Mukhiya, D.W.1, which fact is admitted by D.W.1. This fact was further admitted by P.W.9 in his evidence, as may appear from Paragraphs 7 and 8 of his evidence. P.W.1, Mangal Mahto, states that he went to the house of the Mukhiya and pointed to him the urgency of visiting the place of occurrence where his father had been murdered. It is not denied, rather admitted by the witness that the Mukhiya, D.W.1, arrived at the scene of occurrence. Witnesses stated that they had narrated the whole of the occurrence and the name of the accused to the Mukhiya, D.W.1. But D.W.1 has stated that a Panchayati was held regarding dispute over Gharari land between Ramdeo Mahto and Jaikishun Mahto and others in which he and Satyadeo 13 Pratihast were Punches, as may appear from Exhibit-A, the Panchnama. He further states that neither P.W.1 nor P.W.9 or any one had stated to him the names of the accused who had perpetrated the crime. In fact, the evidence of D.W.1 indicates that the witnesses had told him that they could not see as to who had committed the murder. This could be the reason for us to take a view that no one had really seen as to how and by whom the offence was committed. D. W.1, the Mukhiya, has stated that the murder was committed by a criminal. We find ourselves amidst changing situations which indicate as if it could not be safe to take a view as was taken by the learned trial Judge on proof of participation of the appellants in commission of the offence. 15. Deonandand Mahto was murdered, there could not be any doubt about it, specially, when the medical evidence of P.W.6 and the evidence of witnesses and Investigating Officer was there. We do not find any evidence showing as to who could have committed the offence. It could be anybody . But merely suspecting a person to have committed the offence could not be the 14 just and sufficient proof of the charges. It was a case in which appellants deserved to be given benefit of doubt and we, accordingly, extend that benefit to them. We allow the appeal by setting aside the conviction and sentence passed upon the appellants. The three appellants are on bail. They shall stand discharged from the liability of the bail bonds. 16. We appreciate the assistance which was rendered to us by the learned amicus-curiae and we feel that he deserves a fee of hearing which may be given by the High Court Legal Services Committee. Let copies of the first and last pages of the Judgment be made over to Shri Neeraj Kumar @ Sanidh for the above purpose. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 25th June, 2010. AAhmad/ (NAFR) .