DEATH REFERENCE No.5 OF 2004 *** STATE OF BIHAR-----------------------------APPELLANT Versus DHARAMJAY PRASAD--------------------------RESPONDENT WITH CR. APP (DB) No.284 of 2004 DHARAMJAY PRASAD @ DHARAMJAY MAHTO SON OF LATE BALDEO MAHTO, RESIDENT OF VILLAGE SARKATTI, P.S. BARH, DISTRICT PATNA--------APPELLANT Versus STATE OF BIHAR----------------------------RESPONDENT WITH CR. APP (DB) No.286 of 2004 KARU MAHTO, SON OF LAKHAN MAHTO, RESIDENT OF VILLAGE SAIDPUR, P.S. BARH, DISTRICT PATNA---------APPELLANT Versus STATE OF BIHAR----------------------------RESPONDENT WITH (CR. APP (DB) No.335 of 2004 BINDA MAHTO, SON OF LATE SATYA DEO @ SAHDEO MAHTO, RESIDENT OF VILLAGE SARKATTI, P.S. BARH, DISTRICT, PATNA----- --------------------------------APPELLANT Versus STATE OF BIHAR----------------------------RESPONDENT *** Reference made by Sri Md. Abdul Baqui, Additional District & Sessions Judge, IV, Barh (Patna) vide letter no.100/04 dated 25th day of March, 2004 and criminal appeals against the judgment dated 22.3.2004 and order dated 24.3.2004 in Sessions Trial No.686 of 1995. *** For the Appellants : M/s Abhay Kumar Singh, Parmatma Singh, Brajesh Kumar & Bharat Bhushan, Advocates (In Criminal Appeal No.284/04) Mr. B.K.Roy, Advocate (In Criminal Appeal No. 286/04) M/s Rajendra Narain, Nawal Kishore Prasad & Satyendra 2 Prasad, Advocates (In Criminal Appeal No.335/04) For the State : Mr. Lala Kailash Bihari Prasad, Additional P.P. (In all Criminal Appeals) *** P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM *** S.M.M.Alam, J. Death Reference No.5 of 2004 (State of Bihar Versus Dharamjay Prasad) and three criminal appeals bearing Criminal Appeal No.284 (D.B.) (Dharamjay Prasad alias Dharamjay Mahto) as well as Criminal No.286 of 2004(D.B.) (Karu Mahto Versus The State of Bihar) and Criminal Appeal No.335 of 2004 (D.B.)(Binda Mahto Versus The State of Bihar) arise out of one and the same judgment dated 2nd Day of March, 2004 passed in Sessions Trial No.686 of 1995 by 4th Additional District & Sessions Judge, Barh whereby and whereunder all the three appellants along with three other accused, who are absconders, were convicted for the offence under Section 302/34 of the Indian Penal Code. Besides that, appellants Karu Mahto and Binda Mahto were also convicted for the offence under Section 27 of the Arms Act. For the offence under Section 302/34 of the I.P.C., appellant Dharamjay Prasad Mukhiya was sentenced to death and ordered to be hanged by neck till his death. The other two appellants, namely, Karu Mahto and Binda Mahto, were sentenced to imprisonment for 3 life under Section 302/34 of the Indian Penal Code and further sentenced for seven years rigorous imprisonment for the offence under Section 27 of the Arms Act. The learned Additional Sessions Judge observed with direction that both the sentences shall run concurrently. For confirmation of death sentence awarded to appellant Dharamjay Prasad Mukhiya, the learned Additional Sessions Judge made reference to this Court whereas three appellants filed separate three criminal appeals and thus, the above-mentioned death reference along with three criminal appeals are before us. 2. The prosecution case, as per Exhibit 5, the fardbeyan of informant Harif Nonia (P.W.5) son of Keshav Nonia of village Shaidpur, P.S. Barh, District Patna recorded by S.I., Pyush Kant of Barh P.S. on 12.7.94 at 22 hours at village Saidpur, in brief, is that on the same day at about 4 P.M. while he along with his brother Ram swarath Chauhan, his nephew Pramod Chauhan, Manish Nonia, his uncle Shiv Balak Chauhan along his father Keshav Nonia were sitting together at the outer portion of his house (Dalan), they saw co-villagers Bhonu Mahto armed with rifle and Karu Mahto armed with pistol; Bablu Mahto, Binda Mahto of village Sarkatti armed with rifle, Surjan Mahto, Lalmuni Chauhan alias Chunnu Chauhan of village Chakjalal, P.S. Bhadaur armed with gun along with appellant Dharamjay Prasad Mukhiya coming to his Dalan. As soon as they reached at his Dalan, Dharamjay Prasad Mukhiya shouted and ordered Ram Swarath and Pramod (both 4 deceased to remain sitting otherwise they would be shot at. Being afraid, the informant along with Ram Swarath and Pramod and others tried to flee away whereupon appellant Dharamjay Prasad Mukhiya gave order to his associates to shoot both the deceased. On getting order from the appellant Dharamjay Prasad, all other accused persons entered into Dalan of the informant and accused Bablu Mahto opened fire from his rifle upon Pramod which caused injury on his chest. Thereafter accused Bhonu Mahto opened fire from his rifle causing injury to Pramod on his back just above his waist. After that, accused Surjan Mahto (absconding accused who did not face trial) opened fire from his gun at Ram Swarath which hit on his head who fell down and immediately thereafter accused Lalmuni Chauhan alias Chunnu Chauhan opened fire from his gun which punctured into the abdomen of Ram Swarath and appellant Binda Mahto opened fire from his rifle causing injury to Ram Swarath on his back. On receiving fire-arm injuries, Pramod Chauhan and Ram Swarath both fell down and died on the spot. It is further stated that appellant Karu Mahto also opened fire from his pistol aiming at the informant but the informant escaped unhurt. It is stated that after the occurrence all the accused persons raising slogans ran towards village Sarkatti. The motive behind the murder was that deceased Ram Swarath and his son Pramod used to supply labourers to work in the brick-kiln at Patna and appellant Dharamjay Prasad Mukhiya was demanding Rs.10/- per labourer as his commission to which 5 deceased Ram Swarath did not agree and due to that, all the accused persons under the leadership of Dharmajay Prasad Mukhiya committed murder of Ram Swarath and his son Pramod Chauhan. After the occurrence the informant Harif Nonia asked Shiv Balak Nonia (C.W.2) to inform the local Chawkidar, namely, Baleshwar Paswan (C.W.3) for giving information of the occurrence to the concerned Police Station whereupon Chawkidar Baleswhar Paswan went to Barh Police Station along with the informant and thereafter Sub-Inspector Pyush Kant (C.W.4) rushed to the place of occurrence and reached at the place of occurrence at about 10.00 P.M. on the same day where he recorded the fardbeyan of informant Harif Nonia (P.W.5). After recording the fardbeyan he sent the same to Barh P.S. where on receipt of the same, Inspector of Police cum-Officer Incharge Bigul Gari registered a case bearing Barh P.S. Case No.261 dated 13.7.1994 for the offence under Sections 147, 148, 149, 302 of the India Penal Code and on that basis, he drew up a formal F.I.R. (Ext.1). After registering the case at 4.00 P.M., the said Officer Incharge Bigul Gari (C.W.1) rushed to the place of occurrence at about 6 P.M. on 13.7.1994 to village Shaidpur and on reaching at the place of occurrence, he got the inquest reports prepared vide Exts.3 and 3/1 and sent the dead bodies of the deceased for post mortem. The post mortem was conducted by Dr.Nagina Paswan of Sadar Hospital, Barh as per Exts. 2 and 2/1. During investigation, C.W.1 Bigul Gari seized the blood stained 6 earth and other materials from the place of occurrence and prepared seizure list, recorded the statements of the witnesses, inspected the place of occurrence, obtained post mortem reports and thereafter submitted separate charge sheet in all three appeals against the appellants and others accused persons showing Surjan Mahto as absconder. 3. On submission of the charge sheet, the learned Additional Chief Judicial Magistrate, Barh took cognizance of the offence against accused persons under Sections 147, 148, 149, 302 and 307 of the Indian Penal Code and Section 27 of the Arms Act. Thereafter on 13.8.1995 he committed the case to the Court of Session. Thereafter the appellants along with others were tried and convicted and sentenced, as stated above. Appellant Dharamjay Prasad Mukhiya was sentenced to death for the offence under Section 302/34 of the Indian Penal Code by the learned Additional Sessions who made reference for confirmation of death sentence. 4. The specific defence of appellant Dharamjay Mahto alias Dharamjay Mukhiya is that Ex-Mukhiya Madan Mohan Singh, who lost election of Mukhiya against him, has falsely implicated him in this case. His further defence is that the father of informant, namely, Keshav Chauhan has illegally encroached Gairmazarua Aam land for which he had reported the matter to the Senior S.P. and due to that, the informant after bringing Sub-Inspector, Peyush Kant in his collusion, falsely implicated him in this 7 case after changing the original F.I.R. His further defence is that on the alleged date of occurrence he was attending the meeting of Janata Dal at M.L.A. Club and was not present on the village. The defence of the other accused is of false implication. 5. In order to prove the case, the prosecution has examined seven witnesses in this case, namely, Ram Sagar Prasad (P.W.1), Nagina Paswan (P.W.2), Chandrika Prasad (P.W.3), Dulari Devi @ Sundari Devi (P.W.4), Harif Nonia @ Chauhan (P.W.5), Chhattu Prasad (P.W.6) and Rajendra Prasad Yadav (P.W.7). Out of the aforesaid witnesses, P.Ws. 1 and 7 are the formal witnesses. They have proved the formal F.I.R. and fardbeyan of the informant besides the entire case diary which are Exts. 1, 5 and 6, respectively. Out of the remaining witnesses, P.W.2 is the doctor, who had conducted post mortem examination on the dead body of both the deceased. P.W.4 Dulari Devi @ Sundari Devi, who is said to be the mother of the informant and deceased Ram Swarath and grand-mother of deceased Pramod Chauhan, has been tendered for cross- examination. P.W.6 Chhattu Prasad is a witness of the inquest reports which are Exts. 3 and 3/1. P.W.3 is an independent witness whereas P.W.5 is the informant of this case. 6. From the record it transpires that four other witnesses were also examined under the provisions of Section 311 of the Code of Criminal Procedure. They are Bigul Gari Inspector of Police-cum-I.O. (C.W.1), Shiv 8 Balak Nonia (C.W.2), Chowkidar Baleshwar Paswan (C.W.3) and Peyush Kant Inspector of Barh P.S. (C.W.4). It is stated that this witness had recorded the fardbeyan of the informant and had prepared inquest reports. The fardbeyan of the informant is the basis of this case. 7. The defence has also examined ten witnesses in support of the defence case. They are Lakhan Mahto D.W.1, Kamlakant Prasad Sharma D.W.2, Arjun Sharma D.W.3, Ramakant Prasad Singh D.W.4, Bal Govind Prasad Singh D.W.5, Krishnadeo Prasad Singh D.W.6, Birendra Prasad Singh D.W.7, Nityanand Singh D.W.8, Umesh Prasad Singh D.W.9 and Arun Prasad D.W.10. The defence has also produced some documents which have been marked as exhibits. 8. Let me see – whether on the basis of the materials available on record, the prosecution case, as disclosed in the fardbeyan (Ext.3) of the informant (P.W.5), has been proved beyond all reasonable doubts or not ? 9. In order to find out – whether on the basis of the materials available on record it can be held that the prosecution has been able to substantiate the charges levelled against the accused persons beyond all reasonable doubt, I would like to firstly discuss the evidence of the prosecution witnesses and the evidence of the court witnesses. As stated above, altogether seven witnesses have been examined on behalf of the prosecution. P.W.1 is Ram Sagar Prasad. He is a formal 9 witness. He has proved the formal F.I.R which has been marked as Ext.1. 10. P.W.2 is Dr. Nagina Prasad, who had conducted post mortem examination on the dead body of Pramod Chauhan and Ram Swarath Chauhan on 13.7.94 at 4.45 P.M. and 5.20 P.M. His evidence is as follows :- On 13.7.1994 at 4.45 P.M. he had conducted post mortem examination on the dead body of Pramod Chauhan and found the following injuries. The eyes were open. Mouth was closed. Rigor mortis was present in all four limbs. (i)Circular shaped lacerated wound over interior surface of left chest adjacent to sternum 1” in diameter margin was inverted. Skin was black and charred. In surrounding area there were multiple dots like burns. Track passes inward. Sternum was fractured. This was wound of the entry. (ii) Circular shaped lacerated wound over the back of abdomen adjacent to lumber vertebra 1/1” in diameter margin was inverted. On dissection skull meninges and brain matters were intact, lungs were pale, liver was pale, kidneys and spleen were pale. Heart was ruptured and left side of diaphragm was also ruptured and directed towards abdomen. Stomach contained digested food. Small and large 10 intestine was full of gases. Time passed since death within 6 to 46 hours from the time of examination. Cause of death was due to shock and haemorrhage caused by fire- arm injury. He has proved post mortem report which has marked as Ext.2. 11. P.W.2 has further deposed that on the same day at 5.20 P.M. he held post mortem examination on the dead body of Ram Swarath Chauhan and found the following injuries. Eyes were semi-open; mouth was closed; rigor mortis was present in all four limbs. (i) Circular shaped lacerated wound over the left iliac region with blackened and charred skin, margin was inverted ¼” in diameter. This was wound of entry. (ii) Circular shaped lacerated wound over the back of abdomen just above the left iliac next ½” in diameter, margin inverted. This was wound of exit. On dissection, skull meninges in brain matters were intact lung, liver, kidneys, spleen were pale. Heart was empty, stomach was empty and small intestine was ruptured. The age of injuries was within 6 to 36 hours. Cause of death was due to shock and haemorrhage caused by injuries of fire-arms such as rifles and guns. He has proved post mortem report of deceased Ram Swarath Chauhan which has been marked as Ext.2/1. He has also proved two 11 inquest reports of the aforesaid deceased which have been marked as Exts.3 and 3/1, respectively. 12. The evidence of P.W.2 coupled with post mortem reports Exts. 2 and 2/1 and the inquest reports Exts. 3 and 3/1 establishes beyond doubt that the death of deceased Pramod Chauhan and Ram Swarath Chauhan was homicidal caused by fire-arm injuries. 13. P.W.3 Chandrika Prasad is said to be the eye-witness of the occurrence. His evidence is that the occurrence took place more than three years ago at about 4 P.M. in the evening. At that time, he was going south of the village and when he reached near the Dalan of Kansi Zamadar he saw Dharamjay Mukhia coming from south followed by six persons, namely, Surjan Mahto, Lal Muni Chauhan alias Chunnu Chauhan, Bablu Mahto, Binda Mahto, Gonu Mahto and Karu Mahto. They were armed with rifles, guns and pistols. Pramod, Ram Swarath (both deceased) and Harif tried to run away from that place whereupon Dharamjay Mukhiya asked them to sit down but Pramod, Ram Swarath and Harif ran towards Dalan where Dharamjay Mukhiya exhorted all other accused persons to open fire upon which Bablu Mahto fired shot with his rifle which hit Pramod on his chest, Gonu Mhato fired shot with his rifle which hit Pramod on his back above the waist. Surjan Mahto opened fire with his gun which hit Ram Swarath on his head. Lalmuni Chauhan opened fire with his gun which hit Ram swarath on his abdomen. Binda Mahto fire shot with his rifle which hit Ram Swarath on his 12 back. Karu Mahto fired shot with his pistol at Harif but Harif remained unhurt. Pramod and Ram Swarath died at the spot. The motive of the occurrence was that Ram Swarath used to hire labourers to brick-kiln at Patna on contract basis. Appellant Dharamjay Mukhiya was demanding Rangdari tax from him but Ram Swarath refused to give Rangdari tax to him and due to that, this occurrence had taken place. In cross-examination at paragraph 50 he has stated Dharamjay Mukhiya had not demanded any extortion money from deceased Ram Swarath in his presence. He has also admitted that Dharamjay Mahto is continuing as Mukhiya for the last 15 years and prior to that, Madan Mohan Singh was the Mukhiya of village Rahima. 14. P.W.4 Dulari Devi alias Sundari Devi is the mother of the informant and deceased Ram Swarath and grand- mother of Pramod Chauhan. She has been tendered for cross-examination. In cross-examination, no question was asked from her on the point of occurrence. So, her evidence is not relevant in this case. 15. P.W.5 Harif Nonia is the informant of this case. His evidence is that the occurrence took place about three years and 17-18 days back on a Tuesday at about 4 P.M. At that time he was at his Dalan. His brother Ram Swarath, father Kesho Chauhan, uncle Shiv Balak Chauhan, nephews Pramod Chauhan and Manoj Chauhan were also present there. He saw appellant Dharamjay Mukhiya along with Bhonu Mahto, Bablu Mahto, Surjan Mahto, Lalmuni alias Chunnu Chauhan, Binda Mahto and Karu Mahto coming towards Dalan. 13 Bhonu Mahto, Bablu Mahto and Binda Mhato were armed with gun whereas Surjan Mahto and Lalmuni were armed with gun and Karu Mahto was armed with a pistol. They all came in front of his Dalan. Dharamjay Mukhiya asked Ram Swarath and Pramod to sit at the same place otherwise he would shoot them. Out of fear, Ram Swarath and Pramod started fleeing away towards Dalan and then Dharmajay Mahto ordered to open fire whereupon Bablu fired shot form his rifle which hit Pramod on his chest, Bhonu Mahto fired shot from his rifle which hit on his back above waist, Surajan Mahto fired shot from his gun which hit Ram Swarath on his head, Lalmuni Chauhan fired shot from his gun which hit Ram Swarath on his abdomen, Binda also fired shot from his rifle which hit Ram Swarath on his back and Karu Mahto fired shot from his pistol at him but he remained unhurt. Being injured Ram Swarath and Pramod fell down and died on the spot and then all the accused persons fled away. He has further deposed that Ram Swarath and Pramod used to send labourers to the brick- kiln in Patna. Dharamjay Mukhiya used to demand Rs.10/- per labourer as extortion money from them but Ram Swarath told that he was a poor man and was not in a position to pay money whereupon Mukhiya Jee had threatened him to teach lesson. He has further deposed that the police had recorded his statement at his house at about 10 O’ clock in the night and on the said statement, he had put his signature (Ext.4) which was also signed by witnesses, namely, Shiv Balak and Kailash Prasad Chauhan whose 14 signatures have been marked as Exts. 4/1 and 4/2, respectively. At paragraph 16 of his evidence, P.W.5 has stated that he had gone to Barh P.S. with Baleshwar Paswan (C.W.3) and returned from that place along with the police. The police had made enquiry from him at the police station. He has further deposed that he had not stated the name of the accused persons to S.I. of Police at Barh P. S. rather at his house he disclosed the names of the accused persons. He has further deposed that he along with Baleshwar stayed at the police station for about one to one and half hours and although S.I. of Police and the constables were present at the police station but they did not obtain his signature or his thumb impression on any paper. At paragraph 17, P.W.5 has deposed that after coming to the place of occurrence, S.I. of Police firstly prepared inquest reports of the dead bodies in presence of Shiv Balak, Kailash and Kesho Chauhan and then recorded his statement. At paragraph 23 he has deposed that besides the members of his family, many people of the village from far off and neighbouring area had watched the occurrence. At paragraph 30, P.W.5 has deposed that the accused persons had fired at lest 8 to 9 shots and even at the time of running away, they had fired 2 to 3 shots. At paragraph 35, he has deposed that the blood in huge quantity had fallen at the place of occurrence which was in the area of 2’ to 3’ on the land where Pramod had fallen. He has further deposed that the 15 blood was also spread in an area of 2’ to 3’ on the land where Ram Swarath had fallen. At paragraph 49, P.W.5 has stated that when he had gone to Barh Police station with the Chowkidar four more persons had also accompanied him at that time. He was crying there and sitting near the police Station and did not know whether any person informed the police about the occurrence but he could not tell the names of the accused persons because he was shocked. At paragraph 51, P.W.5 has deposed that after arrival of the police he and his father discussed about the occurrence and names of the accused persons to be given to the police. At paragraph 53 he has denied the suggestion that his fardbeyan was changed by the police. At paragraph 63, he has stated that Dharamjay Mukhiya had never demanded any extortion money in his presence. 16. Chhathu Prasad is P.W.6. He is a co-villager of the informant. His evidence is that the occurrence took place on 12.7.1994 and on hearing sound of firing he went to Dalan of Kesho Chauhan at about 4 P.M. and saw the dead bodies of Pramod and Ram Swarath lying there with mark of bullet injury. The police arrived at the place of occurrence at about 6 A.M. and prepared inquest reports of both the dead bodies on which he put his signatures (Exts. 4/2 and 4/3). He has also proved the signatures of witness Sahdeo Chauhan on the two inquest reports which have been marked as Exts.4/4 and 4/5. At paragraph 24 of his cross-examination, this witness has deposed that there is interpolation on Ext.3 and there is overwriting 16 on the date and after overwriting date “12/7” has been written as “13/7”. 17. P.W.7 Rajendra Prasad Yadav is again a formal witness. He has proved the fardbeyan recorded by S. I. Sri Peyush Kant which has been marked Ext.5. He has also proved the signature of Sri Bigulgari, Officer Incharge on the first information report. Being formal witness, the evidence of P.W.7 is not material in this case. 18. Now turn comes to the evidence of the court witness as I have already stated above that four witnesses were examined as court witnesses under the provisions of Section 311 of the Code of Criminal Procedure. The first witness is Bigulgari, Inspector of Police Barh Police Station. He is the Investigating Officer of this case. His evidence is that on 13.7.1994 he was posted as Officer Incharge at Barh P.S. On that day he received the fardbeyan of the informant Harif Nonia of village Shaidpur recorded by S.I. Peyush Kant on the basis of which he registered this case and took up investigation. During investigation he visited the place of occurrence which is Dalan of the informant and the deceased persons situated at village Shaidpur facing east. There are two rooms inside the verandah of Dalan. On the same verandah, he found the dead body of Ram Swarath Chauhan lying towards south and the dead body of Pramod lying towards north which was lying in a pool of blood. He found a cot kept in the courtyard in front of verandah. He also found the blood fallen on the ground 17 below the cot and on the cot. At paragraph 8, he has deposed that there is no mention about the deputation of S.I. Peyush Kant in the case diary in connection with this case. At paragraph 17, he has deposed that from the case diary it would not be clear as to when S.I. Peyush Kant had left for place of occurrence. At paragraph 21, he has deposed that Peyush Kant had prepared the inquest reports. At paragraph 34, he has deposed that he had not collected the