CRIMINAL APPEAL No.545 OF 1988 (DB) With CRIMINAL APPEAL NO. 2 OF 1989 (DB) Against the judgment of conviction and order of sentence dated 13th December, 1988 passed in Sessions Trial No. 676 of 1985 by Shri R.D. Roy, 7th Additional Sessions Judge, Patna ********* 1. RAMJI MAHTO SON OF LATE MAHEWH MAHTO 2. RAGHUNATHMAHTO SON OF LATE CHAITU MAHTO BOTH RESIDENT OF VILLAGE- DIGHA BUJURY, P.S.- DIGHA, DISTRICT- PATNA ………………………………….APPELLANT (IN Cr. Appl. No. 545/88 DB) With 1.SHEO MAHTO SON OF LATE KULDEEP MAHTO RESIDENT OF VILLAGE- KURJI, P.S.- DIGHA, DISTRICT- PATNA ………….APPELLANT (IN Cr. Appl. No. 2/89) Versus THE STATE OF BIHAR ……………………………….RESPONDENT *************** For the Appellants :- Mr. Dinu Kumar, Advocate Mr. Satyendra Prasad, Advocate Mr. Umesh Kumar Verma, Advocate For the Respondent :- Mr. Dilim Kumar Sinha, APP ************************ P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S. K. Sharma & D. K. Singh, JJ. Above noted both the appeals have arisen out of common judgment so both have been heard together and are being disposed of by this common judgment. 2. Above noted appeals have been preferred by the appellants named above against the judgment dated 13th December, 1988 passed in Sessions Trial No. 2 676 of 1985 by the learned 7th Additional Sessions Judge, Patna whereby the appellants have been convicted under Sections 302/34 and 201 of the Indian Penal Code and each of them have been sentenced to undergo rigorous imprisonment for life under Sections 302 read with Section 34 of the Indian Penal Code and further each have been sentenced to undergo rigorous imprisonment for three years under Section 201 of the Indian Penal Code and it was ordered that both the sentences shall run concurrently. 3. The appellants were charged under Sections 302/34 of the Indian Penal Code for intentionally committing murder/causing death of Veena Devi daughter of Hari Narain Mahto in furtherance of common intention in between the night of 18/19th October, 1972 at Mohalla Kurji, P.S.- Digha, District- Patna and they were further charged under Section 201 of the Indian Penal Code for causing disappearance of the dead body of Veena Devi. 4. The written application submitted by Hari Narain Mahto to the Officer-In-Charge, Digha Police Station became the basis of the prosecution case. The informant in his written application stated that his daughter Veena Devi was married in Ashadh month of 1971 with Shiv Mahto. She was not being liked by her 3 in-laws and she used to be reminded that she was not beautiful so she was not liked. She used to be assaulted and tortured. The informant passed this information to Shiv Mahto but on 17.10.1972 the informant’s son-in- law Shiv Mahto came along with his daughter Veena Devi and when the informant inquired then suddenly Shiv Mahto escaped. It was stated that on 16.7.1972 Veena Devi was scolded by the grand father of Shiv Mahto as to why she had gone to witness the statue on the eve of Durga Puja. Ultimately the informant was informed by some one that his daughter is no more and she has been burnt. The informant rushed to the house of in-laws namely of the accused persons where he was told that Veena died of Cholera and she has been creamated. This information has been resulted into institution of the FIR. After investigation the police submitted chargesheet and accordingly, cognizance was taken. After observing paraphernalia case was committed to the court of Sessions where the charges were explained to the accused persons to which they pleaded innocence and claimed to be tried. 5. The defence of the appellants is of false implication and also that the death was on account of Cholera. The last rites were performed in presence of informant and his family members but at the behest of 4 some persons inimical to the family of the accused they have been roped in later on. 6. Now It has to be seen here as to whether the prosecution has been able to prove the charges against the appellants beyond all reasonable doubts or not. 7. In order to prove its case the prosecution has examined altogether six witnesses. They are Deopati Devi @ Dhora Devi (PW 1), Saroj Devi (PW 2), Shakuntala Devi (PW 3), Shyam Narain Sao (PW 4), Shankier Das (PW 5), Rajeshwar Prasad (PW 6). Neither the informant nor the Investigating Officer has been examined. 8. PWs 2 and 3 are sisters of the deceased and they are not named as witness in the First Information Report. The prosecution case is that the informant’s daughter was married with Shiv Mahto and within a few months of her marriage she went to see Mela on the eve of Durga Puja but it was not liked by the grand father of her husband so she was scolded. She was sent to her father’s house where she narrated her agony and she expressed suspicion over her life but after sudden information of death on account of Cholera a suspicion was raised and it was alleged that she had been done away by the accused persons because she 5 was not of fair complexion so she was not being tolerated in the family of the accused persons. 9. PW 5 is FIR witness. He has stated that he is maternal uncle of Veena Devi (deceased). He stated that on 17.10.1972 he had gone to the house of Veena Devi and Shiv Mahto where he found Veena Devi weeping who told that her in-laws are torturing her. She expressed suspicion that she might be killed by her in- laws. Thereafter, on 19.10.1972 the informant received information regarding death of Veena Devi. The case was registered and it was alleged that after killing her dead body has been disposed of without giving information to the members of family of the deceased. 10. PW 5 has been supported by PWs 1, 2 and 3. PW 4 has been tendered and PW 6 is a formal witness who has proved the signature of the informant. 11. The prosecution case is that in furtherance of common intention, these appellants have killed Veena Devi and they have disposed of the dead body for the purpose of screening themselves from the evidence. But it has been argued by the learned counsel appearing on behalf of the appellants that non- examination of the informant and Investigating officer has proved fatal for the prosecution case because in this case there is no witness to the occurrence and the 6 case is based on circumstantial evidence and in a case of circumstantial evidence, the chain of events must be linked with each other so coherently from which only inference could be drawn that it was the only accused persons who have committed the offence but in this case the evidence to that extent is wanting. It has also been submitted that non-examination of the Investigating Officer in a case of circumstantial evidence has left the prosecution version in mid-way because neither the place of occurrence has been proved nor the defence has been able to take out the contradictions of the statements of the witnesses given under Section 161 of the Code of Criminal Procedure which caused grave prejudice to the case of the appellants. 12. After considering the evidences available on the record, it is apparent that there is no witness to the occurrence. The case is based on circumstantial evidence and the evidence is only to the extent that Veena Devi had gone to her in-laws house and for a petty matter she was scolded by grand father of Shiv Mahto because she has dared to visit Durga festival along with her husband. The grand father of Shiv Mahto has not been made accused so the motive remained unexplained. 13. Considering the facts and circumstances 7 discussed above, we are of the view that the prosecution has not been able to prove the charges leveled against the appellants beyond all reasonable doubts. Accordingly, the judgment of conviction and sentence against the appellants is set aside. 14. In the result, both the above appeals are allowed and the appellants are acquitted from the charges. They are discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.) Patna High Court, Patna Dated 16th August, 2010 Avin/N.A.F.R.