State Of Bihar v. Malik Mahto — 1990 DIGILAW 153 (PAT)

Judgment K.B.Sinha and S.Hoda JJ. 1. Both the appeals and the reference made under Section 366 of the Code of Criminal Procedure, arise out of the same judgment and so they have been heard together and are being disposed of by this common Judgment. 2. Appellant Malik Mahto (Cr. Appeal No. 92/88) has been convicted under Section 302 of the Indian Penal Code and sentenced to death. He and appellant Sheo Mahto (Cr. Appeal No. 107/88) have been convicted under Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 (Seven) years. The sentences awarded to appellant Malik Mahton have been ordered to run concurrently. 3. Besides these appellant, nine other accused were put on trial to face the charges under Sections 302 and 201 of the Indian Penal Code, out of them eight were acquitted. Accused Manti Kumari was held guilty for committing the offence under Section 201 of the Indian Penal Code but, instead of awarding substantive sentence, the trial court directed that she should be released under the provisions of Section 360 of the Code of Criminal Procedure after executing bond of Rs. 5,000/- with two sureties of the like amount each for keeping good behaviour for period of two years. 4. The case of the prosecution, as disclosed in the First Information Report (Ext. 2), is that on 9-2-1984 at about 6 A. M. the informant Bhikhu Prasad (PW 4) heard a rumour that his sister Bachchi Devi was murdered in the night of 4-2-1984, he was married with Mailk Mahto of village Sagar Sultanpur in the month of preceding Baishakh He also learnt that the husband of Bachchi Devi and her father-in-law, accused Dharamdgo Mahto and grand-father-in-law, appellant Sheo Mahto committed her murder and disposed of the dead body in the night. Having received the said information the informant went to village Sagar Sultanpur with his co-villagers Ram Eqbal Mahto, Nageshwar Mahto, Awadhesh Mahto and Chandra Shekhar Ram. He did not find Malik Mahto and his father Dharamdeo Mahto at their residence and only appellant Sheo Mahto was found there On being asked the said appellant told the informant and his companions that Bachchi Devi died due to stomach trouble and thereafter she was cremated. The informant did not find any one of the family of the appellant putting Uttari. The informant did not find any one of the family of the appellant putting Uttari. The expression "Uttari" is used by the villagers in certain parts of this State to mean white clothes, which a person puts on for some period after liting the funeral pyre. It was also noticed that no rite was being performed at the house of the appellant which was generally done after the death of a Member of a family. 5. The informent is a resident of village Chainpur Bangra within Mashrak Police Station in the district of Saran. The occurrence, according to the prosecution case, took place in village Sagar Sultanpur within Bhagwanpur Police Station in the district of Siwan Bhikhu Prasad lodged a First Information Report at Bhagwanpur Police Station. On the basis of the F. I. R. the Police registered a case and after investigation submitted charge-sheet against the appellants and other accused. 6. In order to substantiate the charges against the accused, 17 witnesses were examined on behalf of the prosecution in the trial court. Out of them PW 14 Raj Kishore Lal and PW 16 Rabindra Prakash Singh are the Judicial Magistrates, who recorded the statement of some of the witnesses under Section 164 of the Code of Criminal Procedure. The evidence of PW 15 Imam Husain and PW 17 Ganesh Prasad, both Advocates clerks, are formal in nature. PW 15 proved the signature of the Judicial Magistrate (PW 16) on the statement recorded under Section 164 of the Code of Criminal Procedure and PW 17 produces the material exhibits in the court which were brought from the court malkhana. PW 1 Ram Ekbal Mahto, PW 3 Nageshwar Pd. Nonia PW 4 Boikhu Prasad, PW 5 Awadhesh Pd. and PW 11 Krishna Prasad claimed to have learnt about the occurrence from the some villagers of village Sagar Sultanapur. PW 2 Shikhan Mian, PW 7 Dr. Dinanath Prasad, PW 9 Nisab Mian and PW 12 Fulgendi Devi were declared hostile in the trial court. PW 6 Chandra Shekar Ram, PW 8 Sri Bhagwan Ram and PW 10 Chhabila Prasad were tendered by the prosecution for cross-examination PW 14 Nagendra Prasad Sinha, the Sub-Inspector of Police conducted investigation in the case and submitted charge sheet. 7. No. witness was examined on behalf of the appellants in the trial court. PW 6 Chandra Shekar Ram, PW 8 Sri Bhagwan Ram and PW 10 Chhabila Prasad were tendered by the prosecution for cross-examination PW 14 Nagendra Prasad Sinha, the Sub-Inspector of Police conducted investigation in the case and submitted charge sheet. 7. No. witness was examined on behalf of the appellants in the trial court. From the trend of cross-examination, the suggestion given to the witness as and their statements recorded under Section 313 of the Code of Criminal Procedure, it appears that they took the plea of innocence and false implication in this case. 8. PW4 Bhikhu Prasad stated in his evidence that Bachchi Devi was his sister. She was married in the month of Baishakh, 1983 with appellant Malik Mahton. He learnt from a KUNJRA of village Sagar Sultanpur on 9-2-84 that appellant Malik Mahton and the members of bis family had committed Murder of his sister on 4-2-84 and disposed of her dead body PWs 1, 3, 5 and 11 also stated to have learnt on 9-2-84 about the murder of Bachchi Devi through a person of village Sagar Sultanpur. After getting this information, the informent along with the said witnesses went to village Sagar Sultanpur. Bachchi Devi was not found in her house. Appellant Malik Mahton and his father were also not seen there. They met appellant Sheo Mahto, who disclosed to them that Bachchi Devi developed pain in her stomach and suddenly died on 4-2-84 and thereafter her dead body was cremated. The informant and his companions went in the room which was being used by Bachchi Devi. They noticed that the floor of the said room towards north-west was freshly coated with mud. Inspite of coating of mud, blood-stains were visible on the floor of the room. As pointed out by appellant Sheo Mahto, they visited the place where the dead body of Bachchi Devi was cremated. They found the remnant of the burnt dead body. Some pieces of cloths, stained with blood and few plastic bangles were found concealed under the earth near that place. A look of that place gave an impression that the dead body was not cremated according to Hindu rites. The dead body was burnt on the surface of the ground instead of digging ditch which was customary for cremation of the dead body in that area. 9. A look of that place gave an impression that the dead body was not cremated according to Hindu rites. The dead body was burnt on the surface of the ground instead of digging ditch which was customary for cremation of the dead body in that area. 9. The informant also stated that the aunt of appellant Malik Mahtoa, who was living with him in the contigous room, was also not seen there. She had left the place with her children. No body in the family of the appellant was seen putting any Uttari or performing rites according to Hindu religion, therefore, the informant was convinced that Bachchi Devi was killed. He as well as his companions (PWs 1,2,5 and 11) stated that some female of village Sagar Sultanpur told them that the appellant Malik Mahton had illicit connection with accused Manti Devi. She was living in the house of the said appellant for the last three months prior to the occurrence. Appellant Malik Mahton did not like Bachchi Devi and this was the reason why she was done to death. 10. The informant along with PWs 1, 3 and 6 went to Bhagwanpur Police Station and lodged F. I. R. (Ext. 2). The informant (P W 4) denied the defence suggestion that after the death of Bachchi Devi a dispute arose with regard to the articles possessed by her. A Panchayati was held In which the Panchas decided that the articles presented to the deceased by her parents would be returned to the informant and the rest would remain with appellant Malik Mahto. He also denied that the verdict of the Panches was not acceptable to him and thus this false case was instituted in which the appellants were falsely implicated. 11. PW 2 Bhikhan Mian was a witness to the seizure of partially burnt cloth, three pieces of plastic bangles, some pieces of bones, partially burnt door planks. The said articles were seized by the Police Investigating Officer from the cremation ground In his evidence in court he denied that the said articles were seized by the Police in his presence He also denied to have made statement before the police that after the death of Bachchi Devi, the members of his family were absconding. Further he denied that the blood-stained earth was seized by the Police in his presence from the room of the deceased. Further he denied that the blood-stained earth was seized by the Police in his presence from the room of the deceased. He said that under the threat of the Sub- Inspector of Police he had to put his Signature on two documents. He was declared hostile and was cross-examined by the Public Prosecutor 12. PW 5 Awadesh Prasad said that he received information about the murder of Bachchi Devi on 9-2-84 through a Mohammedan of village Sagar Sultanpur, where she was married PW 11 stated to have learnt about the murder of Bachchi Devi on 9-2-84 from Hasib Mian of village Sagar Sultanpur. PW 9 Hasib Mian stated in his evidence that he did not go to village Chainpur Bangra on 9-2-84. To inform about death of Bachchi Devi. He neither knew Bachchi Devi nor he had any knowledge about her murder. He was declared hostile by the prosecution and his attention was drawn to the statement recorded under Section 164 of the Code of Criminal Procedure. 13. PW 7 Dr. Dinanath Prasad is also a resident of village Sagar Sultanpur. He stated that he was a Homeopath Practitioner and was carrying on his profession in his village for the last 10-12 years. His statement was also recorded under Section 164 of the Code of Criminal Procedure by PW 13 The Police also recorded his statement. He deined to have any knowledge about the occurrence. He was declared hostile and his attention was drawn to his previous statement recorded by the Magistrate and the Police. 14. PW 12 Fulgendi Devi is the aunt of appellant Malik Mahton. She stated that Malik Mahton was married in village Chainpur Bangre. She denied to have any knowledge whether his wife was dead or alive. She knew nothing about this occurrence. Her statement was recorded under Section 164 of the Code of Criminal Procedure by PW 13, to which her attention was drawn. She denied to have made statement either under Section 164 or before the Police that in the night of occurrence she had heard chocked voice of Bachchi Devi. She further denied that having heard the said voice she came out of her room and saw appellant Malik Mahton coming out of the room of the deceased with a blood-stained dagger. She denied to have made statement either under Section 164 or before the Police that in the night of occurrence she had heard chocked voice of Bachchi Devi. She further denied that having heard the said voice she came out of her room and saw appellant Malik Mahton coming out of the room of the deceased with a blood-stained dagger. She also denied that she saw cut injury on the neck of Bachchi Devi and she was crying for help and said that appellant Malik Mahton had cut her. She further denied that the appellants along with other accused carried the dead body and burnt it in the night itself. In cross-examination she stated that she was residing . separate from appellant Malik Mahton in a different house. She was not on visiting terms with the said appellant 15. PW 14 Nagendra Prasad Sinha was posted as Officer Incharge at Bhagwanpur Police Station in the month of February 1984, He recorded the F. I. R. of PW 4 Bhikhu Prasad on the same day at about 2 PM and took up investigation in the case. In course of investigation he went to village Sagar Sultanpur and inspected the place of occurrence. According to him, the place of occurrence is a mud-built house with tiled roof of the appellants. The court yard of the house was enclosed with Palm and Date leaves and dry straw. The floor of western room of the said house was found freshly washed with mud. Inspite of coating of mud, blood-stains were visible on the floor of a portion of the said room. He seized the blood-stained earth in presence of the witnesses from four places, for which a seized list (Ext. 4/1) was prepared. He went to the cremation ground which is situated at a distance of about 200 yards north of the house of the appellant. He found there fresh signs of burning of a dead body. He also found three pieces of clothes stained with blood and three plastic bangles concealed under the earth at a distance of one feet from the place. A piece of bamboo stained with blood was also seized by him. The said articles were seized in presence of witnesses Bhikhan Mian (PW 2) and one Ramayan Gonth for which a separate seizure list (Ext. 4) wss prepared. He stated that he produced PW Dr. A piece of bamboo stained with blood was also seized by him. The said articles were seized in presence of witnesses Bhikhan Mian (PW 2) and one Ramayan Gonth for which a separate seizure list (Ext. 4) wss prepared. He stated that he produced PW Dr. Dinanath Prasad, PW 9 Hlseb Mian and PW 12 Fulgendi Devi before the Magistrate for recording their statements under Section 164 of the Code of Criminal Procedure He found the appellant Malik Mahton and his father, accused Ramdeo Mahton missing from their house He sent the blood stained articles to the che micals exaniner for the chemical examination. He proved the statements of PW 2,7,9 and 12 recorded by him, to which the attention of the said witnesses was drawn in course of cross-examination by the prosecution. 16. The report submitted by the Assistant Director of Forensic Science Laboratory was produced in the trial court, from which it appears that human blood was found in the earth seized from a room of the house of the appellant. Blood stains were also found on the three pieces of clothes seized near the cremation ground but the origin of the blood could not be determined. 17. It is contended by learned counsel appearing on behalf of the appellant Malik Mahton that there is no reliable evidence on the record to connect him with the commission of the offence, as alleged by the prosecution. It has been argued PWs. 1 3, 4, 5 and 11 gave only hearsay version of the occurrence, which was not corroborated by the person from whom they claimed to have learnt. It is also urged that PWs. 2, 7, 9 and 12 do not support the prosecution case in court. Even if they had said something with regard to the occurrence in their statements under Section 164 of the Code of Criminal Procedure or before the Police that cannot be used as substantive evidence. 18. Learned counsel appearing on behalf of the State, on the other hand, has strenously argued that ample material is available on the record to establish the charges against the appellants. According to him, it is admitted fact that Bacbchi Devi was the wife of appellant Malik Mahton and at the time of occurrence she was residing with him. 18. Learned counsel appearing on behalf of the State, on the other hand, has strenously argued that ample material is available on the record to establish the charges against the appellants. According to him, it is admitted fact that Bacbchi Devi was the wife of appellant Malik Mahton and at the time of occurrence she was residing with him. So, it was for the appellant Malik Mahton and his family members to explain as to how murder of Bachchi Devi was committed while she was living with them. Learned counsel appearing on behalf of appellant Sheo Mahto adopted the argument advanced on behalf of the appellant Malik Mahton and contended that there is no evidence against the appellant and so his conviction is not sustainable. 19. Before dealing with the contention raised on behalf of the parties, it may be mentioned at the very out set that this is a case of circumstantial evidence. No witness has stated to have seen the appellant or any one committing the murder of Bachchi Devi. According to the learned counsel for the State, the facts and circumstances proved by the prosecution witnesses are sufficient to sustain the conviction of the appellants. The proved facts and circumstances, as stated by learned counsel for the State, to establish the charges against the appellant are mentioned here below : (i) Smt. Bachchi Devi was married with appellant Malik Mahton. (it) She was not seen at the place of her husband on 9-2-84, when PWs. 1, 2,4,5 and 11 went there. (iii) Appellant Malik Mahton was also found absent from his house. (iv) Blood-stained earth was found in the residential house of the appellants. (v) According to the report of the Chemical Examiner, the earth seized from the house of the appellants was stained with human blood (vi) three pieces of blood-stained clothes were found near the cremation ground and, according to the report of the Chemical Examiner, they were stained with blood. (vii) Three pieces of plastic bangles concealed under the earth were also found at the cremation ground. (vii) Three pieces of plastic bangles concealed under the earth were also found at the cremation ground. (viii) No information was given by appellants or his family members about the death of Bachchi Devi On the basis of the facts and circumstances mentioned above, it has been argued by learned counsel for the State that the prosecution has successfully brought home the charges against the appellants 20 It is well-known that in order to base a conviction solely only the circumstantial evidence, it is essential that all the incriminating facts and circumstances should be proved by cogent and reliable evidence. The facts and circumstances so proved should lead to the only conclusion that none-else except the accused committed the alleged offence. If the circumstances proved in a case are not inconsistant with the innocence of the accused and are susceptible to any other reasonable explanation the same cannot be made the basis of conviction There are catena of decisions on this point. However, reference may be made to the case of Hukum Singh V/s. The State of Rajasthan, AIR 1977 SC 1963. 21. Now adverting to the facts of the case, we find that PWs.1,3,4, 5 and 11 stated in their evidence that they learnt on 9-2-84 in the morning through some one of village Sagar Sultanpur that Bachchi Devi was murdered in the night between the 4th/ 5th February, 1985. They along with some other villagers after getting the information went to Sagar Sultanpur where Bachchi Devi was married. According to their evidence appellant Shiv Mahton told them that Bachchi Devi died due to stomach trouble and thereafter her dead body was disposed of. The said witnesses, except PW 11, could not dis lose the name of the person who gave the information to them about the death of Bachchi Devi. PW 11 stated that PW 9 Hisab Mian had informed about murder of Bachchi Devi. In his evidence in court. PW 9 Hisab Mian, completely denied to have given any information to the informant of his villagers about the murder of Bachchi Devi. Thus, it is clear that evidence of PWs. 1, 3, 4, 5 and 11 is hearsay and is of no aid to the prosecution in proving the fact of murder of Bachchi Devi. 22. There is another set of witnesses from Village Sagar Sultanpur. Thus, it is clear that evidence of PWs. 1, 3, 4, 5 and 11 is hearsay and is of no aid to the prosecution in proving the fact of murder of Bachchi Devi. 22. There is another set of witnesses from Village Sagar Sultanpur. Out of them PW 2 was a witness of seizure of the incrimination articles from the residence of the appellants as well as from the cremation ground. Although he denied that any article was seized by the Sub-Inspector of Police in his presence, but in our view that cannot be a ground to reject the testimony of PW 13 the Police Investigating Officer. On the basis of the evidence of PW 14, coupled with the report of the chemical examiner, it can be inferred that blood-stained earth seized from one of the rooms of the house of the appellants was found stained with human blood 23. It has been canvassed at length by counsel for the State that adequate evidence is available on the record to justify the conviction of the appellants. According to the appellants, the evidence is too scanty and absolutely insufficient for their conviction The question, therefore, arises as to whether the circumstances proved by the prosecution witnesses are sufficient to lead to the conclusion that appellant Malik Mahton had committed the murder of Bachchi Devi. 24. It appears that PW 12 in her statement under Section 164 of the Code of Criminal Procedure stated that she had heard chocked voice of the deceased in the night of the occurrence and thereafter she saw appellant Malik Mahton coming out from his room with blood stained dagger. As mentioned above, her statement under Section 164 of the Code of Criminal Procedure reveals that the deceased had told her that appellant Malik Mahton bad cut her and she saw marks of cutting on the neck of Bachchi Devi The evidence of PW 7 Dr. Dinanath Prasad in court is quite different and contradictory to what he had stated under Section 164 of the Code of Criminal Procedure. He denied to have visited the house of the said appellant in the night of the occurrence. He completely denied any knowledge of this occurrence. The evidence of PW 9 Hasib Mian has already been discussed. He emphatically denied to have given any information about the murder of Bachchi Devi to the informant and his co-villagers on 9-2-1984. He denied to have visited the house of the said appellant in the night of the occurrence. He completely denied any knowledge of this occurrence. The evidence of PW 9 Hasib Mian has already been discussed. He emphatically denied to have given any information about the murder of Bachchi Devi to the informant and his co-villagers on 9-2-1984. The said witnesses (PWs. 2,7,9 and 12) were declared hostile in the trial court, primarily, on the ground that they did not stick to their earlier statement recorded by the police under Section 164 of the Code of Criminal Procedure. 25. It is well-settled that the statement made by the witness under Section 164 of the Code of Criminal Procedure is not substantive evidence. Such statements can be used to corroborate or contradict the statements made by the witnesses in court in the manner provided under Sections 145 and 157 of the Evidence Act, where two types of statements, one recorded under Section 164 of the Code of Criminal Procedure and the other in court, are not consistent, the witness making such statement cannot be held to be reliable Thus, in view of the legal position, the statements of PWs. 2,7,9 and 12 have to be excluded from consideration. 26. Some other incriminating circumstences were also made the basis for conviction of appellant Malik Mahton. Now, we propose to deal with the said incriminating circumstances. According to the prosecution case blood-stained earth was seized by the Police Investigating Officer (PW 14) from the room of appellant Malik Mahton which was found stained with human blood, while the statement of the appellant was recorded under Section 313 of the Code Criminal Procedure but no question was put to him with regard to the said incriminating circumstance However, a question was asked to him that from the cremation ground blood-stained pieces of clothes, bangles, partially burnt bamboos and woods stained with human blood, were seized by PW 14. The chemical report does not disclose that the said articles were stained with human blood. Besides this no evidence was laid by the prosecution that this appellant also participated in cremating the dead body of Bachchi Devi. The articles found at the cremation ground and seized by PW 14 could not have been used as incriminating circumstances against this appellant. The chemical report does not disclose that the said articles were stained with human blood. Besides this no evidence was laid by the prosecution that this appellant also participated in cremating the dead body of Bachchi Devi. The articles found at the cremation ground and seized by PW 14 could not have been used as incriminating circumstances against this appellant. After close analysis of the evidence Said by the prosecution, we find that it is admitted that Bachchi Devi was married with Malik Mahton, as stated in his statement under Section 313 of the Code of criminal Procedure, PW 1, 3, 4, 5 and 11 stated that they did not find the said appellant at his residence when they visited on 9-2-84 and Bachchi Devi was also not seen there. PW 4 Bhikhu Prasad, the informant, was also not given any information by the family members of this appellant about the ailment and the death of Bachchi Devi. 27. In our view, on the basis of these three circumstances, which the prosecution has been able to establish, it is difficult to hold that the allegation made against appellant Malik Mahto for committing murder of Bachchi Devi has been successfully established. There is complete lack of evidence on the record for reaching to the safer conclusion that the appellant Malik Mahton committed murder of Bachchi Devi in the night of the occurrence There are many missing links in the chain of circumstances which the prosecution has tried to prove to establish of the guilt of the appellant. 28. As regards appellant Sheo Mahto is concerned, none of witness stated that he had participated in disposal of the dead body of Bachchi Devi. So, his conviction under Section 201 of the Indian Penal Code cannot he sustainable. 29. In view of the foregoing discussions, we are not inclined to accept the reference and accordingly, it is discharged. Both the appeals are allowed, The conviction and sentence passed against the appellants are set aside. Appellant Sheo Mahto is discharged from the liability of bail bond. Appellant Malik Mahton is set at liberty forthwith, if not wanted in any other case.