Lilo Mahto v. State Of Bihar — 1990 DIGILAW 430 (PAT)

Judgment S.B.Sinha, J. 1. These two Criminal Appeals arise out of the judgment, dated 24th March, 1988 passed by Sri M. L. Visa, 2nd Additional Sessions Judge, Giridih in Sessions Trial No. 115/84, whereby and whereunder, the said learned court convicted the appella nts under Sections 302 and 201 of the Indian Penal Code as also under Section 120-B thereof. 2. In Criminal Appeal No. 69 of 1988 (R), Sundar Bhogta, Rewat Bhogta, Terali Mian and Basarat Mian are the appellants whereas in Criminal Appeal No. 77 of 1988 (R) only Lilo Mahto is the appellant. 3. The aforementioned five appellants stood their trial alongwith Tikar Bhogta and Tulsi Bhogta under Sections 302/201, 120-B and 379 of of the Indian Penal Code. 4. The aforementioned Tikar Bhogta and Tulsi Bhogta have been acquitted by the learned court below by the judgment impugned in these appeals. 5. The short fact leading to lodging of the first information report by Munshi Mahto (PW 8) son of the deceased Somar Mahto at 8 a.m on 19-7-1983 is that allegedly Basarat Mian and Tulsi Bhogta (since acquitted) went to the house of Somar Mahto and requested him to accompany them to Jamua Hat where they were to purchase she-buffalo, on the pretext that the deceased was known to the cattle dealers and with his help, they can buy the cattle on credit. According to the aforementioned requests of Tulsi Bhogta and Basart Mian, the deceased accompanied them left for Jamua Hat, but he did not return on that date. He also did aot return on the next day hence the informant and his family members started searching for him, in course whereof, they came to learn that on the preceding Thursday, PW 5, Bhairo Mahto had seen the deceased at Jamua Hat at about 4 p.m. 6. It was further alleged that PW 5 asked the deceased to return to his home but the accused persons did not allow him to return saying that they had brought him from his house and they would reach him there. 7. Allegedly, the accused persons were having deliberations amongst themselves. It was further alleged that informant thereafter went to the house of his brother-in-law at Jamua but there also could not get any information about the deceased. 8. 7. Allegedly, the accused persons were having deliberations amongst themselves. It was further alleged that informant thereafter went to the house of his brother-in-law at Jamua but there also could not get any information about the deceased. 8. It was farther alleged that thereafter, he went to Argaghat and came to know from the daughter of one Kanakhya Naraia Baidya that the dead body of his father was lying on the bank of river Usri at Kirtaniaghat The informant rushed there and found the dead body of his father with some injuries thereon. 9. The prosecution in support of its case examined eight witnesses. 10. PW 1, Dasrath Gope, PW 9, Dr. Sibnarain Prasad and PW 10, Kapildeo Sharma are formal witnesses. PW 6, Jubli Devi was tendered. PW 4 Govind Mahto was declared hostile. PW 2, Karamchand Mahto is a minor son of the deceased Somar Mahto, who is a hearsay witness. PW 3, Amia Devi is the wife of the deceased. PW 8, Munshi Mahto is the informant and PW 5, Bhairo Mahto, as indicated hereinbefore, is a cousin brother of deceased (Somar Mahto). 11. PW 1, PW 2 and PW 8, in their deposition stated about appellants Basarath Mian and Tulsi Bhogta coming to their house and taking the deceased with them. 12. PW 3 further stated that when the deceased did not return on Thursday, she had inquired from appellant Basarat, who denied to have accompanied the deceased to the Hat. She further stated that her family was not in good terms with the appellants and they have land disputes with the appellants, Lilo Mahto and Basarath. She further stated that Basarath and Tulsi had some illicit relationship with wife of Lilo, who happened to be Mama of her husband. 13. PW 8, in his deposition stated about his meeting with PW 5 and allegedly came to learn that his father was seen in the company of all the accused persons at about 4 p m. on 14-7-1983 at Jamua Hat. He further alleged that he had gone to the house of one Kamakhya Narain Vaidya at Giridih and from there he came to learn from his minor daughter about the discovery of his fathers dead body at the bank of the river Usri at Kritaniayaghat. 14. He further alleged that he had gone to the house of one Kamakhya Narain Vaidya at Giridih and from there he came to learn from his minor daughter about the discovery of his fathers dead body at the bank of the river Usri at Kritaniayaghat. 14. He further sought to prove thut the Bhabhi of appellant, Lilo Mahto had executed a deed of gift in respect of a land in favour of his father and allegedly in relation thereto there was a dispute. He further stated that Terali Mian had also some dispute with the family as his grand father, Dali Mahto allegedly sold some land in favour of Saheh Main, brother of the appellant, Terali Mian and he said purchaser began posses- sing more than that that was sold to him and his father had got back possession of the extra land which came in possession of the elder brother of Terali Mian. With regard to Basarat Mian, be said that he had an illicit relationship with the wife of Lilo Mahto for which his father used to protest. 15. In view of the fact that PW 2 is a hearsay witness, it is not necessary to consider his evidence at all. PW 5 stated that on a Thursday, he saw the deceased at Jamua Hat accompanied by all the accused persons. Allegedly, when he bad been talking with the deceased, all the accused persons went towards a mango tree and held consultations amongst themselves. Allegedly, he asked his cousin to come with him but the accused persons did not allow him to accompany him. He further supported the PW 8 to the effect that he had come to his house in search of his father and then he told the aforementioned facts to him. 16. PWs 1, 4 and 7 merely stated the dead body of the deceased. In this view of the matter, their evidences are of not much importance, 17. However, it may be mentioned that before the police, PW 4 gave a statement that he had seen the deceased going with Basarat Mian, Lilo Mahto to Jamua Hat but he resiled from his earlier statement and thus he was declared hostile. 18. PW 7 also stated that the deceased left his house for going to Jamua Hat and thereafter, he was not seen. 19. 18. PW 7 also stated that the deceased left his house for going to Jamua Hat and thereafter, he was not seen. 19. In view of the fact that the death of the deceased has not been disputed, it is also not necessary to consider the evidence of PW 9, who had proved the post-mortem report in absence of Dr. K. P. Verma, who himself was at the relevant time admitted to All India Institute of Medical Science. 20. From the conspectus of the evidence as mentioned hereinbefore, the circumstantial evidence which have been brought on records are (A) Basarat and Tulsi came to the residence of the deceased and on pretext of purchasing the cattle on credit took him to Jamua Hat. (B) The deceased was seen at Jamua Hat at 4. p.m. on 14-7-1983. (C) PW 5 allegedly asked the deceased to return to his house to which the accused persons objected. (D) The appellants were seen holding conversations beneath a mango tree. 21. The learned counsel appearing on behalf of the appellants submitted that the circumstantial evidences aforementioned are not sufficient to uphold the judgment of conviction passed as against the appellants. 22. According to the learned counsel, even the motive on the part of the appellants to kill the deceased has not been proved It was further submitted that the only evidence against him is said to be that the deceased was last seen in their company but that by itself is no ground for uphelding the judgment of conviction. 23. In this appeal, there is no eye-witness to the occurrence. The prosecution has brought in certain circumstances in order to prove the guilt. 24. It is now well settled that when the prosecution case rests upon the circumstantial evidence alone, it must satisfy the following conditions : (i) The circumstances from which the conclusion of guilt is to be drawn, must be fully established. (ii) The circumstances should be of a definite tendency and unerringly point towards the guilt of the accused. (iii) The circumstances taken cumulative, should form a chain so complete that there is no escape from the conclusion that in all human probability the crime was committed by the accused and none-else. (iv) The circumstantial evidence in order to sustain conviction must be complete incapable of explanation of any other hypothesis except the guilt of the accused persons. (iii) The circumstances taken cumulative, should form a chain so complete that there is no escape from the conclusion that in all human probability the crime was committed by the accused and none-else. (iv) The circumstantial evidence in order to sustain conviction must be complete incapable of explanation of any other hypothesis except the guilt of the accused persons. (v) The circumstantial evidence should not only be consistent to the guilt of the accused but should be inconsistent with his innocence. 25. In these appeals, the only evidence which can be said to have been firmly brought on record is that the deceased was last seen in the company of the accused persons. 26. It is now well-known that only because the deceased was last seen in the company of the accused persons is by itself does not lead to a proof of guiit as against them. 27. However, in these appeals, evea this part of the evidence has not been fully established. 28. It is true that FWs 2, 7 and 8 have stated in their depositions. that the deceased left his house in the company of the appellants, Basarat and Tulsi Bhogta ; but Tulsi has been acquitted by the leamed trial court Similarly, the evidence that the deceased was last seen with all the accused persons had come from the mouth of PW 5, who also testified the presence of Tulsi Bhogta as also Tikar Bhogta. Both the aforementioned persons have been acquitted by the learned court below, on the ground that both of them had been seen by PW 5 himself working in their field throughout the day. 29. Thus, it is evident that PW 5 also intended to implicate falsely two other persons. 30. It is, therefore, to be borne in mind that according to the PW 5, all of them were seen in a Hat. Only because while PW 5 was talking with the deceased, the appellants had been talking amongst themselves by itself cannot be the pointer to the allegation of conspiracy of all the accused persons to commit the murder of Somar Mahto, deceased. 31. Further, in a Hat, the chance of the appellants having met the deceased per chance cannot be ruled out. 32. Even the motive on the part of the appellants to commit murder of the deceased does not appear to be common. 31. Further, in a Hat, the chance of the appellants having met the deceased per chance cannot be ruled out. 32. Even the motive on the part of the appellants to commit murder of the deceased does not appear to be common. It appear unlikely to us that owing to different motives, the appellant would act jointly and even the deceased would accompany all of them without any hitch whatsoever In order to help them in purchasing the cattle on credit. 33. It farther appears surprising that if appellant, Basarat Mian had illicit relationship with the wife of Lilo Mahto, still he conspired to do away with the deceased with him. 34. So far as the appellant Terali Mian is concerned, the dispute is said to have been by and between the deceased and his elder brother. 35. The learned court below has taken into consideration another circumstance that the appellants had tried to flee away from their house. This purported circumstance has not been put to the appellants at all in their examination under Section 313 of the Code of Criminal Procedure and thus the said circumstances could not have been used against them. 36. In Makhan Singh V/s. The State of Punjab, AIR 1988 SC 1705 : 1989 East Cr C 156 (SC), the Supreme Court held that some evidence should be brought on record that no other persons connected with the deceased had seen him after he was last seen with the accused persons. 37. In Kama Behera V/s. The State of Orissa, AIR 1987 SC 1507 , the Supreme Court held: "As discussed above the only circumstance which could be said to have been established is of his being with the deceased in the evening and on that circumstance alone the inference of guilt could not be drawn especially in the circumstances of the case where one another accused person from whom an instrument of offence was recovered, who had a grudge against the deceased has been let off." 38. In these cases also, as indicated hereinbefore, two of the accused persons had been let off although, one of them allegedly took a part in accompanying the deceased to accompany the appellants to Jamua Hat. 39. In these cases also, as indicated hereinbefore, two of the accused persons had been let off although, one of them allegedly took a part in accompanying the deceased to accompany the appellants to Jamua Hat. 39. Taking thus all facts and circumstances into consideration and particularly, in view of the fact that the evidence on part of the PW 5 has been disbelieved by the learned court below itself, the prosecution cannot be said to have brought home the charge of murder of the deceased Somar Mahto beyond all reasonable doubts as against the appellants. 40. In the result, both these appeals are allowed. The judgment and conviction passed by the learned court below is set aside. 41. The appellants, who are on bail are discharged from their bail bonds. R.N.Sahay, J. 42 I agree.