Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 106 (PAT)

Bindeshwari Mahto v. State Of Bihar

2000-01-20

ASHOK K.PRASAD, P.K.DEB

body2000
Judgment PRASUN KUMAR DEB, J. 1. These two appeals have been preferred against the common judgment of conviction and sentence passed by the then Second Additional Judicial Commissioner, Ranchi in Sessions Trial No. 81/1990 (114/91) whereby and where under all the six appellants in both the appeals had been convicted under Sections 302/149 of the Indian Penal Code and sentenced to rigorous imprisonment for life. Further, appellant Bindeshwar Mahto in Cr. Appeal No. 165/93 (R) had been convicted under Section 148 of the Indian Penal Code and sentenced to rigorous imprisonment for two years. Appellants, Pachhu Mahto and Dhupnath Mahto had been convicted under Section 147 of the Indian Penal Code and sentenced to R.I. for one year. Dhupnath Mahto had further been convicted under Section 323, IPC and sentenced to R.I. for one year. The other appellants Jhari Mahto had died during the pendency of this appeal and, as such, appeal has abated against him. In the other appeal, i.e., Criminal Appeal No. 171 of 1993 (R) Appellant Paklu Mahto had been further convicted under Section 148, IPC and sentenced to R.I. for two years and Balram Mahto had been convicted under Section 147 of the IPC and also under Section 323, IPC and sentenced to R.I. for one year each. In the appeal at the time of admission all the four appellants in Criminal Appeal No. 165 of 1993 (R) had been granted bail. In respect of two appellants in Criminal Appeal No. 171 of 1993 (R), they had been granted provisional bail for some time but they are in custody during the hearing of these appeals. As both the appeals have been preferred against the common judgment, they have been heard together analogous. 2. In total 10 persons had faced trial before the Sessions Court. Four other accused-persons, namely, Dhano Mahto, Madho Mahto, Narayan Mahto and Udho Mahto have been granted acquittal of all the charges as no evidence was there from the side of the prosecution against them. Both the accused and the prosecution party hailed from the same village Garu situated within Kanke Police Station in the district of Ranchi. The occurrence had also taken place within the village in the Gali leading to the house of the accused Jhari Mahto and Balram Mahto who are father and son admittedly. Both the accused and the prosecution party hailed from the same village Garu situated within Kanke Police Station in the district of Ranchi. The occurrence had also taken place within the village in the Gali leading to the house of the accused Jhari Mahto and Balram Mahto who are father and son admittedly. The case of the prosecution, in brief, is that on 15-8-1988 at about 7.45 p.m. one Bhubneshwar Mahto a counsel of the Informant Sonelal Mahto had gone to the shop of one Ghanshyam Mahto in the same village for some purchase. At about 8 p.m. Parasnath Mahto P.W. 2 alleged to have informed the informant at the house of the informant that accused Ghupnath Mahto, Bindeshwar Mahto, Narayan Mahto, Dhaniram Ali, Dhana Mahto, Balram Mahto, Paklu Mahto and Pachu Mahto were assaulting Bhubneshwar Mahto by iron pipes and Danta behind the house of one Ganesh Mahto. Hearing this, the deceased Babulal Mahto rushed there along with Parasnath Mahto but within ten minutes, Parasnath Mahto again rushed running to the house of the Informant stating that all the accused-persons as mentioned above had assaulted Bhubneshwar Mahto and fell him to the ground and then they dragged Babulal Mahto assaulting him to the house of accused Balram Mahto and were assaulting him inside the house under closed doors and Babulal Mahto was raising alarm and cries from inside the bolted doors. On the aforesaid information, Sonelal Mahto informant went to the house of accused Balram Mahto along with Maino Mahto wife of Babulal Mahto, his own wife Ratio Devi and sister Kandari Devi and when they reached there they found Bhubneshwar Mahto lying injured behind the house of Ganesh Mahto near the house of accused Balram Mahto. On being asked, Bhubneshwar Mahto told them that accused Ghupnath Mahto and others had assaulted him by Balua and lathi, etc. Then the Informant and his companions went to the doors of the accused Balram Mahto and asked him to open the doors and release Babulal Mahto but the accused Balram Mahto shouted from inside the house that Babulal Mahto was not there. In the meantime, other accused-persons arrived there being armed with lathi and Danta and assaulted the informant and his companions, as a result of which informant and his companions fled away and reported one Ghanshyam Mahto, Lalko Mahto, Shyamlal Mahto and Fulinder Mahto about the alleged occurrence. In the meantime, other accused-persons arrived there being armed with lathi and Danta and assaulted the informant and his companions, as a result of which informant and his companions fled away and reported one Ghanshyam Mahto, Lalko Mahto, Shyamlal Mahto and Fulinder Mahto about the alleged occurrence. Then, the Informant after a while again went to the house of accused Balram mahto along with the above named persons and tried to get the doors of the house opened but accused Balram Mahto, Dhana Mahto and Jhari Mahto did not open the doors. Then, the informant and others peeped in through the doors and in the light of torch, they saw Babulal Mahto lying dead in the Dheba of the house of accused Balram Mahto in a pool of blood. Then, the informant asking the villagers to keep a watch there, want to village Sukur Hutu reported one Madhulal Mahto another Babulal Mahto and Jidwalvan Munda about the occurrence and along with them went to the police station and lodged information by giving a fardbeyan wherein above details of the occurrence had been mentioned. 3. On the basis of the fardbeyan, a First Information report was lodged and the Police went to the spot on that very night and recovered the dead body of Babulal Mahto from the house of Jhari Mahto after, breaking the doors and arrested the accused-persons who were hiding on the roof of the house. Inquest was held over the dead body and the same was sent for autopsy by challan. The injured prosecution witnesses had also been sent to the doctor for examination of their injuries. From the place of occurrence, i.e., from inside the house of Jhari Mahto blood-stained Balua, lathi and blood-stained earth, etc. had been seized in presence of witnesses and then charge-sheet was submitted in the case against ten accused-persons including the accused appellant under Sections 148/147/302/307/323/149 of the IPC and on commitment charges were framed against all the ten accused-persons under Sections 148/302/149 of the IPC and under Section 307 and 323, IPC without any aid of Section 149 of the IPC Said charges were framed on 16-6-1990 and when the same was read over and explained to the accused-persons they pleaded not guilty. It may be mentioned here that in the incident Balram Mahto one of the accused had also been injured and he was also examined by the same doctor who had examined the injured prosecution witnesses. A cross-case was also lodged against the prosecution party and the same Investigating Officer had investigated the cross-case also and submitted charge-sheet against some of the prosecution parties. 4. For and on behalf of the prosecution as many as 11 witnesses had been examined. Out of them P.W. 1 Tokan Mahto, father of deceased Babulal Mahto, P.W. 3 Maino Devi wife of Informant, Sonelal Mahto, P.W. 4 Ratho Devi another wife of Informant are the main eye-witnesses of the occurrence. P.W. 2 Parasnath Mahto, who is the first person, who had heard about the starting of the incident from Bhubneshwar Mahto and who informed the occurrence to the informant party has not supported the prosecution case and has turned hostile. P.W. 5 Mahendra Mahto is said to have informed about the occurrence to the informant but he was not cited as witness in the fardbeyan. This witness has just been tendered. P.W. 6 Bharat Mahto is the witness of seizure of weapons at the place of occurrence but this witness had stated that no seizure was made in their presence and he along with another was made to sign in the seizure-list on being threatened by the Police and he has not seen the actual seizure of weapons from the place of occurrence. P.W. 7 Babulal Mahto was a witness to the fardbeyan but he has not supported the contents of the fardbeyan as he stated that he was sitting outside the Police station when fardbeyan was being made by the Informant Sonelal Mahto. P.W. 8 Dr Saroj Kumar had held post-mortem examination over the dead body of Babulal Mahto and found as many as 11 injuries on the persons of the deceased which may be reproduced as below : (i) 10 x 3 cms on back of neck including right lateral side cutting soft tissues, blood vessels, 4th cervical vertebra and spinal chord. (ii) 5x2 cms on left chest, front near medical end of left clavicle cutting left clavicle bone. (iii) 4 x 1/2 cms on left clavicular region cutting left clavicle partially. (iv) 5 x 21/2cms. x skin deep on front part root of neck. (v) 4 x 2 cms. (ii) 5x2 cms on left chest, front near medical end of left clavicle cutting left clavicle bone. (iii) 4 x 1/2 cms on left clavicular region cutting left clavicle partially. (iv) 5 x 21/2cms. x skin deep on front part root of neck. (v) 4 x 2 cms. x soft tissues on right shoulder, top. (vi) 2 x 1 cms. x soft tissues on right shoulder, front. (vii) 4 x 1/2 cms. x soft tissues on back of right- palm. (viii) 4 x 1 1/2 cms. x soft tissues on the back of right shoulder. P.W. 8 also found the following ante mortem lacerated wounds on the dead body : (i) 3 x 1 cms x Soft tissues on lateral side of forehead near hair margin. (ii) 3 x 1 1/2 cms x soft tissues on right eye-brow, medical side. (iii) 4 x 2 cms x bone deep on left side of chin with fracture of left side of mandible bone. 5. P.W. 9 Dr. B.N. Prasad had examined P.W. 3 and P.W. 4 and also one of the accused Balram Mahto and on the person of all the injured. He could find only simple injuries being caused by blunt weapons. P.W. 10 Jagnath Ram is the Police personnel who proved formally the First Information Report. P.W. 11 Anant Kumar Yadav is the Investigating Officer in the case. For and oh behalf of the defence one D.W. Kaleshwar Mahto has been examined and as per his evidence the prosecution party were aggressor and came to the place of occurrence being armed with lathi Danta, etc. and started assaulting the accused-persons in which Balram Mahto was injured and then both parties entered into free fights. I have already mentioned that defence has practically admitted the occurrence but according to them prosecution parties were aggressor and that there was enmity between the parties is also admitted since before. It should also be mentioned here that Informant Sonelal Mahto has also been murdered subsequently as is coming from the evidence and, as such, it appears that the enmity between the parties are still continuing. 6. It should also be mentioned here that Informant Sonelal Mahto has also been murdered subsequently as is coming from the evidence and, as such, it appears that the enmity between the parties are still continuing. 6. On scrutiny of the evidence on record and after hearing the arguments of both the parties, learned Sessions Judge came to the finding that the prosecution could be able to prove the guilt of six accused-persons in which they are the appellants in this case and the other four accused-persons had been acquitted as no evidence could be brought against them by the prosecution. He had further held that the charge under Section 307, IPC could not be proved and that the prosecution party was the aggressor as deposed from the side of the defence had not been accepted by the learned Court below and relying on the evidence of P.Ws 1,3 and 4 arrived at the decision of conviction and sentenced the accused-persons as already mentioned. 7. Mr A.M. Sahay, learned counsel appearing for and on behalf of the appellants has assailed the impugned judgment on the following grounds : (i) When it has been brought on record that on the same incident, there is case and cross-case and in the cross-case after investigation by the same Investigating Officer has submitted charge-sheet against the prosecution party also and when there is injury on the person of one of the accused Balram Mahto then the defence version is more probablised than the prosecution version when no independent witnesses are coming forward to support the prosecution case. (ii) Bhubneshwar Mahto who was said to be the first person being attacked by the accused-persons and sustained severe injuries and reported the initiation of the incident to the informant. Hence non-examination of Bhubneshwar Mahto and non-production of his injury report belies the prosecution story as a whole. (iii) Parasnath Mahto who had reported twice about the incident to the informant and his family members and who was at the place of occurrence at the initial stage of the occurrence has not supported the prosecution and turned hostile and, as such, the genesis of the prosecution case has been saddled probablising the defence version. (iv) The story as revealed in the fardbeyan has been embellished, embroidered and improvement being made during the course of trial which leads to doubt about the prosecution case itself. (iv) The story as revealed in the fardbeyan has been embellished, embroidered and improvement being made during the course of trial which leads to doubt about the prosecution case itself. (v) The recovery of dead body from the house of Jhari Mahto as per the story revealed during the course of trial totally belies the prosecution case as per fardbeyan that deceased Babulal Mahto was dragged to the house of Balram Mahto and there he was assaulted to death. 8. Mr. M. Tewari, learned counsel appearing for and on behalf of the State by referring to the evidence on record has supported the impugned judgment and submitted that some discrepancy here and there would not belie the prosecution case and hence the conviction arrived at is proper legal and just. 9. In the light of the submissions being made above the impugned judgment and the materials on record have been scrutinised by me carefully and in depth. 10. As per the fardbeyan story besides the family member there were other villagers who came to the place of occurrence during the midst of the occurrence itself and also after the occurrence and their names specifically appeared in the fardbeyan and also in the evidence of P.W. 1 Tokan Mahto but for the reasons best known none of those witnesses have been examined from the side of the prosecution. No explanation have been given as to why those independent witnesses have not been examined. The importance of examination of independent witnesses becomes more necessary when there is divergent story of the occurrence by the parties. According to the prosecution, the occurrence first started when the accused-persons started + beating Bhubneshwar Mahto then Bhubneshwar Mahto reported about his beating to P.W. 2 Parasnath Mahto and Parasnath Mahto informed the family members of the informant at his house when informant was not in the house. Then, Babulal Mahto the deceased went to the place of occurrence whereafter he was assaulted and dragged towards the house of accused Balram Mahto. Then again P.W. 2 Parasnath Mahto informed the informant Sonelal Mahto and his family members about the further development. Then the family members of the informant including P.Ws. 3 and 4 and P.W. 1 came to the place of occurrence. Informant reached the place of occurrence after getting information when he was at the house of another. Then again P.W. 2 Parasnath Mahto informed the informant Sonelal Mahto and his family members about the further development. Then the family members of the informant including P.Ws. 3 and 4 and P.W. 1 came to the place of occurrence. Informant reached the place of occurrence after getting information when he was at the house of another. Informants reaching at the place of occurrence is at the third stage. All the stories prior to the coming of P.Ws. 3, 4 and P.W. 1 at the place of occurrence had not been proved by any cogent evidence. Informant is dead by this time. P.W. 2 Parasnath Mahto did not support the prosecution case and became hostile. Bhubneshwar Mahto who was assaulted at the place of occurrence and the occurrence started on assaulting him by the accused-persons has not been examined nor his injury report has been proved. So the genesis of the whole occurrence could not be proved from the side of the prosecution. The genesis is very much important in the present case, when the defence version is that the prosecution party were the aggressor and they started assaulting Balram Mahto, the accused, and then the other accused-persons had come there and there was free fighting in which both parties had sustained injuries. While the prosecution case is that the accused-persons were the aggressor when they started beating Bhubneshwar Mahto and when other persons had come, they were also assaulted. Regarding this genesis of the prosecution, case has not been proved while from the defendants side D.W. 1 has supported the defence version. Moreover, when it has come into the evidence that accused Balram Mahto sustained injuries in the same occurrence then it becomes the bounden duty of the prosecution to prove or say at least as to how Balram Mahto sustained injuries but the prosecution case is totally silent about it which creates a grave doubt regarding the manner in which the occurrence took place. Probability of the defence version in such circumstances cannot be ruled out. This aspect of the matter has not at all been considered by the learned Court below while deciding the case on the basis of evidence on record although he referred to the defence version and the probability of the same. Probability of the defence version in such circumstances cannot be ruled out. This aspect of the matter has not at all been considered by the learned Court below while deciding the case on the basis of evidence on record although he referred to the defence version and the probability of the same. There is also deviation of the prosecution case from the fardbeyan story on the vital issue as to where the deceased Babulal Mahto was assaulted to death. According to the fardbeyan story the deceased was dragged to the house of accused Balram Mahto and there he was assaulted by some of the accused-persons and when the witnesses were asking Balram Mahto to open the doors and release Babulal Mahto then other accused-persons arrived there and some of the prosecution witnesses had been assaulted but the story had been changed during the course of trial. Now, it is stated that the dead body had been recovered from the house of Jhari Mahto and the same has been confirmed by the Investigating Officer also. It is true that Balram Mahto and Jhari Mahto are father and son but they have got their separate houses in the same neighborhood and vicinity which has been confirmed by the Investigating Officer. If the dead body is found at the house of Jhari Mahto and when there is no evidence to the effect that accused-persons had shifted the dead body from Balram Mahtos. house to that of Jhari Mahtos house. Then, the whole prosecution story becomes dis-believable regarding peeping of the witnesses through the bolted doors of Balram Mahto and seeing assault on the person of the deceased by some of the accused-persons. Moreover, the seizure witnesses as already stated above had not supported the seizure of blood stained weapons from the place of occurrence. If assault was there at the house of Balram Mahto then seizure must have been from Balram Mahtos house but according to the I.O. those had been seized near the dead body meaning thereby from the house of Jhari Mahto. If assault was there at the house of Balram Mahto then seizure must have been from Balram Mahtos house but according to the I.O. those had been seized near the dead body meaning thereby from the house of Jhari Mahto. In the backdrop of such discrepancies in the prosecution case and when the genesis of the prosecution case could not be proved then the case of the defence that the prosecution party were the aggressors cannot be ruled out altogether and when the genesis is not proved then definitely the accused-persons are entitled to acquittal because it has not been specifically proved as to who had dealt with deadly blowson the person of the deceased Babulal Mahto as according to the prosecution, he was assaulted inside the bolted doors and if bolted doors are there then there is no scope to see from outside even by peeping through the doors regarding assault. 11. Now the question comes in when the occurrence is admitted and if it is taken to be true that prosecution parties were the aggressors then there was free fight between the parties. Then also conviction can be there on the individual accused-persons without roping under Section 149 of the Indian Penal Code if it could be proved that the injuries on the injured prosecution witnesses had been inflicted by individual accused-persons. It is true that PWs 3 and 4 have stated that they had been assaulted by individual accused-persons and, as such, they have been convicted under Section 323, IPC but then the question comes in whether such infliction was on the right of private defence or not as there was injury on the person of accused Balram Mahto. Thus, on deep scrutiny of the evidence on record I arrive at the finding that the prosecution could not be able to prove the genesis of the story and when there is divergent version of the occurrence by the defence. The probability of which cannot be ruled at in the nature and circumstances of the case then the conviction arrived at cannot be sustained in law and the accused-persons are entitled to acquittal on benefit of doubt. 12. In the result, both the appeals are hereby allowed and the accused-appellants are acquitted on benefit of doubt after setting aside the impugned judgment of conviction and sentence. 12. In the result, both the appeals are hereby allowed and the accused-appellants are acquitted on benefit of doubt after setting aside the impugned judgment of conviction and sentence. The accused-appellants Balram Mahto and Paklu Mahto may be released forthwith if they are not wanted in any other case and the other accused-appellants, namely, Bindeshwar Mahto, Pachhu Mahto, Ghupnath Mahto are hereby released from their bail bonds. ASHOK KUMAR PRASAD, J. 13 I agree.