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2000 DIGILAW 29 (PAT)

Prayag Mahto v. State Of Bihar

2000-01-11

A.K.PRASAD, P.K.DEB

body2000
Judgment P.K.Deb and A.K.Prasad JJ. 1. This appeal has been preferred against the judgment of the conviction and sentence passed by the then 4th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 144 of 1990 whereby and where-under the convict-appellant Prayag Mahto along with another Gopal Singh had been convicted under Section 396 of the Indian Penal Code and sentenced to rigorous imprisonment for life each. 2. The prosecution case runs that a dacoity being committed at the house of informant PW 3 Brahmdeo Prasad in the intervening night between 26th and 27th September, 1989. The house of the informant is situated at village Matukdih under Kodarma P.S. The house of the informant consisted of two parts; one the old house being a khaparposh one and just contiguous to it a new house has been built having two stories. On the night of occurrence informant and his family members were sleeping in the old khaparposh house while his brother Bishun Prasad Yadav was sleeping in the upper floor of the new house and other family members were sleeping on the verandah on the ground floor of the new house. In the night just after 12 mid-night sounds of breaking up of doors and bomb blasts were heard by the informant and the family members. The informant could find that both the houses had been surrounded by 25-26 persons being armed with fire-arms and also bombs. He went up to the roof of the old house and therefrom he saw the dacoits breaking open the doors of the house and according to him he could recognise one of the dacoits as Prayag Mahto the accused-appellant. At that time also he heard gun shot fires being used by his brother Bishun Pd. Yadav from the upper floor of the newly constructed house and in course of cross-firing he could hear the voice of the wife of his brother, that his brother was shot dead by the dacoits. It is the further case of the informant that the father of the informant and one servant were also injured by the dacoits during the course of dacoity and many valuables had been looted away by the dacoits. After the dacoits left, the informant went to the new house and found his brother Bishun Pd. Yadav lying dead with fire-arm injuries and he was reported by the wife of the deceased, namely, PW 4, Mrs. After the dacoits left, the informant went to the new house and found his brother Bishun Pd. Yadav lying dead with fire-arm injuries and he was reported by the wife of the deceased, namely, PW 4, Mrs. Yashoda Devi that she could recognise two dacoits who had been entered inside the house namely the accused-appellant Prayag Mahto and Kesho Mahto. It was further stated by her that it was Kesho Mahto who had fired shot on her husband. Villagers had assembled at the place of occurrence in the early morning and then police also came after hearing the incident. It is also the prosecution case that Ajit Kumar, PW 2 nephew of the informant who was then sleeping in the verandah of the newly constructed house had also identified the accused-appellant Prayag Mahto amongst the dacoits. When police came to the place of occurrence in the morning hours P.W. 3 Brahmdeo Prasad made his fardbeyan naming Prayag Mahto to be one of the dacoits and he further stated that he would be able to recognise some other dacoits also if produced before him. On the basis of the First Information Report a case had been registered. Place of occurrence was visited and physical features of the place of occurrence had been noted down by the Investigating Officer. Inquest was held over the dead body of Bishun Pd. Yadav and for autopsy the dead body was sent by challan. During the course of autopsy PW 1, Dr. Ved Brat the Medical Officer could find that the death was caused due to the firearm injury on the temporal region of the deceased Bishun Pd. Yadav. The accused-appellant had been arrested during the course of investigation. His house was also searched but no booties could be recovered. In course of investigation the co-accused Gopal Singh was also apprehended and a T.I.P. was held wherein the co-accused was also identified by some of the family members of the informant. After charge-sheet was filed under Section 396 of the IPC the case was committed to the Sessions and charges were framed under Section 396 of the IPC vide order dated 24.4.1991 before the trial Court. When the charge was read over and explained to the accused-persons they pleaded not guilty. Defence case as is appearing from the materials on record is nothing but totally denial of the prosecution case and of false implication. When the charge was read over and explained to the accused-persons they pleaded not guilty. Defence case as is appearing from the materials on record is nothing but totally denial of the prosecution case and of false implication. During the course of trial, prosecution side examined as many as nine witnesses. Out of them three are eyewitnesses to the occurrence, namely, PW 2, Ajit Kumar the nephew of the informant, PW 3 Brahmdeo Prasad the informant and the eye-witnesses to the occurrence, PW 4 Mrs. Yashoda Devi sister-in-law of the informant and wife of deceased Bishun Pd. Yadav who was killed in the incident. PW 5 Umesh Kumar has just been tendered. PW 6 Ramswaroop Bhagat is a seizure witness. PW 7 Ganga Pd. Sharma had been tendered. PW 8 Pashupati Nath Singh is the Investigating Officer and PW 9 Ram Chandra is the Judicial Magistrate who had conducted the TIP wherein the co-accused Gopal Singh had been identified by some of the inmates of the informant. PW 1 Dr. Ved Brat is the medical officer who held autopsy over the dead body of Bishun Pd. Yadav. After considering the evidence on record the learned trial Court came to the finding that the prosecution could be able to prove the charge against both the accused-persons and hence convicted them and sentenced them as mentioned above. It has already been mentioned that a defence has got no specific case except that of denial of the prosecution case and of false implication. The other convict appellant Gopal Singh has not preferred any appeal. Only Prayag Mahto has preferred appeal against the conviction and sentence as mentioned above. 3. The whole prosecution case pivots round the identification of the accused-appellant, during the course of dacoity by the three family inmates as already mentioned above i.e. PWs 2, 3 and 4. The convict-appellant Prayag Mahto is admittedly a close door neighbour of the informant as he had his house just opposite to that of the informant intervened by a road. It is also an admitted fact that the informant and his family members had got enmity with Prayag Mahto since prior to the occurrence as litigations were going on between the parties on land dispute. In the light of such backdrop the prosecution case regarding identification is required to be considered. It is also an admitted fact that the informant and his family members had got enmity with Prayag Mahto since prior to the occurrence as litigations were going on between the parties on land dispute. In the light of such backdrop the prosecution case regarding identification is required to be considered. PW 2 Ajit Kumar stated in his evidence that while the dacoits were making attempts to break open the gate he woke up and had seen the dacoits who were armed with fire-arms and bombs. He got himself hidden inside his cot and from there he could identify one of the dacoits, namely, Prayag Mahto but he did not state as to from what position he could identify the accused-appellant and as to what act the accused-appellant was doing at the time of identification/recognition. It was stated that a lantern was burning but no such lantern has been seized by the Investigating Officer. Whether it was possible in the dark-night by the light of the lantern which was allegedly burning in the verandah the dacoits could be identified at a distance who were then outside the gate, has not been explained by this witness and very peculiarly this witness has stated that he has got reported of his identification to the informant PW 4. 4. PW 3 Brahmdeo Prasad stated that after hearing the sound of bomb blast and breaking of the gate he woke up and then went up his roof of the old house which was admittedly a khaparposh and therefrom he could identify one of the dacoits as Prayag Mahto. He has also not stated as to how Prayag Mahto was participating in the dacoity. Just a vague statement has been made that amongst the dacoits who were 25-26 in numbers he could recognise Prayag Mahto. It was a dark night and he has not stated the means of recognition by which he could recognise Prayag Mahto. This witness has further stated regarding the admitted enmity between the accused-appellant and the informant party. He has also stated regarding the fact that Prayag Mahto did not visit his house although other villagers had visited his house in the morning hours after the dacoity was committed and this Prayag Mahto being neighbour had also not joined the party who had taken the dead-body. He has also stated regarding the fact that Prayag Mahto did not visit his house although other villagers had visited his house in the morning hours after the dacoity was committed and this Prayag Mahto being neighbour had also not joined the party who had taken the dead-body. Thus, it appears from such evidence that PW 3 Brahmdeo Prasad had strong doubt and suspicion that Prayag Mahto must have hands in such dacoity and perhaps for that reason he had stated that he could identify Prayag Mahto also amongst the dacoits. Very peculiarly enough this witness has further stated that although the villagers came to the place of occurrence in the morning hours he did not disclose the name of Prayag Mahto to the villagers. PW 4 Mrs. Yashoda Devi stated that she could identify Prayag Mahto who had entered inside the house by breaking the wall. But she did not state anything else as to how Prayag Mahto participated in the dacoity. Her specific statement is that she could recognise another dacoit as Kesho Mahto who had fired on her husband and according to her soon after the occurrence she had reported the names of dacoits to her brother-in-law the informant Brahmdeo Prasad but peculiarly enough Brahmdeo Prasad has not named the other dacoits Kesho Mahto either in his evidence or in the first information report. There is no explanation to that effect. There were two injured witnesses as per admission from the side of the informant i.e. his father and a servant in the hands of the dacoit. But none of those injured persons had been examined from the side of the prosecution and no explanation has been given. Those injured witnesses could be best persons to support the so-called identification of the accused-appellant amongst the dacoits. No independent witness has been examined and practically the examination of independent witnesses does not arise also when the informant himself has stated that he did not disclose the name of identified persons amongst the dacoit before the villagers or to the independent persons. Why he has not disclosed so had not been explained. This creates a doubt on the whole story of identification itself as mentioned above. Then it is an admitted fact that there is animus between the accused-appellant and the informant parties and when enmity is admitted then close scrutiny is necessary regarding the evidence of interested witnesses. Why he has not disclosed so had not been explained. This creates a doubt on the whole story of identification itself as mentioned above. Then it is an admitted fact that there is animus between the accused-appellant and the informant parties and when enmity is admitted then close scrutiny is necessary regarding the evidence of interested witnesses. Herein in the present case except the interested witnesses none else have been examined and none else had also supported the so-called identification. It also seems to be unreasonable and unbelievable that a next door neighbour would come up to commit dacoity without concealing his face rather exposing the face for the purpose of identification to the persons who had animus with him. Moreover although the house of the accused-appellant has been searched no recovery of booties could be there. Specific act of the accused-appellant had not been attributed in the commission of the dacoity by any of the witnesses. 5. Thus on close scrutiny of the evidences on record we come to the conclusion that there was definitely a dacoity committed at the house of the informant but regarding identification of the accused appellant in course of dacoity remains a doubtful one, reasons being ; (i) there was admitted enmity between the parties (ii) means of recognition is doubtful and (iii) the lantern as stated by PW 2 had not been seized, (iv) the flashing of torchlight by PW 4 for the purpose of identification had also not been seized, (v) non-reporting of such identification to independent witnesses, (vi) the so-called disclosure by PW 4 had not been mentioned by PW 3 either in evidence or in fardbeyan, (vii) non-recovery of any booty soon after the dacoity on search from the house of the accused appellant. In such circumstance we find and hold that the prosecution could not be able to prove the guilt of the accused-appellant beyond all reasonable doubt and hence he is entitled to get benefit of doubt. Accordingly we allow the appeal setting aside the judgment of conviction granting benefit of doubt in favour of the accused-appellant. He may be released forthwith if he is not wanted in any other case.