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2000 DIGILAW 606 (PAT)

Lalo Mahto @ Lalo Yadav v. State Of Bihar

2000-04-20

M.L.VISA

body2000
Judgment M.L.Visa, J. 1. This appeal is directed against the judgment and order dated 26.6.1989 passed by 3rd Additional Sessions Judge, Nawadah, in Sessions Trial No. 119 of 1987/65 of 1984, convicting and sentencing the appellant Lalo Mahto alias Lalo Yadav to undergo RI for three years under Section 436 of the Indian Penal Code (in short, IPC) and remaining appellants to undergo RI for one year each under Section 147, IPC. 2. The case of the prosecution, in short, is that on 8.7.1978 at about 9-10 a.m., all the appellants along with co-accused Dwarika Yadav (since dead), variously armed with lathi, bhala, garansa, etc. came to the darwaja of the house of informant Raj Kumar Mochi (PW 7) and appellant Baso Yadav ordered his companions to kill the informant on which the informant and his family members ran towards north leaving their house. Thereafter appellant Lalo Mahto and co-accused Dwarika Yadav set the thatched roof of eastern room of the house of informant on fire and all the appellants started brandishing their weapons. When the room of the house of the informant was completely burnt the appellants giving threatening to the informant left the place of occurrence. It is alleged that the room which was set on fire by the appellants was in occupation of the father of the informant and because of fire-bed, paddy, wheat etc. which were kept in the room were burnt to ashes. About the motive of occurrence it is alleged that there was land dispute between the informant and appellants and a proceeding under Section 144, Cr PC was initiated in which notices were served on the appellants. The informant out of fear did not go to police station immediately after the occurrence and on the same day at about 9 p.m. getting opportunity he proceeded to police station but met the police in the way and at about 10 p.m. on the date of occurrence his fardbeyan (Ext. 2) was recorded by ASI M. Hassan (not examined) in his village. An FIR (Ext. 3) has drawn under Sections 144 and 436, IPC against the appellants and co-accused Dwarika Yadav. After investigation the police submitted charge-sheet against the appellants and co-accused Dwarika Yadav under Sections 144/436, IPC. 2) was recorded by ASI M. Hassan (not examined) in his village. An FIR (Ext. 3) has drawn under Sections 144 and 436, IPC against the appellants and co-accused Dwarika Yadav. After investigation the police submitted charge-sheet against the appellants and co-accused Dwarika Yadav under Sections 144/436, IPC. Before hearing on the matter of charge, co-accused Dwarika Yadav died and thereafter charge under Sections 436/149, IPC against all the appellants and a separate charge under Section 436, against appellant Lalo Mahto were framed. The appellants denied the charges and pleaded not guilty and their case as it appears from the examination of witnesses on their behalf as well as from the trend of cross-examination of prosecution witnesses is that at the relevant time, informant had no house in the village and the appellants have been falsely implicated in the case on account of enmity. After trial the Court below found the appellant Lalo Mahto guilty under Section 436, IPC and remaining appellants guilty under Section 147, IPC and convicted and sentenced them as indicated above. 3. Altogether 8 witnesses have been examined on behalf of the prosecution. Raj Kumar Mochi (PW 7) is the informant. Ram Sagar Prasad (PW 8) is the formal witness who has proved formal FIR (Ext. 3) and seizure list (Ext. 4). Bindeshwar Ravidas (PW 3) and Prasadi Ravidas (PW 4) are the hearsay witnesses and they are also witnesses on the seizure list (Ext. 4), which was prepared by police. Bindeshwar Ravidas (PW 3) has proved his signature (Ext. 1) on the seizure list. Kishun Ravidas (PW 5) has not supported the case of prosecution and he has been declared hostile. Radhe Mochi (PW 1), Bhola Ravidas (PW 2) and Jagdeo Ravidas (PW 6) are said to be the eye-witnesses. 4. Raj Kumar Mochi (PW 7), the informant, in his evidence, has stated that at the time of occurrence he was sitting in the bungalow of Etwari Das when he at about 9.30 a.m. saw the appellants along with co-accused Dwarika Yadav coming towards his house armed with lathi, bhala etc. and saying that they would kill him and then he ran towards north and thereafter appellant Lalo Mahto and co-accused Dwarika set the east southern corner of his house on fire as a result of which articles such as, rice, wheat, pulse, cot etc. kept in his house were burnt to ashes. and saying that they would kill him and then he ran towards north and thereafter appellant Lalo Mahto and co-accused Dwarika set the east southern corner of his house on fire as a result of which articles such as, rice, wheat, pulse, cot etc. kept in his house were burnt to ashes. He has further stated that after the occurrence he went to police station where he lodged the FIR. In cross-examination he has admitted that he was having litigation with the appellants since last 8 to 9 years. Radhe Mochi (PW 1), Bhola Ravidas (PW 2) and Jagdeo Ravidas (PW 6) have also stated that the house of informant was set on fire as a result of which articles such as, rice, wheat, cot etc. kept in the house were completely burnt. Radhe Mochi (PW 1) has said that it was co-accused Dwarika Yadav who set the house of the informant on fire. Bhola Ravidas (PW 2) and Jagdeo Ravidas (PW 6) have said that appellant Lalo Mahto and co-accused Dwarika set the house of informant on fire. Radhe Mochi (PW 1) is cousin of informant Raj Kumar Mochi, which has been admitted by informant himself in para 3 of his deposition. Radhe Mochi (PW 1) in his cross-examination has admitted that his uncle Keshar Mochi, in the year 1977 had filed a case of theft against some of the appellants. He has further admitted that he himself had filed a case against some of the appellants and his another uncle Jagdeo Ravidas in the year 1978 had filed a case of assault and theft against some of the appellants. In para 4 of his evidence, he has further admitted that he is having litigation with appellants since 9 years in respect of the land. This admission by him clearly establishes that he is on inimical terms with the appellants. Bhola Ravidas (PW 2) in para 5 of his evidence has admitted that informant is his cousin. Jagdeo Ravidas (PW 6) who is the father of informant has said that at the time of occurrence, he was sitting in the palani of one Etwari Das. 5. Bhola Ravidas (PW 2) in para 5 of his evidence has admitted that informant is his cousin. Jagdeo Ravidas (PW 6) who is the father of informant has said that at the time of occurrence, he was sitting in the palani of one Etwari Das. 5. In view of the aforesaid facts, I find that out of four eye-witnesses to the occurrence, Raj Kumar Mochi (PW 7) is the informant, Jagdeo Ravidas (PW 6) is the father of informant, Bhola Ravidas (PW 2) is the cousin of informant and Radhe Mochi (PW 1) is on inimical term with the appellants. Besides this, the defence has drawn the attention of Bhola Ravidas whether in his earlier statement, he had stated that the occurrence took place on a Saturday and the appellants were giving out that they would kill the informant and set the house on fire. Similarly a suggestion to Jagdeo Ravidas was also given by defence whether in his earlier statement, he had stated that appellant Lalo Yadav and co-accused Dwarika Yadav set the house of informant on fire. The prosecution has not examined the I.O. and in absence of his examination, the defence could not get opportunity of bringing on record the contradictions in the evidence and earlier statements of witnesses inspite of the fact that it has drawn the attention of prosecution witnesses as stated above. This has definitely caused prejudice to the appellants. 6. The informant in his fardbeyan has stated that he immediately after the occurrence could not go to police station because of fear of appellants but on the same day at about 9 p.m. getting the opportunity he proceeded to police station but met the police officer in the way. In the fardbeyan it is also stated that his father had already gone to police station for reporting the matter. From the fardbeyan (Ext. 2) it appears that it was recorded on 8.7.1978, i.e. on the date of occurrence at 22 hours at the village of informant but in para 7 of his evidence, the informant has stated that on the day of occurrence he went to police station where he lodged FIR at 6-7 p.m. He clearly says that Bhola Ravidas (PW 2) had accompanied him to police station where he met the officer-in-charge who recorded his statement. Bhola Ravidas (PW 2) has not supported this version of informant, but he has stated that on the next day at about 11 a.m., the police had come to the village for inquiry about the occurrence and his statement was recorded then only. He has further stated that burnt articles were seized by the police but he does not know whether any seizure list was prepared or not. The Court below has noticed this discrepancy in the fardbeyan and evidence of informant but then on the point of giving information to police about the occurrence has not found it against the case of prosecution holding that it is just possible that informant moved the police, reached the police station and delivered his statements in the village on arrival of police officer. I fail to agree with this finding of the Court below. It is the specific evidence of the informant that on the day of occurrence in the evening at about 6-7 p.m., he went to police station along with Bhola Ravidas (PW 2) and lodged the FIR which was recorded by police. But neither the fardbeyan (Ext. 2) nor the evidence of Bhola Ravidas (PW 2) supports the case of prosecution on this point. Notwithstanding this discrepancy and non-examination of I.O. who could have been a best witness to give the objective evidence on the point of arson. I find that the witnesses examined in this case are closely related to each other and were on inimical terms with appellants. Not a single independent witness has been examined to support the case of prosecution. All these facts taken together do not lead to a conclusion that the prosecution has proved its case beyond all reasonable doubts. The judgment and order of the Court below convicting and sentencing the appellants cannot be sustained on such type of evidence. 7. In the result, this appeal is allowed. The judgment and order of the Court below convicting and sentencing the appellants are set aside. The appellants who are on bail are discharged from the liability of their bail bonds.