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2001 DIGILAW 46 (PAT)

Surin Mistry v. State Of Bihar

2001-01-17

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. Both the appeals arise out of the judgment and order of conviction dated 17.6.1987 passed by 2nd Additional Sessions Judge, Munger in Sessions Trial No. 292 of 1983. They have been heard together and are being disposed of by this judgment. 2. The appellants of both the appeals have been convicted for the offence under Sections 302/34 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. They have further been convicted for the offence under Section 304 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. They have further been convicted for the offence under Section 201 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for three years. 3. The prosecution case as stated in the first information report is that one Kamli Mahto gave his fardbeyan on 2.9.1982 at 6 p.m. before the Assistant Sub. Inspector of Police at Medni outpost that in previous night he, Ramji Mahto and Baunu Mahto, Parmeshwar Mahto, Khopti Mahto, Banarsi Mahto and Gopi Mahto were sleeping on machan in village Abhaypur to watch maize crops. After 120 Clock in the night the accused-persons le. the appellants came out of them, Mahendra Mahto asked his brother. Ramji Mahto, to come down from the machan as his bullock had got untied. Ramji Mahto refused to come down on which Suren Mistry, Sukhdeo Mahto and Ram Charan Ram dragged him from the machan and took him on a boat. Suren Mistry tied the hand of Ramji Mahto. Sukhdeo Mistry and Anandi Mistry tied the hands of Banarsi Mahto. Thereafter, they started searching (sic) his brother, Ramji Mahto. His headless dead body was recovered at about 3 p.m. on 2.9.1982 at a distance of half K.M. from the machan. His name was tattooed on his hand and on that basis he identified the dead body of his brother. They brought the dead body. The motive of the occurrence was old enmity for land. 4. On the aforesaid fardbeyan formal first information report was drawn and investigation was taken up. On conclusion of the investigation charge sheet was submitted. On receipt of the charge sheet in the Court cognizance was taken and the case was committed to the Court of Sessions for trial. The trial Court convicted the appellants, as indicated above. 5. 4. On the aforesaid fardbeyan formal first information report was drawn and investigation was taken up. On conclusion of the investigation charge sheet was submitted. On receipt of the charge sheet in the Court cognizance was taken and the case was committed to the Court of Sessions for trial. The trial Court convicted the appellants, as indicated above. 5. The defence of the appellants was that they were innocent and were falsely implicated in the case out of previous enmity. The informant or the deceased never cultivated the land of Deoki Singh on batal The prosecution case has been concocted with a view to implicate the appellants. 6. The prosecution in support of its case examined ten witnesses. PW 1 was tendered. PW2 was declared hostile, PW 3, PW 4 and PW 7 claimed to be eye-witnesses, PW 5 is a witness to the inquest, PW 6 is the informant and claimed to be eye-witness, PW 8 is a hearsay witness, PW 9 is a doctor, who held postmortem over the dead body and PW 10 is an Advocate Clerk and is a formal witness, who proved fardbeyan, Ext. 3, and formal first information report, Ext. 4. 7. Three defence witnesses have also been examined le. DW 1, DW 2, and DW 3 to say that there was flood and the appellants were engaged in constructing barrage to protect the village at the relevant time. 8. PW 3, PW 4, PW 6 and PW 7 stated that they were on the machan at the relevant time. PW 3 is son of PW 4. PW 6 is informant and brother of PW 4, PW 7 is villager and was inimical to the appellants. The aforesaid witnesses claimed that they were sleeping on the machan at the relevant time. From the first information report it appears that there was only one machan. However, the witnesses in course of evidence stated that there were three machans and they were sitting on those machans. 9. PW 6 is brother of the deceased. He stated in his evidence that the appellants came after 120 Clock in the night. From the first information report it appears that there was only one machan. However, the witnesses in course of evidence stated that there were three machans and they were sitting on those machans. 9. PW 6 is brother of the deceased. He stated in his evidence that the appellants came after 120 Clock in the night. The appellant, Mahendra Mahto, asked Ramji Mahto, the deceased, to come down from the machan as his bullock had got untied, which he refused and thereafter it has been alleged that appellants, Mahendra Mahto, Suren Mistry, Ram Charan Ram and Sukhdeo Mahto tied the hands of the deceased and dragged him to a boat lying in a river, Baguna. After the incident the witnesses remained on the machan till morning. The conduct of PW 6 does not appear to be natural as there is no evidence on record to show that he raised alarm/searched after incident or made any effort to inform any person. 10. PW 7 is a co-villager and was mimical to the appellants. He also stated in his evidence that at the relevant time of the occurrence he woke up on hearing alarm and identified three persons, namely, Suren Mistry, Mahendra Mahto and Sukhdeo Mahto. There were other persons also but he could not identify them. The aforesaid three persons dragged the deceased, Ramji Mahto from the machan. They tied his hand and took him to the boat which was lying in the river. He categorically stated that he could not identity the other persons. However, in cross-examination the witness stated that he remained on the machan till morning. There is no evidence that he raised alarm or made any effort to go to the village and disclose the aforesaid fact to any one. Such conduct appears to be unnatural. The conduct of the witness is relevant under Section 8 of the Evidence Act. 11. PW 3 is son of PW 4. PW 3 and PW 4 both stated that they were on machan at the relevant time of the occurrence. PW 3 stated that the appellant, Mahendra Mahto, asked the deceased to come down from the machan as his bullock was untied which he refused. Thereafter, Mahendra Mahto, Suren Mistry, Sukhdeo Mahto, Ram Charan Ram and Anandi Mistry climbed on the machan and dragged the deceased. They tied his hand and took him to the boat. PW 3 stated that the appellant, Mahendra Mahto, asked the deceased to come down from the machan as his bullock was untied which he refused. Thereafter, Mahendra Mahto, Suren Mistry, Sukhdeo Mahto, Ram Charan Ram and Anandi Mistry climbed on the machan and dragged the deceased. They tied his hand and took him to the boat. The witness stated that after the incident he raised alarm and went to the village. The conduct of the witness appears to the natural but there is no evidence on the record that he disclosed about the incident to any person in the village. PW 4 also supported the evidence of PW 3. He also stated that he went to the village but there is nothing on the record to show that he disclosed about the incident to any one. Not a single witness has been examined to say that the witness disclosed about the incident even in the next morning. Such conduct does not appear to be natural. It is expected that if such incident takes place then the person who see the same would disclose about the incident to others and make effort to search. There is no evidence to the aforesaid effect on the record. More glaring fact is that the occurrence took place in the night after 12"0 Clock but no information was given to the police or any person till the fardbeyan was recorded on 2.9.1982 at 6 p.m. i.e. after 18 hours of the occurrence. 12. PW 6, the informant has stated in his evidence that chaukidar is in his village but there is nothing on the record that any information was given to the chaukidar with regard to the incident. The informant himself admitted in his evidence that police outpost is at a distance of two miles from the place of occurrence but surprisingly no information was given prior to 6 p.m. on 2.9.1982. Therefore, it is evident that there was much delay in informing the police. The delay has not been explained except that witnesses were searching the deceased but surprisingly there is no evidence that they made search in the night. The reason as has been stated for delay, in our view, is not cogent one, specially in the circumstances that there is nothing on the record to show that the witness informed about the incident to any person of the village. 13. The reason as has been stated for delay, in our view, is not cogent one, specially in the circumstances that there is nothing on the record to show that the witness informed about the incident to any person of the village. 13. The aforesaid aspect of the matter has also been supported by the evidence of the doctor, PW 9. who held postmortem over the dead body on 3.9.1982. He found injuries on the hand and has opined that injuries on the hands were postmortem and not antemortem. The aforesaid evidence gives an impression that, in fact, no body has seen the occurrence of taking away the deceased and after recovery of the dead body they have concocted the case that the appellants tied the hands of the deceased and took him on the boat to make the prosecution case consistent about tying of the hand of the deceased. The evidence of the witnesses is also not consistent on the point of recovery of the dead body. PW 3 claimed to be present on the machan. He stated that he was also searching the dead body. The dead body was recovered at 120 Clock in the day on 2.9.1982. PW 4 stated that he was also searching the dead body and in the next morning the dead body was recovered whereas PW 6 and PW 7 stated that the dead body was recovered at 3 to 4 p.m. If the evidence of PW 3 and PW 4 is accepted it becomes quite clear that there is no cogent evidence on the record to explain such delay in lodging the fardbeyan. Moreover, the evidence of the witnesses. as discussed above, appears to be inconsistent to each other. Therefore, the evidence of the witnesses brought on the record does not appear to be worthy of reliance, furthermore, it has been stated by the witnesses that six heads of cattle were near the machan, naad, pegs were there. They used to cut fodder for the cattle but there is nothing on the record to show that anything was found at the alleged place of occurrence. Moreover, the attention of the witnesses was drawn to the statement made before the police but the I.O. has not been examined and as such substantive evidence could not be brought on the record. Moreover, the attention of the witnesses was drawn to the statement made before the police but the I.O. has not been examined and as such substantive evidence could not be brought on the record. In such a situation, non-examination of I.O., in our view, has also caused prejudice to the appellants. 14. The witnesses examined in this case are either relation of the deceased or inimical to the appellants. Therefore, we have considered the evidence of the witnesses with care and caution as indicated above and we have come to a conclusion that conduct of the witnesses does not appear to be natural. Their evidence is in- consistent to each other. No independent witness has been examined to support the prosecution case even as hearsay or to say that the witnesses disclosed about the occurrence even in the morning or before lodging the first information report. Therefore, in such a situation, their evidence does not inspire confidence. Moreover, the I.O. has not been examined which has caused prejudice to the case of the appellants. The doctors evidence to the effect that he found postmortem injury on the person of the dead body also indicates falsity of the prosecution case. Therefore, in our opinion, the prosecution has failed to establish its case beyond all reasonable doubts. Thus, the appellants are entitled to benefit of doubt. 15. Accordingly, both the appeals are allowed. The judgment and order of conviction and sentence of the appellants are hearby set aside. They are discharged from the liability of their bail bonds.