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2001 DIGILAW 773 (PAT)

Narsingh Mahato v. State Of Bihar

2001-08-23

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. Criminal Appeal No. 103 of 1990 and Criminal Revision No. 400 of 1990 arise out of one and the same judgment and order dated 2.4.1990 passed by Sri Surendra Kumar Sinha, 2nd Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial Nos. 109 of 1988 and 397 of 1988 and similar questions of law and facts are involved in both of them they were taken up together for hearing and are going to be disposed of by this common judgment. 2. All the three appellants were convicted under Sections 364 and 452 of the Indian Penal Code (hereinafter referred to as the Code) and sentenced to undergo rigorous imprisonment for seven years each under each of the counts, the sentences having been ordered to run concurrently. 3. Criminal Revision No. 400 of 1990, referred to above was preferred by Ambika Yadav, the informant, who set the law in motion after abduction of Rameshwar Mahto and his two wives. The revision application was filed for enhancement of sentences awarded to the appellants. 4. The facts of the case depicted a sordid and awful tale of abduction of Rameshwar Mahto and his two wives. In the evening of 4.6.1987 a number of miscreants having armed themselves with various lethal weapons entered into the house of victim Rameshwar Mahto. They resorted to indiscriminate firing to scare and frighten the members of the family. Detecting the arrival of the miscreants Rameshwar Mahto and this two wives closeted themselves in their rooms on the first floor of their house. A little prior to entry of the miscreants in the house, informant Ambika Yadav (PW 6) who was servant of Rameshwar Mahto arrived at the ill fated house after witnessing worship at the house of one Ram Bahadur Singh. No sooner had he got the door of the house opened and entered into the same than the miscreants forced their entry in the house. The miscreants firstly asked the informant to tell them whereabouts of his master Rameshwar Mahto. The informant PW 6 expressed ignorance saying that he had just then returned from the house of the aforesaid Ram Bahadur Singh. Soon thereafter the miscreants went upstairs and broke the doors of the rooms where Rameshwar Mahto and his two wives had concealed themselves. The miscreants at the point of fire arms compelled them to accompany them. The informant PW 6 expressed ignorance saying that he had just then returned from the house of the aforesaid Ram Bahadur Singh. Soon thereafter the miscreants went upstairs and broke the doors of the rooms where Rameshwar Mahto and his two wives had concealed themselves. The miscreants at the point of fire arms compelled them to accompany them. The miscreants took the victims with them. The informant followed them. However, when they reached near a transformer some one from amongst the miscreants assaulted the informant with lathi and asked him to go back. Then the informant returned from there and the miscreants took away Rameshwar Mahto and his two wives with them. The informant identified Rabindra Mahto. Rajendra Mahto, Vijay Mahto, Nawal Mahto. Karu Mahto alias Rabindra Mahto among the miscreants. 5. The motive attributed behind the commission of crime was that Rameshwar Mahto had no male or female child at all from either of his two wives and appellant Rabindra Mahto got a deed of gift in respect of his 14 bighas of land fraudulently and forcibly executed in his favour and he had always been having greedy eyes over the remaining 14 bighas of land standing recorded in the names of his two wives and he engineered a plan of abduction of Rameshwar Mahto and his two wives with intent to force them to execute documents transferring the land to him or the offence of abduction was committed with an intent that Rameshwar Mahto and his wives be murdered so that their land might be easily grabbed. 6. The fardbeyan (Ext 2) of the informant (PW 6) was recorded by Ram Bichar Singh, (PW 7). Sub Inspector of Police at about 6.30 a.m. on 5.6.1987 at village Balwa. On the basis of the said fardbeyan, a formal first information report (Ext 3) was drawn up and Chandi PS Case No. 139/37 giving rise to the instant case was registered. Investigation was taken up by PW 7. In course of investigation statements of Ambika Yadav (PW 6), Bindu Prasad (PW 3) and Basant Singh (PW 4) were recorded under Section 164 Cr PC. Appellants Narsingh Mahto and Arbind Mahto were put on TI parade. Investigation was taken up by PW 7. In course of investigation statements of Ambika Yadav (PW 6), Bindu Prasad (PW 3) and Basant Singh (PW 4) were recorded under Section 164 Cr PC. Appellants Narsingh Mahto and Arbind Mahto were put on TI parade. PW 7 recorded the statements of the witnesses and inspected the place of occurrence and after completing investigation he submitted chargesheet against appellant Rabindra Mahto and others and later on he submitted supplementary chargesheet against co-accused Anandi Mahto. The former chargesheet gave rise to Sessions Trial No. 109 of 1988 and on the basis of the latter chargesheet Sessions Trial No. 397 of 1988 emerged and both the cases were heard and decided analogously. 7. The appellants and other accused persons did not enter into defence. However, from the trend of cross examination of the prosecution witnesses and the statements of the accused persons including the appellants recorded under Section 313 Cr PC the defence seemed to be that of total denial and false implication. It was pleaded that Krishna, who was son of brother-in-law of Rameshwar Mahto was in military service and he was persuaded to leave his job in military service and he was engaged by Rameshwar Mahto to look after and manage his properties, however, later on he was ousted on account of which he started cherishing grudge and grievance against him. Besides, Rameshwar Mahto had also dispute with some other persons of the locality and it was just possible that victim Rameshwar Mahto and his wives were kidnapped by their enemies including aforesaid Krishna. 8. As many as eight witnesses were examined by the prosecution to bring home the charges levelled against the appellants and other accused persons. The learned Additional Sessions Judge after taking the facts, circumstances and evidence brought on record into account, found and held the appellants guilty and he convicted and sentenced them, as stated above, acquitting them of the charges under Section 323 of the Code as well as charge under Section 27 of the Arms Act and acquitting accused Bijay Prasad alias Bijay Mahto, Rajendra Prasad @ Rajendar Mahto, Dwarika Prasad @ Dwarika Mahto, Nawal Prasad @ Nawal Mahto, Karu Mahto @ Rabindra Mahto and Anandi Mahto of all the charges levelled against them vide the impugned judgment and order. 9. 9. The appellants assailed the judgment and order of conviction passed against them by contending that the statements of many witnesses were recorded by the IO several days after the occurrence and moreover their evidence was inconsistent and contradictory, that no physical feature or appearance of the unknown miscreants was stated in the FIR and that the appellants Narsingh Mahto and Arbind Mahto were put on TI. Parade about one and a half months after they surrendered themselves to the Court and no reliance could be placed on such TI parade. 10. It is now to be considered as to whether there is ample, cogent and reliable evidence on records to warrant a conviction of the appellants. 11. The ill fated Rameshwar Mahto and his two wives having no male or female child were abducted by the miscreants from their house on 4.6.1987. As per prosecution version about 10 miscreants broke into their house and at the point of fire arms they forcibly dragged them from the house and took them away with them. It is in the evidence of the IO that none of the victims could be traced out till the date he deposed in the Court. The trial Court observed that the victims had been traceless for about three years and as such it could well be presumed that they were no more in the world. At the time of hearing in this Court as well, the learned Addl. PP on being asked stated that the victims were still traceless. Learned counsel for the appellants expressed ignorance in this- regard. It means that the victims never returned after they were kidnapped on 4.6.1987 and they were still traceless and now it can well be presumed and they are dead. No body remained in the family of the victims. Thanks to the servant of the victims, namely, Ambika Yadav (P\V 6) who dared to lodge first information report against the miscreants indulging themselves in their abduction. 12. It would be relevant and convenient to refer to the evidence available on records to ascertain as to which of the miscreants were liable for ransacking the house of the victim and their abduction. Informant Ambika Yadav (PW 6) averred in his fardbeyan that 10 persons broke into the house and kidnapped the victims and out of them he identified appellant Rabindra Mahto and accused Bijay Mahto. Informant Ambika Yadav (PW 6) averred in his fardbeyan that 10 persons broke into the house and kidnapped the victims and out of them he identified appellant Rabindra Mahto and accused Bijay Mahto. Rajenra Mahto, Rabindra Mahto alias Karu Mahto and Nawal Mahto. He supported the case as laid in the FIR in its entirety save and except that he in his deposition did not name accused Rajendra Mahto. He added that he had entered into the house of his master victim Rameshwar Mahto after he returned from the house of Ram Bahadur Singh where he had gone to witness worship and just then the miscreants numbering 10-15 entered into the house, went upstairs and broke into rooms in which the victims had hid themselves and they forcibly kidnapped them and took them away with them, however, he also followed them but after covering some distance he was assaulted by the miscreants and he was forced to return. It is in his evidence that the victims never returned after they were abducted. The witness identified the accused persons in the dock. He in his cross examination stated that Krishna who was the son of Khelawan Mahto, brother-in-law of Rameshwar Mahto was living in the family of the victims for the purpose of looking after and managing their property but later on he was ousted as Rameshwar Mahto was not satisfied with his conduct and character and thereafter he (PW 6) was appointed as his servant for looking after his cultivation and cattle. He was suggested that he dishonestly removed and misappropriated entire property of his master Rameshwar Mahto and lodged false case. He denied the suggestion. He stated that he went to Nagarnausa police station and got his fardbeyan recorded. However, the IO (PW 7) though earlier stated that he recorded the fardbeyan of PW 6 at the police station, later on he corrected his version by stating that he had gone to the PO village after getting information regarding incident from Chowkidar and the fardbeyan of the informant was recorded there. The fardbeyan (Ext 2) also speaks like that. The statement in his cross examination that PW 6 went to the police station and got his fardbeyan recorded there might have been made inadvertently and that cannot render the witness unworthy of credence. The fardbeyan (Ext 2) also speaks like that. The statement in his cross examination that PW 6 went to the police station and got his fardbeyan recorded there might have been made inadvertently and that cannot render the witness unworthy of credence. It may also be observed that the statement of PW 6 was also recorded under Section 164 Cr PC and that is Ext 5. His statement under Section 164 Cr PC and that made in the Court are quite consistent and corroborative. 13. PW 4 Basant Prasad Yadav supporting th prosecution case stated that at the time of incident he had gone to attend to natures call and after hearing the sound of firing he had proceeded towards the direction from which firing was hard and on way he was that about 15 miscreants were taking away Rameshwar Mahto and his two wives with them. He claimed to have identified appellants Rabindra Mahto, Narsingh Mahto and Arbind Mahto as well as Kamla Mahto, Dwarika Mahto, Vijay Mahto, Nawal Mahto, Karu Mahto alias Rabindra Mahto and Anandi Mahto. Statement of PW 4 was also recorded under Section 164 Cr PC and that is Ext 5/2. In this statement under Section 164 Cr PC also he claimed to have identified all the appellants besides other accused persons. He was contradicted by the IO (PW 7) by stating that he did not speak of involvement of Nawal Mahto in commission of crime to him. No other contradiction or discrepancy occurred in his evidence. Nawal Mahto was already acquitted by the Court below. 14. PW 5 Suresh Singh stated that at about 5.30 p.m. on the date of occurrence he was returning from Khusrupur after selling milk there and on way he saw appellants Arbind Mahto and Narsingh Mahto as well as Anandi Mahto of village Kohawan going towards village Balwa and on being asked by him as to where they were going, they did not make any reply. PW 5 added, he thereafter went to village Balwa for obtaining milk and he heard there sound of firing and when he proceeded and reached near the Darwaza of Harihar Babu and Nand Babu, he saw about 15 miscreants taking away Rameshwar Mahto and his two wives and they were being followed by PW 6 Ambika Yadav and PW 3 Bindu Prasad Yadav PW 5 identified among the miscreants Kamla Mahto, Dwarika Mahto, Nawal Mahto, Devendra Mahto alias Rabindra Mahto, Vijay Mahto as well as appellant Rabindra Mahto and the aforesaid three miscreatns i.e. Anandi Mahto and appellants Arvind Mahto and Narsingh Mahto of village Kohawan. The IO (PW 7) stated that PW 5 did not figure as eye witness to the incident before him and he did not state the names of Kamla Mahto, Dwarika Mahto, Nawal Mahto and Karu Mahto alias Rabindra Mahto to him. The evidence of PW 5 on a careful and cautious scrutiny thereof is found to be worthy of credence and in that view of the matter, the statement of PW 7 that he did not figure as eye witness before him cannot be believed and accepted. 15. PW 3 Bindu Prasad Yadav is the son of the informant (PW 6). He also claimed to be servant of victim Rameshwar Mahto and to have witnessed the entire incident and also to have followed the miscreants and the victims along with his father. However, as his aforesaid statement was not corroborated by his father (PW 6), his evidence was discarded by the Court below. His statement that he was also a servant of the victim Rameshwar Mahto and he was present in his house at the time of occurrence does not seem to be worthy of credence. But it is quite possible that hearing sound of firing PW 3 moved from wherever he was at that time and he saw the miscreants taking away the victim. His statement (Ext 5/1) was recorded under Section 164 Cr PC. The IO recorded his statement on 17.6.1987. The witness also identified appellant Narisngh Mahto on TI parade. Under the circumstances, his evidence that he was the miscreants taking away the victim and he identified one of the appellants Narsingh Mahto on TI parade inspires confidence and the same must be accepted. The learned Court below was not justified in rejecting his entire evidence. 16. The witness also identified appellant Narisngh Mahto on TI parade. Under the circumstances, his evidence that he was the miscreants taking away the victim and he identified one of the appellants Narsingh Mahto on TI parade inspires confidence and the same must be accepted. The learned Court below was not justified in rejecting his entire evidence. 16. The evidence of PWs 6, 4 and 5 on the point of occurrence and identification of the appellants was quite consistent and corroborative, free from inherent taint and infirmity. They were cross examined at length but nothing material adversely affecting the edifice of the case was elicited in their cross examination. 17. The IO (PW 7) stated that he recorded the fardbeyan (Ext 2) of PW 6, the informant, on 5.6.1987 on the basis of which formal FIR (Ext 3) was registered. He proved his endorsement (Ext 2/1) sending fardbeyan to Chandi Police Station for registration of case as well as the endorsement (Ext 2/2) of the Officer-in-Charge of Chandi Police Station regarding registration of the case. PW 7 took up investigation. He visited the place of occurrence and gave a vivid description of the same. He recorded the statement of the witnesses. He also got statement of PWs 3,4 and 6 recorded under Section 164 Cr PC. In paragraph 10 of his deposition he stated that he had got the TI parade conducted of appellants Narsingh Mahto and Arbind Mahto as well as Anandi Mahto and Sheo Balak Mahto. It is in his evidence that he recorded the statement of PWs 3, 4 and 5 respectively on 17.6.1987, 12.7.1987 and 11.6.1987 and in that view of the matter, the contentions put forward on behalf of the appellants that the statements of the witnesses were recorded by the IO after lapse of about two months is not tenable and acceptable. PW 7 stated that the victim Rameshwar Mahto was not involved in any case save and except that related to the land in dispute, meaning thereby, the land which was said to have been fraudulently and forcibly got transferred in favour of appellant Rabindra Mahto. PW 7 stated that the victim Rameshwar Mahto was not involved in any case save and except that related to the land in dispute, meaning thereby, the land which was said to have been fraudulently and forcibly got transferred in favour of appellant Rabindra Mahto. the Investigating Officer in his cross examination stated that there existed animosity between Karu Mahto alias Rabindra Mahto and Nawal Mahto on the one hand and PW 4 Basant Parsad Yadav on the other and appellant Rabindra Mahto and accused Karu Mahto alias Rabindra Mahto were also on inimical terms. It does not stand to reason as to on what basis the IO made such statement. He being a public servant was not expected to know relationship between the accused persons and the witnesses. He further stated that the villagers stated to him that some unknown miscreants had kidnapped he victims. The statement of the IO (PW 7) referred to above, cannot be accepted and acted upon. 18. Mr, Uday Narain Mishra, Judicial Magistrate, Hilsa (PW 8) on 12.8.1987 conducted TI parade of appellants Arbind Mahto and Narsingh Mahto. He stated that PW 3 Bindu Prasad Yadav identified appellant Narsingh Mahto and PW 4 Basant Prasad Yadav identified appellant Narsingh Mahto as well as Arbind Mahto on the TI Parade. In the TI chart prepared by PW 8 (Ext 4) also it was stated that they had identified the appellants on the TI parade. PW 8 also testified to his recording statement of PWs 3,4 and 6 under Section 164, Cr PC. As already stated their statements are Exts 5. 5/1 and 5/2. 19. On a perusal of the impugned Judgment and order it would transpire that Anandi Mahto was also put on TI parade and he was identified there but his identification was disbelieved by the Court below on the ground that he was a solitary person among 10 persons put on TI parade who had no fingers in one of his hands and as such he could have easily been distinguished and identified. 20. 20. It was contended that none of the witnesses spoke of physical feature or appearance of the unknown miscreants and as such identification of appellants Arbind Mahto and Narsingh Mahto on the TI parade and that too after lapse of about 50 days from the date of their surrender or arrest could not be relied upon vide the case of Soni V/s. State of Uttar Pradesh, reported in 1982 (3) SCC page 368 and the case of Rahimal V/s.State of Uttar Pradesh, reported in 1992 Cr LJ page 3819. In the cases cited at the Bar TI parade was held about two months after the arrest of the suspect. The facts and circumstances of those cases are entirely different from those of the case at hand. In the case, this Court is in seisin of, two witnesses viz PWs 4 and 5 knew and identified the appellants while they were taking away the victims and they stated their names in their examination-in-chief. In the circumstances, identification of the appellants on the TI parade by PW 4 was meaningless. Even if PW 4 was not called to identify the appellants at the TI parade, that would have made no difference for he had already identified and named them. 21. The informant (PW 6) stated that when he was following the victims and the miscreants, he was assaulted near the transformer and commanded to return and thereafter he came back from there. He sustained certain injuries and he was examined by Dr. Rajendra Prasad Sinha. (PW 2). The Doctor stated that he examined the informant at about 11.45 a.m. on 5.6.1987 at State dispensary, Nagarnausa and found lacerated wound of dimension of 1"x 1/2" with swelling around it over right below. The injury was said to be simple in nature caused by hard and blunt substance within six hours of his examination. The injury report made by PW 2 is Ext 1. The evidence of the Doctor is not very material for, the assailants were already acquitted of the charge under Section 323 of the Code. 22. PW 1 Dasain Ram simply stated that he heard the sound of firing and later on he came to know that Rameshwar Mahto and his two wives were abducted and taken away by some miscreants. The evidence of the Doctor is not very material for, the assailants were already acquitted of the charge under Section 323 of the Code. 22. PW 1 Dasain Ram simply stated that he heard the sound of firing and later on he came to know that Rameshwar Mahto and his two wives were abducted and taken away by some miscreants. He did not name any of the miscreants who were taking away the victim and as such his evidence is of no avail to the prosecution. 23. The motive attributed behind the commission of crime was the fact that Rameshwar Mahto had no issue at all from either of his two wives and the appellant Rabindra Mahto who is said to be his cousin got a deed of gift fraudulently and forcibly executed by Rameshwar Mahto in respect of his 14 bighas of land in his favour and he had greedy eyes over his remaining 14 bighas of land which stood recorded in the name of his two wives and he engineered the plan of abduction to get same document forcibly executed by the wives of Rameshwar Mahto in respect of the aforesaid land in his favour or with intent that the victims might be murdered so that their remaining land be easily grabbed and taken possession of. The informant (PW 6) proved the motive by stating that appellant Rabindra Mahto got 14 bighas of land fraudulently and forcibly transferred by Rameshwar Mahto in his favour and for that title suit was still going on and the appellant Rabindra Mahto wanted to get remaining 14 bighas of land referred to above also transferred to him by the two wives of Rameshwar Mahto. It is to be borne in mind that the victims are still traceless and they can well be presumed to have been murdered. The motive stood well proved. 24. The evidence of PWs 6, 4 and 5 considered together with the evidence of the IO (PW 7) abundantly established that the miscreants entered into the house of victim Rameshwar Mahto by breaking the doors and they at the point of fire arms kidnapped him and his two wives. The IO did not mention in the case diary that he found the doors of the rooms broken though the informant categorically stated that the doors were broken by the miscreants. The IO did not mention in the case diary that he found the doors of the rooms broken though the informant categorically stated that the doors were broken by the miscreants. However, on account of non-mention of broken door planks in the case diary on account of laches and negligence on the part of the IO the entire prosecution case cannot be throw over board. 25. Not it is to be considered as to which of the miscreants are liable and under which provisions of law. 26. It has been contended that the materials on record did not establish the ingredients of either Section 364 or Section 452 of the Code. Section 364 of the Code provides, whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. 27. In the instant case, the victims were abducted at the point of fire arms and soon before the miscreants started taking away the victims, they had opened indiscriminate firing and as such the victims must be said to have been put in danger of being murdered and as already observed, they have been traceless since 1987 and they, in all probability, appeared to have been murdered 28. Section 452 of the Code lays down "whoever commits house trespass having made preparation for causing hurt to any person or for assaulting any person or for wrongfully restraining any person, or for putting any person in fear of hurt or of assault or of wrongful restraint, shall be punished with imprisonment of either the description for a term which may extend to seven years and shall also be liable to fine." The miscreants having armed with lethal weapons including fire arms entered into the house of the victim and they resorted to indiscriminate firing and as such they must be said to have put the victim in fear of hurt or of assault. Thus the materials on record clearly established the ingredients of Sections 364 and 452 of the Code. 29. Thus the materials on record clearly established the ingredients of Sections 364 and 452 of the Code. 29. The defence version that victim Rameshwar Mahto had been on inimical terms with several other persons including Krishna, who being the son of his bother-in-law was engaged to look after his affair and was subsequently ousted from the house and it was just possible that some other unknown miscreants abducted the victims and the informant who was servant of the victims concocted the instant case against the appellants is far from probable and plausible. No material at all has been brought on record to establish the defence set up by the appellants even by putting suggestions to the prosecution witnesses. Certified copy of the FIR of Nagarnausa PS Case No. 215/88 (Ext 4), certified copy of chargesheet thereof (Ext B), certified copy of order dated 20.4.1988 passed in Title Suit No. 221 of 1984 (Ext C), voter lists (Ext D, D/1 and D/2) were brought on record on behalf of the defence. However, the Court could not be enlightened as to how these documents were of any avail to the appellants. These documents can by no stretch of imagination be said to have probabilised the defence version. 30. As many as nine accused person including the appellants faced the trial. The learned trial Court considered the entire facts, circumstances and evidence available on record and acquitted as many as six accused persons, namely, Bijay Prasad, Rajendra Prasad, Dwarika Prasad, Nawal Prasad, Karu Mahto alias Rabindra Mahto and Anandi Mahto of all the charges levelled against them and he convicted and sentenced only the three appellants. As already stated above, there is un-impeachable evidence of the prosecution witnesses to establish beyond shadow of reasonable doubt that the appellants having armed themselves with lethal weapons broke into the house of the victims and they at the point of fire arms abducted them. The motive behind commission of crime, as already observed, also stood well proved. 31. The appellants were convicted and sentenced to undergo rigorous imprisonment for seven years under each of Sections 364 and 452 of the Code, both the sentences having been ordered to run concurrently. The informant preferred Criminal Revision No. 400 of 1990 for enhancement of sentence awarded to the appellants. However, no body turned up to press the revision application. 31. The appellants were convicted and sentenced to undergo rigorous imprisonment for seven years under each of Sections 364 and 452 of the Code, both the sentences having been ordered to run concurrently. The informant preferred Criminal Revision No. 400 of 1990 for enhancement of sentence awarded to the appellants. However, no body turned up to press the revision application. The incident leading to abduction of the victims took place in the year 1987. The appellants must be said to have suffered a lot of harassment and mental agony during the pendency of case for over 14 years. Though, of course, the victims are still traceless but, taking the facts and circumstances attending to the case into account, on that ground alone it is not just, appropriate and expedient in the interest of justice to enhance the sentence awarded to the appellants. The conviction and sentence recorded against the appellants are maintained and confirmed. 32. In the result there is no merit in the appeal as well as in the revision application and both are accordingly dismissed.