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2002 DIGILAW 859 (PAT)

Lutan Paswan v. State of Bihar

2002-08-07

B.N.P.SINGH, P.K.SINHA

body2002
JUDGMENT B.N.P. SINGH, J.:-Notwithstanding good friendship between them, the prosecution alleges that Lutan Paswan being animated with unholy and uncharitable design, invited Naresh Mahto to his house on a false pretext and with the aid of others executed his killing. 2. At the outset we may refer to some of the salient features of the prosecution case centering round the incident in question. It was at about 10 p.m. in the night of 22nd June, 1984, that Lutan Paswan and Mahavir Paswan allegedly came to the house of Naresh Mahto and having invited him to their house to take Prasad, took him in their company. As Naresh Mahton did not return to his house till late hours in the night, worried family members asked Lutan Paswan the whereabout of Naresh Mahton when he consoled them not to worry, as he had gone to his father-in-law's house where his mother-in-law had been ailing, and was likely to return to his house within 2-3 days. The prosecution also alleges that even when Naresh Mahton was not available in his house, Lutan Paswan was visiting his house and was making available milk and mustard oil to his wife, who had delivered a child 2-3 days proceeding the incident. Just on the following day, Godo, brother of Naresh Mahto, was sent to the house of father-in-law of Naresh Mahto, to ascertain bona fide of the answer responded by Lutan Paswan, who, on his return, informed that Naresh Mahto had not visited house of his father-in-law. It was after about two days, when people came to know about a dead body lying in river Kewta Kuriya Dhar which was eventually identified to be that of Naresh mahto. The dead body was found packed in a gunny bag which was quite decomposed and mutilated, and eyes and tongue of the deceased had protruded. However, dead body could be identified by family members only with the aid of wearing apparel of the deceased. As for motive, the prosecution alleges that as cattle of the appellants and others had grazed the crops of Naresh Mahto, he had reprimanded them, pursuant to which they had threatened Naresh Mahto to kill him and with these accusations, prosecution was launched on behest of father of the deceased, following which, investigation commenced. As for motive, the prosecution alleges that as cattle of the appellants and others had grazed the crops of Naresh Mahto, he had reprimanded them, pursuant to which they had threatened Naresh Mahto to kill him and with these accusations, prosecution was launched on behest of father of the deceased, following which, investigation commenced. The Investigating Officer entrusted with the onerous task of investigation, visited place of occurrence, took dead body of Naresh Mahto in custody, which was packed in a gunny bag with marks of strangulation in the neck, recorded statement of witnesses, prepared inquest report, got held autopsy over the dead body of the deceased and on conclusion of investigation, laid charge sheet before the Court, and eventually trial commenced against as many as seven persons including the appellants. The State examined altogether 14 witnesses including family members of the deceased, those who has shown familiarity with the incident in question, the Police Officer and also the doctor who held autopsy over the dead body of the deceased. 3. The defence of the appellants both before the trial court and also this Court had been that of total innocence and they ascribed their false implication for no good reasons. The trial Judge, who was in seisin of the proceeding, having considered evidences placed on the record, framed certain issues which in his estimation, operated adverse to the appellants and while acquitted five of them of the charges, recorded finding of guilt against the appellants under sections 364, 201, and 302/34 of the Indian Penal Code (IPC). Though the appellants were sentenced to suffer rigorous imprisonment for life under sections 302/34 IPC, no sentence was awarded to them either under section 364 or 201 IPC. 4. Two sets of evidences were sought to be led at trial by the State, as while some witnesses were examined to establish that Lutan Paswan and Mahabir Paswan took Naresh Mahton in their company on the fateful night on false pretext of taking Prasad in their house, pursuant to which, he was not found alive, the other set of evidence was led at trial to establish recovery of dead body of Naresh Mahto from the gunny bag floating in the river. Some witnesses were also examined to suggest animosity which developed between the parties preceding the incident and since evidence of these witnesses have been fairly spelt out in the judgment of the court below, we wish to refer to them with some brevity for appreciation of the contentions raised at Bar on behalf of the appellants. Firstly, we wish to examine evidence that were led at trial about first part of the prosecution version, and those examined by the State on this score, happened to be Dhiraj Mahto (PW. 6), Boudhu Mahto (P.W. 9), Doman Mahto (P.W. 11), and Yogendra Singh (P.W. 13). Reiterating his early version, which he rendered before the Police to set the ball in motion, Dhiraj Mahto (P.W. 6) would make similar narration at trial too about Lutan Paswan and Mahabir Paswan having taken Naresh Mahto in their company in the night, on pretext of taking Prasad in their house, pursuant to which, Naresh Mahto was not found alive, and when inquiries were made from Lutan Paswan by Dhiraj Mahto about Naresh Mahto, who had not returned to his house till late hours of night, he had been allegedly making evasive reply about whereabout of Naresh Mahto, as witness stated that on information rendered by Lutan Paswan, when Godo was sent to the house of father-in-law of Naresh Mahto, he was not found there. It was after about two days, that the dead body of Naresh Mahto was found packed in the gunny bag beside river Kewata Kuriya Dhar. Similar narrations were sought to be made by Boudhu Mahto (P.W.9). This witness too claimed to have visited house of Lutan Paswan to know whereabout of Naresh Mahto who had not returned to his house after he had been to the house of Lutan Mahto to take Prasad in his company. This witness, however, did not claim his examination by the Police during investigation and that apart, if narration given by Dhiraj Mahto (P.W.6) was to be given any credence, and also those recitals made in his fardbeyan, they do not suggest P.W. 9 ever visiting house of Lutan Paswan, following day, for making inquiry about Naresh Mahto. Doman Mahto (P.W. 11) too seeks to make similar narration at trial about Luttan Paswan and Mahabir Paswan having taken the deceased to their house on pretext of taking Prasad in their house. Doman Mahto (P.W. 11) too seeks to make similar narration at trial about Luttan Paswan and Mahabir Paswan having taken the deceased to their house on pretext of taking Prasad in their house. But if this witness is to be considered credible, he would make exclusion of none else but Dhiraj Mahto at the house, when Lutan Flaswan and Mahabir Paswan visited house of Naresh Mahto to take him in their company to take Prasad in their house, as the witness was emphatic in his assertion that at that time, Dhiraj Mahto was in his cattle shed and he was the only male member in the house. Attention of this witness drawn by defence and evidence of Investigating Officer would not, however, fail to suggest that no such parallel statement about appellants taking deceased to their house was made before Police during investigation which is an important omission and serious infirmity in his evidence but trial Judge lightly condoned them on analogy that witness has failed to recapitulate events, though which were of vital significance out of confusion. 5. Yogendra Singh (P.W. 13) was the last witness to say about Lutan Paswan and Mahabir Paswan having taken the deceased in their company to take him to their house for taking Prasad, pursuant to which he was not seen alive. This witness too would state that after Naresh Mahto did not come back to his house till late hours, the next morning, he along with his father had visited the house of Lutan Paswan to know whereabout of his brother when evasive reply was sought to be made by him. The assertion made by this witness about he too having visited the house of Lutan Paswan to know whereabout of his brother is not explicit either in the evidence of Dhiraj Mahto (P.W. 6) which he led a trial or in the recitals made in the fardbeyan and that apart this witness too makes exclusion of Dhiraj Mahto, at house when appellants took deceased in their company to take him to their house. 6. 6. The other set of evidence led at trial was that of Nageshwar Singh (P.W 4), Ramdeo Singh (P.W 5), Ishwar Singh (P.W 7), Doman Mahto (P.W. 11) and Hare Krishna Singh (PW 12), who would state about the dead body of Naresh Mahto floating in the river, packed in a gunny bag with marks of strangulation in the neck. 7. Now, we may switch over to the evidence of Dr. Om Prakash Singh (PW 10), which he recorded during post mortem examination of the deceased Naresh Mahto. There was no rigor mortis and process of decomposition had set in. Skin of hands and feet were wrinkled, bleached and swollen. Mouth and eyes were open, tongue had swollen and protruded. There was one horizontal ligature mark found encircling the whole of neck. One rassi was also found tied round the neck. One rassi was also found tied encircling the abdomen at the level of the umbilicus; and the last witness to be discussed happens to be Shashikant Lal (PW 14) who was the Investigating Officer of the case. He stated to have instituted a Police case at the statement of Dhiraj Mahto (P.W. 6), pursuant to which statement of witnesses were recorded and the dead body of Naresh Mahto was found packed in a gunny bag beside the bed of the river. The witness stated to have prepared inquest report over the dead body and he also took Lutan Paswan in custody who had been confined in a school by the villagers. The witness also stated to have laid charge sheet before the court on conclusion of investigation. This is all the evidence that has been adduced on behalf of the State. 8. Now we may refer to the arguments canvassed at Bar on behalf of the appellants to assail the propriety of the findings recorded by the court below, and it is sought to be urged that apart from fact that there was paucity of direct evidence suggesting the appellants to be the killer of the deceased, even circumstantial evidences led at trial were not of clinching nature which would conclusively lead only to the guilt of the appellants. Contentions were raised that even the motive assigned behind the killing of Naresh Mahto had not been established by cogent evidence as the witnesses were emphatic in their assertion that Lutan Paswan had no cattle, giving any occasion for any altercation over grazing of crop's of Naresh Mahto by the cattle of the appellants. Contentions were raised that the deceased and Lutan Paswan, as the witnesses would make consistent narration, were good friends and also Lutan Paswan was quite hospitable to the family of the deceased. Their relationship was never strained and hence it was most unlikely that Lutan Paswan would be the killer of his friend. Though there are some evidence not of vital significance, we may also refer to the evidence of the witnesses who were either tendered by the State or were declared hostile and we refer to the evidence of Suresh Singh (P.W. 1), Bino Singh (P.W. 2) and Biranchi Singh (P.W. 3), who turned volte face to the State expressing their total ignorance about the incident. Rajendra Prasad Singh (P.W. 8) was tendered by the State and there was nothing material in his evidence to merit consideration. 9. The trial court, as has been stated above, formulated some issues which allegedly operates adverse to the appellants, and the circumstances that were taken into consideration by the trial Judge were that (i) both Lutan Paswan and the deceased were good friends and also both were young, (ii) Naresh Mahto had established questionable relationship with the wife of Lutan Paswan for which the latter had been poisoned by the villagers which actuated him to take revenge from his friend. The trial Judge also took into consideration the narrations made by Dhiraj Mahto (P.W. 6), that even Naresn Mahto was most reluctant to go to the house of Lutan Paswan when he came to invite him to take Prasad at his house. But we have noticed that no such narrations were ever made in the fardbeyan of Dhiraj Mahto about reluctance of his son to go to the house of Lutan Paswan when he was invited by him, and that apart, such assertion made by the witness was conspicuously wanting even before the Police. But we have noticed that no such narrations were ever made in the fardbeyan of Dhiraj Mahto about reluctance of his son to go to the house of Lutan Paswan when he was invited by him, and that apart, such assertion made by the witness was conspicuously wanting even before the Police. The false pretext allegedly made by Lutan Paswan about whereabout of Naresh Mahto was also taken to be a ground by the Trial Judge which operates adverse to him and on this score too we may notice that barring solitary statement made by Dhiraj Mahto (P.W.6), evidence of other witnesses were not credible, as neither Boudhu Mahto (P.W. 9) nor Doman Mahto (P.W. 11) would state about such verification having ever been made from Lutan Paswan to ascertain about of Naresh Mahto. Though Yogendra Prasad (P.W. 13) too claimed to have visited house of Lutan Paswan to make verification when false pretext was allegedly made by him as has been stated earlier, neither the evidence of P.W. 6 nor recitals made in the fardbeyan would lend assurance to such assertion made by this witness about visiting house of Lutan Paswan for verification of Naresh Mahto, when such false pretext were allegedly made by him. Lutan Paswan being hospitable to the family of deceased during his absence was also taken to be an adverse circumstance by the trial Judge, who held the view that it was only to deviate the family members from the culpability of the offenders. Marks of strangulation on the neck of the deceased and Lutan Paswan having not visited river site after the dead body of Naresh Mahto was seen floating in the river, was also considered to operate adverse to the appellants and that apart, evidence of last seen theory operating adverse to the appellants was also considered detrimental to the interest of the appellants. 10. As for motive which is of vital significance in case of circumstantial evidence, prosecution case was most incoherent. Though recitals were made in the fardbeyan of Dhiraj Mahto (P.W. 6) that preceding the incident in question, there has been exchange of wordy duals between the deceased and Lutan Paswan and others over the matter of grazing crop by the cattle of Lutan Paswan and others, when Lutan Paswan had also extended threat to Naresh Mahto. Though recitals were made in the fardbeyan of Dhiraj Mahto (P.W. 6) that preceding the incident in question, there has been exchange of wordy duals between the deceased and Lutan Paswan and others over the matter of grazing crop by the cattle of Lutan Paswan and others, when Lutan Paswan had also extended threat to Naresh Mahto. Yogendra Singh (P.W. 13), who happens to be the brother of the deceased, states about such threat having been extended to Naresh Mahto in presence of Bino Singh (P.W. 2), Nageshwar Singh (P.W. 4). Dhiraj Mahto (P.W. 6), Ishwar Singh (P.W. 7), Boudhu Mahto (P.W. 9) and Doman Mahto (P.W. 11). None of these witnesses barring Dhiraj Mahto (P.W. 6), who was father of the deceased, would state about such threat having been ever extended to the deceased by Lutan Paswan and others. Though Yogendra Singh (P.W. 13) too would state about such threat having been extended to the deceased by Lutan Paswan and others, the Police officer would state that no such narration was ever made by this witness before his during investigation. Contrary to the element of threat that was suggested to be one of the motives behind the killing of the deceased, the witness would state about good friendship between the deceased and Lutan Paswan and that apart, there has been evidence of P.Ws. 11, 13, and others who would state that Lutan Paswan had no cattle and there was no occasion for grazing of crop by his cattle and hence, giving threat to the deceased who had allegedly reprimanded him. 11. Other set of evidence led at trial about motive was that since Lutan Paswan used to go to Punjab to earn his livelihood, he had asked Naresh Mahto, who happened to be his good friend, to take care of his family members during his absence and Naresh Mahto having seized opportunity of the absence of Lutan Paswan from his house, came in close proximity and developed some sort of illicit relationship with his wife, and it was Mahabir Paswan, who had apprised Lutan Paswan of illicit relationship of Naresh mahto with his wife and had also counselled him to wipe out Naresh Mahto, and the witnesses examined by the State on this sc Ire were P.Ws. 2, 4, 5, 6, 7, 9, 11 and 13 and, if we critically analyze the evidence of these witnesses to ascertain the credibility of the prosecution version about this part of motive, obviously one gets frustrated, as none of these witnesses except P.Ws. 11 and 13 would say about questionable relationship of Lutan Paswan with the wife of deceased, for which Mahabir Mahto had counselled Lutan Paswan to wipe out Naresh Mahto. The evidence of these witnesses too would not deserve credence for the simple reason that no such parallel statements were made by the witnesses before the Police during investigation. As for P.W. 5, the witness stated that since he came to know about suspected illicit relationship of Lutan Paswan with the wife of deceased, he considered Lutan Paswan to be the killer of the deceased who had been the paramour of his wife. Discussions made above, would amply suggest that even motive, which is said to be of vital significance in a case of circumstantial evidence, appears to be insignificant in this case and has not been established by cogent and reliable evidence. 12. Now we may notice other circumstance to judge culpability of the appellants. Both the deceased and Lutan Paswan were good friends and there has been evidence of Ramdeo Singh (P.W. 5), Dhiraj Mahto (P.W. 6), Ishwar Singh (P.W. 7), Boudhu Mahto (P.W. 9) and even Yogendra Singh (P.W. 13). These witnesses were stating at trial that both were on visiting terms to the house of each other and even during absence of Lutan Paswan, Naresh Mahto used to take care of his family members. He had been hospitable to them, as even during absence of Naresh Mahto, he had been making available milk and mustard oil to the wife of the deceased who was just blessed with a child. Though it was sought to be established with the evidence of Dhiraj Mahto (P.W. 6), as has been stated earlier, that Naresh Mahto was most reluctant to go to the house of Lutan Paswan when he came to invite him on pretext of taking Prasad, that was the solitary statement made by the witness without corroboration from any other witness, and that statement too was conspicuously wanting before the Police as no such parallel statement had been made by the witness during investigation. As has been noticed, even motive assigned behind the killing of the deceased was most incoherent. There is also other side of the coin which cannot remain unnoticed and that is the evidence of Dhiraj Mahto (P.W. 6) and Yogendra Singh (P.W. 13). These witnesses stated that after threats were extended to Naresh Mahto by Lutan Paswan and others, relationship between the two got strained and some sort of animosity developed between them. If we accept assertions of these two witnesses, it looks quite improbable and unlikely that in the backdrop of such strained relationship, Lutan Paswan would dare to invite Naresh Mahto to his house or even Naresh Mahto would be willing to accompany his friend who had turned hostile to him. It is almost well settled principle of law crystallised by a catena of decisions of the Court that where guilt of the accused is sought to be established with the aid of circumstantial evidence, the evidence must be unbroken chain leading to only one conclusion and that of the guilt of the accused and the evidence must be incompatible with the innocence of the accused and this principle of law which was held the field so long need not be reiterated again. 13. Learned counsel for the State while resisting contentions raised at Bar on behalf of the appellants, had brought to our notice decision of the Apex Court reported in (1998) 7 SCC 722 (Gurnam Singh and others Vs. State of Punjab) and it is urged that even with unbroken chain of circumstances, the conclusion about guilt of the accused can be drawn. However, the facts of the case, cited at Bar are quite distinguishable from the case under consideration, as in the previous case, there was good and clinching evidence of abduction of some of the victims from their house on the point of lethal weapons, pursuant to which the victims were found to have been killed. The circumstances are quite reverse in the case under consideration which we have already discussed and the ratio decidendi cited at Bar cannot be applicable to the facts of this case. 14. The circumstances are quite reverse in the case under consideration which we have already discussed and the ratio decidendi cited at Bar cannot be applicable to the facts of this case. 14. Having critically analyzed the evidences placed on record and also the contentions raised at Bar, we find that the conclusion drawn by the trial court cannot be sustained and as such the findings recorded by the trial court are set aside and the appellants are acquitted of the charges levelled against them. They are also discharged from the liability of their bails bonds. This appeal accordingly succeeds. P.K. SINHA, J.:-I agree.