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2007 DIGILAW 1807 (PAT)

Surendra Mahto v. State Of Bihar

2007-11-23

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. This appeal by the sole appellant is directed against the judgment dated 4.5.1993 and order of sentence dated 5.5.1993 passed by Sri Moti Lal Hasdah, the then 1st Additional Sessions Judge, West Champaran at Bettiah in Sessions Trial No. 184 of 1992 arising out of Nautan P.S. Case No. 63 of 1991 whereby the sole appellant has been found guilty for the commission of offence u/s. 396 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a term of 10 years. 2. One Raj Bahadur Rao set the proceeding in motion by giving his fardbeyan at about 9 P.M. on 1.7.1991 in respect of an occurrence which took place earlier that day. According to the informant he had gone to the house of his nephew Jai Narain Rao and in the evening he was sitting with him and some other persons, namely, Brijesh Mahto, Manager Mahto and Bikrama Mahto in front of the house. At around 8 P.M. one Brahmdeo Yadav came to take food for the Baba of Bairagi Math and as he entered into the Angan some 10-12 persons flashing torches came running from the road and four of them surrounded them and pointing their guns at them threatened them not to move. It is said that one of them asked about the whereabouts of the gun as some of the miscreants entered into the house. It is said that Jai Narain gave out that the gun was in the name of his brother and was with him at Ranchi and even volunteered that the house was open and they were free to search for the gun and take away any article they felt like taking. After some time one of the miscreants from inside shouted that the gun was not to be found whereupon one of the dacoits surrounding the informant asked those dacoits inside to come out. It is alleged that as the dacoits were departing accused Surendra Mahto pointed at Jai Narain and on his instance accused Kamal Yadav turned round and fired at Jai Narain Rao who sustained injuries on his chest and died instantaneously and the dacoits went away. The informant claims to have identified 9 of the accused and also stated that the persons who were present there had identified some others. The informant claims to have identified 9 of the accused and also stated that the persons who were present there had identified some others. According to the informant there was land dispute between Dharichan Mahto and Brijesh Mahto and out of that very land Brijesh Mahto and others had sold 10 Kathas of land to Jai Narain Rao and it was agreed that the cases in Court would be looked after by Jai Narain Rao. It is said that it was Dharichan Mahto who had masterminded the crime. However, the informant has not named Dharichan Mahto as one of the participants in the crime. 3. On the basis of the fardbeyan of Raj Bahadur Rao Nautan P.S. Case No. 63 of 1991 was registered u/s. 396 of the Indian Penal Code against 9 persons named in the F.I.R. and after due investigation a chargesheet under Ss. 396 and 120-B of the Indian Penal Code was submitted against the aforesaid 9 persons wherein except the sole appellant all the other 8 F.I.R. named accused were shown as absconders. 4. It appears that apart from the sole appellant herein, Pyare Lal Mahto and Dharichan Mahto were put on trial even as the other persons, named in the F.I.R., continued to abscond and charges under Ss. 396 and 120-B of the Indian Penal Code were framed against these three accused who pleaded not guilty and claimed to be tried. 5. The defence does not dispute that there had been some occurrence in which Jai Narain Rao was murdered and their stands is that none of these accused persons were involved in the crime and had been falsely implicated in this case out of enmity. 6. In support of its case, the prosecution examined as many as 14 witnesses and also adduced several documentary evidence. It appears that after consideration of the materials available on record the Trial Court acquitted accused Pyare Lal Mahto and Dharichan Mahto of both the charges for want of cogent evidence against them and while acquitting the sole appellant, Surendra Mahto, of the charge u/s. 120-B of the Indian Penal Code for want of sufficient evidence, convicted him for the offence u/s. 396 of the Indian Penal Code and as stated above sentenced him to undergo rigorous imprisonment for 10 years. 7. 7. The impugned judgment and order are sought to be assailed by the learned counsel for the appellant on the ground that the learned Trial Court had passed the same without judiciously appreciating the evidence available on record. In this connection, it was sought to be submitted that the appellant herein was merely the order giver and had instigated Kamal Yadav to fire which had caused fire arm injuries on the chest of Jai Narain Rao who had subsequently succumbed to the injuries and as such the appellant could not be convicted and sentenced for the offence u/s. 396 of the Indian Penal Code. It was further sought to be submitted that out of the 14 witnesses examined, none from the family of the deceased had supported the prosecution case as would be evident from the deposition of P.W. 1 (Uncle of the deceased), P.W. 9 (wife of the deceased), P.W.10 (daughter of the deceased) and P.W.13 (full brother of the deceased). It was also sought to be pointed out that P.W. 2 (Brahmdeo Yadav) who was an independent witness has not disclosed any overt act against the appellant. However, as was contended, by the learned counsel for the appellant, that P.W. 3, Brijesh Mahto, P.W.4, Bikrama Mahto and P.W. 5, Manager Mahto, who are close Pattidar of the appellant have stated about the land dispute with him (the appellant) and their father Dharichan Mahto which was pending in the Civil Courts and these witnesses deposing against the appellant could have been resultant of the pending enmity and, therefore, their evidence could not be relied upon as they had very good cause for implicating the appellant even though falsely. In this connection, it was sought to be submitted that when Dharichan Mahto and Pyare Lal Mahto who were on inimical terms with Jai Narain Rao had been acquitted of the charges framed against them, there was no cogent reason or cause to convict the sole appellant herein on the same set of evidence. It was also sought to be pointed out that the informant himself as also the wife and daughter who were possibly eye witnesses to the occurrence had turned hostile and the learned Trial Court had solely relied on the evidence of P.Ws. 3, 4 and 5 who admittedly were on inimical terms with the appellant and favourable to his deceased nephew. 8. 3, 4 and 5 who admittedly were on inimical terms with the appellant and favourable to his deceased nephew. 8. From the materials available on record, there is no clinching evidence to indicate the active involvement of the appellant in the crime and the only overt act alleged against him is that of an order giver. This fact is supported by P.Ws. 3, 4 and 5 who admittedly were on inimical terms with the deceased and the informant. It is true that enmity cuts both ways but then there must be sufficient evidence to draw legitimate inference that accused alone, to the exclusion of any one, were responsible for the crime. It is also true that the evidence of inimical witnesses cannot be rejected on the ground of enmity but then such testimony has to be tested with circumspection and caution and mere suspicion cannot be a substitute for cogent and reliable evidence. 9. In the instant case, admittedly, P.Ws. 3, 4 and 5 are inimical and their testimony, to my mind, appears to be that of interested/partisan witnesses. 10. From the materials available on record specially the evidence of inimical witnesses, I am of the opinion that the sole appellant is entitled to a benefit of doubt and acquittal. 11. Accordingly, the appeal is allowed and the impugned judgment of conviction and order of sentence is hereby set aside. The appellant who is on bail is discharged from the liabilities of his bail bond.