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2014 DIGILAW 1046 (PAT)

Birendra Mahto v. State of Bihar

2014-10-09

AMARESH KUMAR LAL, DHARNIDHAR JHA

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JUDGMENT : Dharnidhar Jha, J. None appeared on behalf of the appellants. We have heard Shri Abhimanyu Sharma, the learned Additional Public Prosecutor for the State. 2. The two appellants are before us through the two appeals to assail the judgment of conviction and order of sentence dated 30.04.1992, passed by the learned Additional Sessions Judge-VI, Arrah in Sessions Trial No. 397 of 1985 by which they had been held guilty of committing offence under Sections 302/34 of the Indian Penal Code and had been directed to suffer rigorous imprisonment for life. 3. The prosecution case in short is that the informant had gone out of his house to pluck green vegetables from a field. His mother had also gone out to scrap grass. It appears from the prosecution story that the mother and the son were working side by side in two different fields. It was stated that the two appellants came there with Lathis and appellant Baijnath Mahto and Birendra Mahto stating that she was a Dain and was, as such, instrumental in the death of his daughter started assaulting her with Lathis. The witnesses were attracted and they saw the occurrence. 4. It appears from the evidence that P.W.1 Girja and P.W.2 Mahipat Mahto had claimed themselves to be eye-witnesses to the occurrence on account of having been attracted at the shouts of the deceased and the commotion arising out of the incident. While we were being taken through the evidence of the witnesses, we found that P.W.1 Girja could not be an eye-witness as he himself in paragraph-7 admitted that he had arrived at the scene of occurrence after hearing Hulla and when he reached there, he found the deceased dead which was verified by touching the dead body. P.W.2 Mahipat Mahto also does not appear an eye-witness to the occurrence as he stated that he reached the place of occurrence on the Hulla of Sheonarayan Mahto, i.e., the informant. He further stated that he also heard the cries of acquitted accused Bishwanath Mahto who happened to be the father of the two appellants who was asking the two appellants to kill the lady by shouting Maro-Maro. P.W.2 stated in paragraph 5 that he was frightened and he did not move from the place he was working and when he reached at the place of occurrence he found that the lady was already dead. P.W.2 stated in paragraph 5 that he was frightened and he did not move from the place he was working and when he reached at the place of occurrence he found that the lady was already dead. Thus, the solitary evidence of P.W.1 remained to be scrutinized by us and on scrutiny of the evidence of P.W.3 along with the evidence of P.W.5 the Investigating Officer, we find that there is doubt that P.W.3 could be an eye-witness or anyone could have seen the offence being committed by the appellants. There are many reasons for holding the above view. 5. The basic prosecution story is that the lady was scraping grass and that the informant had gone, as may appear from his evidence, to pluck vegetables with a basket. P.W.3 stated that after the grass which was scraped by his mother along with the basket and rope as also the sickle were all left lying at the place of occurrence. Likewise, his own basket which was carried by P.W.3 for keeping the plucked vegetables therein along with a few kilograms of the vegetables were left lying at the place of occurrence. The Investigating Officer in his evidence categorically stated that he did not find any signs of plucking vegetables nor did he find any basket either for storing the plucked vegetables or the basket or rope along with the sickle which was carried by the deceased for scraping grass. The claim of P.W.3 was that the field from where he was to pluck vegetables had been taken by him on Batai from one Chandrama Singh. But, he admitted in paragraph-9 that he did not remember either the plot number or the khata number of the field. The learned trial judge was perfectly correct in holding that one may not remember the plot number or khata number of the particular land but if someone had grown vegetables and had tended it so much so as to get vegetables from it and that too in his own village, then one is supposed to know the boundary of the land, which boundary was not stated by P.W.3 during his evidence. The Investigating Officer stated that he did not find any signs of plucking of vegetables and again in spite of having stated that he had found some blood at the place of occurrence, was stating in cross-examination that he had not mentioned it in his case diary that he had found any drop of blood fallen anywhere at that particular place. P.W.3 the informant stated that he had also run to the place of occurrence on hearing the shouts of acquitted accused Bishwanath who was asking the appellants to kill the lady by loudly speaking Maro-Maro. 6. On a careful consideration of the evidence of P.W.3, what appears is that it might be a probability that P.W.3 had also arrived at the place of occurrence when the lady was already dead as he appears definitely having not witnessed the occurrence which is evidently clear from paragraph-11 of his evidence when he stated that when he reached there, he found his mother lying unconscious and after a few moments she breathed her last at the very spot. It appears extremely unacceptable that the accused persons should have remained standing so as to be found there for being implicated as the authors of the crime. The other reason for not acting on the evidence of P.W.3 is that he had initially named only the two appellants as accused who had assaulted his mother and he had not left the slightest scope for implicating the third person. However, while he was deposing in court, he was implicating the father of the two appellants, namely, Bishwanath Mahto not only by naming him but by assigning a particular role to him. It is true that the said Bishwanath Mahto has been acquitted by the court below, but we are more concerned about the tendency in the prosecution witness to implicate an innocent person falsely and thus leaving a chance to infer that his evidence could not be safe on account of the witness being prone to implicate innocent persons. On the above reasons, we find that the evidence of P.W.3 was not that of a trustworthy witness which could be relied upon for upholding the judgment of conviction and order of sentence passed upon them. 7. In the result, the two appeals are allowed. The judgment of conviction and order of sentence are hereby set aside. On the above reasons, we find that the evidence of P.W.3 was not that of a trustworthy witness which could be relied upon for upholding the judgment of conviction and order of sentence passed upon them. 7. In the result, the two appeals are allowed. The judgment of conviction and order of sentence are hereby set aside. The two appellants are acquitted of the charge they had been found guilty of. They are on bail. They shall stand discharged from the liabilities of their respective bonds. Appeal allowed.