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2014 DIGILAW 1194 (PAT)

Chandeshwar Mahto v. State of Bihar

2014-12-05

AMARESH KUMAR LAL, DHARNIDHAR JHA

body2014
DHARNIDHAR JHA, J.:–The two appeals are directed against the judgment of conviction dated 28.05.1992 passed by learned Additional Sessions Judge-III, Nalanda at Biharsharif in Sessions Trial No.269 of 1981 by which the appellants of the two appeals were convicted of committing offences under Sections 302/34 and 201 IPC. They were heard on sentence on 29.05.1992 and were directed to suffer rigorous imprisonment for life under Section 302/34 IPC. No separate sentence was passed on the appellants for being convicted under Section 201 IPC. 2. The fardbeyan of P.W.6 Kailu Jamadar was the basis of the prosecution case. It was stated by him that he along with the two deceased Karu Beldar and Dasai Jamadar along with others named in the statement were returning from village Enayatpur where some earth cutting work was in progress. It was at about 6 P.M. on 05.06.1980 that while they were returning to their village with Mahavir Jamadar (not examined), Triveni Jamadar (P.W.2), Shankar Jamadar (P.W.5), Dasai Jamadar (deceased) and Karu Beldar (another deceased) and had approached village-Eksara, appellants Chandeshwar Mahto, Bindu Mahto, Jagat Mahto, Ram Bilash Mahto @ Bilash Mashto, Jagat Mahto, Sarjug Mahto and others were found assembled there. They stopped the informant and his companions. Appellant Chandeshwar Mahto is said to have requested the two deceased, i.e., Karu Beldar and Dasai Jamadar to stay over night with him in his house as he had to dig up a well on the auspicious moment fixed at 5 A.M. of the following day. The appellant Chandeshwar Mahto promised feeding them in the night. The two deceased agreed and stayed at the house of appellant Chandeshwar Mahto. 3. It so happened that at about 8 A.M. on 06.06.1980 when the informant Kailu Jamadar was proceeding to village-Enyatpur for cutting earth at the work site, he heard from a few ladies that two dead bodies of Beldars, i.e., earth cutters, were lying in the fields situated at village-Eksara. After hearing the above from the ladies, the informant stated that he went towards that place and found that indeed the two dead bodies were lying there which were of the two deceased, i.e., his brother Karu Beldar and his companion Dasai Jamadar. After hearing the above from the ladies, the informant stated that he went towards that place and found that indeed the two dead bodies were lying there which were of the two deceased, i.e., his brother Karu Beldar and his companion Dasai Jamadar. He, thereafter, went to his village to inform his villagers and all of them came to the place where the dead bodies were lying and kept watch on them till the police had arrived and the fardbayan of P.W.6 was recorded. 4. It is evident from the record that the investigating officer was not examined and, as such, we do not have any evidence as to how the investigation had proceeded after drawl of the FIR on the basis of fardbeyan of P.W.6, but it is evidently clear that inquest was held upon the two dead bodies in presence of P.Ws.7 and 8 and the inquest report Exts-2 and 2/1 were prepared in their presence and they had also signed the two documents. There could not be any doubt on account of the non-examination of the doctor that the autopsy had been held on the two dead bodies and the postmortem reports were prepared though those documents had also not been brought on record as is the case with the fardbeyan or the FIR. At any rate, the seven accused persons were sent up for trial which ended ultimately in the impugned judgment of conviction and order of sentence. 5. The defence of the appellants was of innocence and their false implication as they had not even been named in the FIR. 6. In order to bringing the charges home against the appellants, the prosecution examined as many as eight witnesses, out of whom, as we have just indicated, P.Ws.7 and 8 were witnesses to the inquest proceedings and had signed the two documents. P.W.4 Ram Nandan Jamadar was tendered for cross-examination and P.W.1 Ram Prasad, P.W.2 Triveni Jamadar, P.W.3 Bindeshwar Jamadar and P.W.5 Shankar Jamadar came to depose in favour of P.W.6 Kailu Jamadar, the informant of the case. P.W.4 Ram Nandan Jamadar was tendered for cross-examination and P.W.1 Ram Prasad, P.W.2 Triveni Jamadar, P.W.3 Bindeshwar Jamadar and P.W.5 Shankar Jamadar came to depose in favour of P.W.6 Kailu Jamadar, the informant of the case. They stated that it was the appellants who had met them while they were coming back from village-Enayatpur after finishing their earth-cutting-job at about 6 P.M. in the evening of 05-06-1980 when appellant Chandeshwar Mahto had requested the two deceased Karu Beldar and Dasai Jamadar to stay over night with him as he had to dig up a well and the Muhurat in that behalf had been fixed in the wee hours of the next morning, i.e., at about 5 A.M. The witnesses were consistently stating that the two deceased had stayed with appellant Chandeshwar Mahto on promise that he would feed them and the next morning at about 8 A.M. they were again going back to their work site when they could learn that two dead sbodies of earth cutters were lying in the field and they went there and found the two bodies of Karu Beldar and Dasai Jamadar lying there. We have extracted the FIR verbatim in paragraphs-2 and 3 of the present judgment and we find for the recital of the document, i.e., fardbayan of P.W.6, that he had not given any motive as to why the two innocent laborers would be killed either by appellant Chandeshwar Mahto or other appellants who had faced the trial. However, the witnesses, like, P.Ws.1,2,3 and 5 narrated a different story during the trial. They stated that about two days prior to the occurrence, appellant Chandeshwar Mahto and his son was coming with oxen and one of his servants as may appear from the evidence of P.W.2 in paragraph-4 when some one had snatched the watch and money from the son of appellant Chandeshwar Mahto. Appellant Chandeshwar Mahto had come to their village-Beldari (Gareriabigha) and had narrated the above facts and had threatened to teach the culprit a lesson and it was for that particular motive that the two deceased had been murdered. While perusing the evidence of those witnesses, we found that P.W.1 had stated the above facts in paragraph-4 but in that connection he had named appellant Chandeshwar Mahto and his son Bindu Mahto both coming together with the oxen when the incident of snatching watch and money had occurred. While perusing the evidence of those witnesses, we found that P.W.1 had stated the above facts in paragraph-4 but in that connection he had named appellant Chandeshwar Mahto and his son Bindu Mahto both coming together with the oxen when the incident of snatching watch and money had occurred. P.W.1 further stated that the villagers offered to appellant Chandeshwar Mahto that they would call the entire village and produce them before him and he should identify as to who had done it. But, appellant Chandeshwar Mahto did not agree on that. He came back without accepting the offer. P.W.2 Triveni Jamadar also stated the same fact of snatching the watch but in that connection he had named the son of appellant Chandeshwar Mahto, namely, Bindu Mahto and one of his servants. While P.W.1 stated that appellant Chandeshwar Mahto had come to his village on the same date P.W.2 stated that it was the next day of the incident of watch snatching, the appellant Chandeshwar Mahto had arrived with his son Bindu Mahto and had stated that it may be the son of certain Beldars who could have done it. P.W.2 also stated that the same offer was given to appellant Chandeshwar Mahto so that he could identify the real culprits, but he went away from there stating that he will himself point out the names after ascertaining them. P.W.2 was cross-examined on the above facts in paragraph-11 stated that the threat which was held out by appellant Chandeshwar Mahto was not sufficient to believe that the two persons should be killed. The threat was not reported either to the police or to the Panchayat officials and it was admitted by P.W.2 as also P.W.1 that there was no ill-will between the villagers and appellant Chandeshwar Mahto earlier for any reason. P.W.3 had given the same evidence in paragraph-3. P.W.5 had stated the same facts in paragraph-3. It is curious that in spite of P.Ws.1,2,3 and 5 having stated the fact which was directly concerned with appellant Chandeshwar Mahto, P.W.6 the informant of the case did not state anything about the motive of the occurrence. P.W.3 had given the same evidence in paragraph-3. P.W.5 had stated the same facts in paragraph-3. It is curious that in spite of P.Ws.1,2,3 and 5 having stated the fact which was directly concerned with appellant Chandeshwar Mahto, P.W.6 the informant of the case did not state anything about the motive of the occurrence. If at all appellant Chandeshwar Mahto had been moved in committing the offence of two murders for the reasons which was stated by the above said witnesses except P.W.6, then it would have been so prominently in the mind and memory of the informant as well as, that he ought not to have missed the important fact being stated either in his fardbeyan or while deposing in Court as regards the commission of the offence. Moreover, P.W.2 had stated that appellant Chandeshwar Mahto had said that himself would identify the person and get back to the villagers. The evidence of other witnesses also give rise to an inference that appellant Chandeshwar Mahto was not sure as to who had committed the offence of watch snatching and depriving him or his son of money. It does not come to reason as to he would commit murder of two innocent persons. We also find that from whom the watch had been snatched appears not proved to the hilt. P.W.1 stated that the watch had been snatched by appellant Chandeshwar Mahto while P.W.2 stated that it was the son of appellant Chandeshwar Mahto who had lost the watch. P.W.3 stated that it was the son of appellant Chandeshwar Mahto and he was accompanied by his servant whereas P.W. 5 stated that the watch of Bindu Mahto son of appellant Chandeshwar Mahto had been snatched. If this is the evidence which was given by the witnesses after so many years of the incident and which fact was not stated in the FIR, we have reservations in acting upon it. Moreover, we do not find that it were the two deceased who had participated in snatching the watch from any one. If they had not committed the act of snatching the watch either from appellant Chandeshwar Mahto or from his son why should appellant Chandeshwar Mahto should be so strongly feeling an urge to eliminate him. Moreover, we do not find that it were the two deceased who had participated in snatching the watch from any one. If they had not committed the act of snatching the watch either from appellant Chandeshwar Mahto or from his son why should appellant Chandeshwar Mahto should be so strongly feeling an urge to eliminate him. It would have been very easy for any one to lodge a report in respect of robbery of the watch or money which had been committed by known person so as to bringing the act into realm of criminal investigation to ensure that the man was arrested and was brought to justice by pursuing legal recourse. Thus, what we find is that the motive which was not initially stated in the fardbeyan of P.W.6 and who himself did not choose to state the fact in the Court was not established to our satisfaction. 7. The only circumstance which appears against the appellants was that appellant Chandeshwar Mahto had asked the two deceased to over stay with him as he had to get a well dug-up in the wee hours on 06.06.1980. While he was making the request, other appellants were also there under a Pipal tree as appears from the evidence of other witnesses. What happened in the night is not on record as no one had stated as to how the two deceased were murdered. The only circumstance was finding of the two dead bodies after hearing from some of the ladies about them lying in the fields of the villager. D.W.2 Ganpat Pandey, who was a Pandit, stated that it was the month of Malmas during which course no auspicious work is done due to absence of any auspicious moment in the Hindu Panchang. If it was like that, as was stated by the defence witnesses it looms into doubt as to why appellant Chandeshwar Mahto should get the well dug up after fixing an auspicious moment. That also creates a doubt regarding the veracity of the prosecution story. The basic prosecution story was that the informant and his companions including the two deceased used to cut earth at village-Enayatpur under the aegis of Ramji Prasad who was examined by the defence as D.W.1. That also creates a doubt regarding the veracity of the prosecution story. The basic prosecution story was that the informant and his companions including the two deceased used to cut earth at village-Enayatpur under the aegis of Ramji Prasad who was examined by the defence as D.W.1. The defence witness Ramji Prasad stated that there were no earth cutting work assigned to him and he had not engaged any labourers and there was indeed no earth cutting by any one. The investigating officer would have been the right person who would have informed us as to whether he had visited village-Enayatpur to inspect the site of earth cutting and could have perused the relevant records regarding the expenditure incurred on cutting the earth so as to satisfy the judicial conscience that indeed the genesis of the occurrence was properly probabilized. None examination of the investigating officer, in our opinion, had indeed deprived us from having some important evidence on some of the important aspects of the prosecution case which has created a defect in the prosecution case as regards proving of material facts. 8. So far as participation of the accused persons is concerned, we have already stated that there was no evidence that any one had seen them committing the offence. As regards their individual identification, the witnesses were faltering while identifying the accused persons in the dock. P.W.1 had identified only one appellant Sarjug Mahto correctly. He had identified Basudeo Prasad by his face and not by name and as regards appellant Ram Bilash Mahto @ Bilash Mahto, appellant Chandeshwar Mahto and accused Chandrashekhar Prasad he did not identify any of them in spite of their presence in the dock. So far identification by P.W.2 is concerned he appears having identified four accused persons who were present on that day in Court room. However, P.W.5 had very categorically stated that he did not identify appellants Ramu Mahto and Ram Bilash Mahto @ Bilash Mahto. As regards other accused persons, he had identified Basudeo Prasad and Chandreshekhar because other accused persons were not present and were represented by the counsel, the Court assumed that they could have also been identified by P.W.5. Thus, what we find is that P.Ws.1 and 5 had not at all identified some of the appellants. We are sure that the evidence of identification was not of any avail for either of the parties. Thus, what we find is that P.Ws.1 and 5 had not at all identified some of the appellants. We are sure that the evidence of identification was not of any avail for either of the parties. But, we have considered that aspect of evidence only to put on record that the witnesses could not be reassuring to us because they in fact had not properly identified all accused. 9. In a case of Prem Thakur Vs. State of Punjab reported in AIR 1983 SC 63 some labourers of Bihar had gone to Punjab to earn their livelihood. Accused Prem Thakur along with his five companions, who were the deceased in that case, had slept together. In the next morning the appellant Prem Thakur was found missing from the place of occurrence and the dead body of his five companions were found in a well at some depth at the platform which was created for fixing the motor for running the irrigation system. About 14 days back, the deceased and the appellant Prem Thakur had been paid a sum of Rs.2900/- out of which appellant and the deceased persons had spent Rs.800/- and the balance amount of Rs.2100/- was kept with one of the deceased Rama Nand. The motive which was alleged by the prosecution was that in order to digest and usurp the money, appellant Prem Thakur had killed his five companions and had placed the five dead bodies into the well on the platform and had himself disappeared. The dead bodies were also found not carrying any injuries. Appellant Prem Thakur, as we have already noted, had absconded from the village but the Apex Court held that it was very difficult for a single man, i.e., appellant Prem Thakur, firstly, to kill his five companions without any voice being heard by any one and then it was humanly not possible for appellant Prem Thakur to take the five dead bodies lower down into the well and place them at the platform. The Supreme Court, concluding in paragraph-11 of the report, observed as follows:– 11. The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt. Very often, circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. An a priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of a crime by resisting the frustrating feeling that no one can be identified as the author of that crime. In the case before us, there is no doubt that five persons were murdered. Unquestionably, every effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion. We are unable to share the High Court's view that the evidence showing "that the appellant was present with the deceased persons on the evening of Nov. 8, 1980 and he was then missing from there on the next morning proves the offences alleged against the appellant beyond any shadow of doubt". In support of its conclusion that the appellant had committed the murders, the High Court has even pressed into service the circumstances that the appellant was not present "at the place from which the dead bodies were recovered" the next morning. These are equivocal circumstances on which it is hazardous to base the conviction. 10. The case in hand may not be as similar as that of Prem Thakur as regards the number of dead bodies, but it is not very different from that case as well as regards the dead bodies. These are equivocal circumstances on which it is hazardous to base the conviction. 10. The case in hand may not be as similar as that of Prem Thakur as regards the number of dead bodies, but it is not very different from that case as well as regards the dead bodies. We do not have any evidence as to what was the distance between the house of appellant Chandeshwar Mahto and the field where the two dead bodies were found lying but which, nevertheless was very big. It could not have been a single hand which could have killed two persons and could have disposed of the two dead bodies, and that too, as we have just recorded, in absence of any motive as to why the appellant Chandeshwar Mahto should kill the deceased Karu Beldar and Dasai Jamadar, we cannot infer his participation merely because the evidence was that he had asked the two deceased to stay over in the night at his house. The purpose for which the two deceased had been requested, in our opinion, has not been established. The two deceased and the witnesses were returning after cutting the earth in village-Enayatpur appears not established as the very Mukhiya had lambasted the prosecution story as coming from the witnesses. We very well rely upon the observation of the Apex Court in the case of Prem Thakur (supra) that it was the a-prior situation that the appellants before us who were resident of village-Eksara had committed two murders and had disposed of the dead bodies. In view of the fact that the motive had not been established and also in view of the fact that the circumstances otherwise were too weak to lend credence to the prosecution story so as to raising an inference about the guilt of the accused persons in commission of the offence, we do not have any hesitation in noting that the prosecution had failed in proving the charges to the hilt. It was mere suspicion at the initial time of lodging of the fardbeyan and that suspicion appears looming large in the minds of the witnesses who were adding up some more spices to the story when they were narrating an incident of watch snatching as the central theme. 11. In the result, the appeals appears meritorious and are allowed. It was mere suspicion at the initial time of lodging of the fardbeyan and that suspicion appears looming large in the minds of the witnesses who were adding up some more spices to the story when they were narrating an incident of watch snatching as the central theme. 11. In the result, the appeals appears meritorious and are allowed. The seven appellants are acquitted of the charges they had been held guilty of. The appellants are on bail. They shall stand discharged from the liabilities of their respective bonds. ?