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2014 DIGILAW 1227 (PAT)

Bihari Mahato v. The State of Bihar

2014-12-12

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

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JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) The present appeal has been filed by the three appellants being aggrieved by the judgment of conviction and order of sentence dated 25.5.1992 passed by the Ist Additional Sessions Judge, Nalanda in Sessions Trial No. 53 and 217 of 1988 by which all the three appellants have been first found guilty for the offence punishable under Section 395 of the Indian Penal Code and appellants Bihari Mahato and Ram Dev Dushad have been then found further guilty of offence punishable under Section 412 of the Indian Penal Code. They have all been sentenced to a maximum of life with sentence to run concurrently with other sentences separately given. 2. Heard Mr. Sachchidanand Choudhary learned counsel for the appellants and Mr. Ajay Mishra learned APP for the State. 3. Learned counsel for the appellants submits that the entire prosecution case is basically based on two aspects. One is the alleged identification of appellant Bihari Mahato and appellant Suren Mahato @ Surendra Mahato by Sashibala Devi (PW 1) and recovery of certain articles of dacoity from the house of appellant Bihari Mahato and appellant Ramdeo Dusadah. There are no other circumstances to implicate the appellants. The evidence in support of these circumstances, as the submissions of the appellants would show, are not so as to justify conviction. On the other hand learned APP submits that there being positive identification of two appellants by PW 1 and recovery of articles which were looted at the time of dacoity from the house of the appellants is sufficient evidence to convict the appellants. 4. These are the rival submissions we have to see in the judgment. 5. The prosecution case is based upon the fard-beyan of Kapil Prasad (PW 11) as recorded at about 2.30 am on 13.7.1986 by Shri Ashok Kumar, S. I. of Islampur Police Station at the residence of the informant in village Murgiachak. It is, inter alia, alleged that when the informant and his family members were sleeping, at about mid night, the informant heard the shouts of his mother and sister and realized that a dacoity was being committed in his house. He remained in his room but after some times dacoits knocked at his door, tried to break it open, he came out and he found about 18-19 dacoits, they were beating up his brother Bhushan Prasad (PW 7). He remained in his room but after some times dacoits knocked at his door, tried to break it open, he came out and he found about 18-19 dacoits, they were beating up his brother Bhushan Prasad (PW 7). He managed to escape from the house and went shouting for help in the village. After some times he came back, the dacoits had escaped after firing. He found they had injured his father by gunshot. They had injured his immediate neighbour Ram Chandra Mahato again by gunshot. They had carried away in a suit case and in a box, clothes, house holds articles and some pieces of silver and gold jewelries which ladies were wearing and were kept. In the fard-beyan itself it is stated that his sister’s daughter Sashibala Devi (PW 1) who had been living there and had been married in village Bethauli and was a widow had identified the appellant Bihari Mahato and Surendra Mahato @ Suren Mahato, both residents of Bethauli amongst the dacoits. Upon this fard-beyan being recorded the Police registered the case under Sections 395/397 of the Indian Penal Code and a formal FIR was registered at about 7.00 am against Surendra Mahato and Bihari Mahato and 18 others. In the fard-beyan itself it is stated that the two injured persons i.e. the father of the informant and the neighbour were sent to private doctor for medical examination and treatment. Upon the fard-beyan being recorded, the Police took up the investigation. 6. At this stage, it may be relevant to notice certain material fact which is glaring and apparent from the records. The place of occurrence is in village Murgiachak which is under Islampur Police Station in the district of Nalanda. There is another village i.e Bethauli which is under Hulasganj Police Station in the district of Jehanabad. This village is the village where Phuliya Devi (PW 5) who is the sister of the informant and mother of PW 1 Sashibala Devi was married. She had become a widow and had no male child. She had been for some time living with the informant at village Murgiachak. The two appellants who were named in the FIR were of this village Bethauli. PW 1 Sashibala Devi being the daughter of the sister of the informant was recently married (about two months back) and her husband’s village is Kharijama under the Islampur Police Station itself district Nalanda. The two appellants who were named in the FIR were of this village Bethauli. PW 1 Sashibala Devi being the daughter of the sister of the informant was recently married (about two months back) and her husband’s village is Kharijama under the Islampur Police Station itself district Nalanda. 7. It appears, immediately after the first information report was registered, the Police went to village Bethauli in search of two FIR named persons i.e. the appellant Bihari Mahato and appellant Suren Mahato @ Surendra Mahato. They were arrested from their houses. It is said that from appellant Bihari Mahato’s house certain recoveries were made with regard to clothes, utensils which are alleged to have been articles which were looted. From the house of Suren Mahato @ Surendra Mahato there was no recovery but two live cartridges of .315 bore is said to have been recovered from his person for which separate action was taken by the Police. Later on some articles were found abandoned which were also seized. After some days, the house of appellant Ramdev Dushad was raided and certain household articles and goods were recovered allegedly, the looted properties. He was also thereafter, arrested. Upon completion of investigation chargesheet was submitted and cognizance having been taken, the case was committed to the court of Sessions where charges were framed against the appellants who pleaded not guilty. They were tried and convicted as aforesaid. Hence the appeal. 8. In order to establish the prosecution case, the prosecution has examined 12 witnesses. Suffice to say that except PW 1 Sashibala Devi, the daughter of informant’s sister, no one has identified any person. We may note that in the fard-beyan itself, the informant states that the identity of appellant Bihari Mahato and Suren Mahato @ Surendra Mahato was disclosed to him by his niece (PW 1). Though, when he comes to court, he makes an attempt to show that he had also identified the appellants but then he admits in the cross-examination that the names and identity of the appellants were disclosed by PW 1. Similar is the statement of other witnesses who have witnessed the incident. Though, when he comes to court, he makes an attempt to show that he had also identified the appellants but then he admits in the cross-examination that the names and identity of the appellants were disclosed by PW 1. Similar is the statement of other witnesses who have witnessed the incident. It may also be noticed that the father of the informant, who was injured by firearm injury in course of incident, being one Chhotu Mahato was examined as PW 6 but he was declared hostile as he refused to support the prosecution story implicating the appellants. The injured neighbour Ram Chandra Mahto has not been examined in court at all. 9. It may also be relevant to note here that, in substance, the submissions on behalf of the appellants is that they don’t deny the factum of dacoity, they don’t deny the factum of injury on Chhotu Mahato (PW 6) or for that matter Ramchandra Mahato who has not been examined in the Court. What they challenge is the implication of the three appellants in the present case and for good reasons as we will show. 10. It would be convenient first to refer to materials that exist as against appellant Ramdev Dushad. As we have seen, he has not been named in the FIR. In all the prosecution witnesses, there is not a whisper so far as this appellant is concerned. When we come to the evidence of Investigating Officer, PW 12 Ashok Kumar, he just says that about a month after the incident, he raided the house of appellant Ramdev Dushad and recovered certain clothes and house hold utensils. They along with the articles which were seized from the house of appellant Bihari Mahato were put on test identification parade and had been identified by Sharda Devi PW 8 the wife of informant who herself was merely a hearsay witness. Appellant Ramdev Dushad also belongs to village Bethauli and not to village Murgiachak. Therefore, there is no question of he being identified by any one. How Police at all landed up at his doorsteps is a mystery. Then we come to the articles that were recovered from his house and its identification by PW 8 Sharda Devi. It is said that the test identification was set up and conducted by the Circle Officer, Adalat Singh (PW 3). How Police at all landed up at his doorsteps is a mystery. Then we come to the articles that were recovered from his house and its identification by PW 8 Sharda Devi. It is said that the test identification was set up and conducted by the Circle Officer, Adalat Singh (PW 3). When we see the evidence of PW 3 and read with the evidence of PW 8 and see the articles that were identified first we have to note that what were the articles that were put for identification and how they were mixed up with similar other articles is not clear. That is the first Rule of testing in course of identification. The second is the independent witnesses who were there and have signed the test identification chart, they ought to have been examined to show that the identification test was done properly and what was identified and whether it was so mentioned elsewhere. None of the witnesses have been examined in court. Now we may note that what were identified were ladies garments and few household utensils. Apparently, none were of any special make or marking. They are all available in all houses. They are all common articles of house. Then, in this connection, we may also refer to the evidence of Rambabu Prasad (PW 2). He has produced the material evidence which were seized and later alleged to be identified in the court. As noted above, articles were seized from three different places i.e the house of appellant Bihari Mahato, the house of appellant Ramdev Dushad and from evidence it seems from another house of another person who was not even chargesheeted. Some articles were found abandoned were also seized. This PW 2 brings all the articles tied in one bundle. They are neither separate nor are they marked as to the place of recovery. In the court no one identified them as part of the looted property. They were all along kept with the Police itself and only on the day when they were to be produced in the court they were all bundled and sent. In such a situation, we find it difficult to rely upon the alleged identification in course of test identification parade of the articles. There may have been some recovery but they were all in respect of articles of daily use from any houses. There were nothing special about them. In such a situation, we find it difficult to rely upon the alleged identification in course of test identification parade of the articles. There may have been some recovery but they were all in respect of articles of daily use from any houses. There were nothing special about them. Thus, even though the prosecution may be taken to have succeeded in proving the certain recoveries but it has failed to prove that the recovery was of the articles which were looted from the house in question. Thus, in our view, on basis of recovery neither Bihari Mahato nor Ramdev Dushad can be convicted. 11. Next we may consider the prosecution case of appellant Bihari Mahato and appellant Suren Mahato @ Surendra Mahato having been identified and named in the fard-beyan itself. Their identity was disclosed by Sashibala Devi (PW 1) whose mother is Phulia Devi (PW 5). If we see the evidence of two ladies i.e. the mother and daughter few facts come out clear. Phulia Devi was married in the village Bethauli. Her husband had some properties. She had no male child. Her husband died not very long back. There was partition in the family of her husband at Bethauli, though these two appellants i.e. Bihari Mahato and Suren Mahato @ Surendra Mahato got their share of land in the partition, they refused to vacate the land which was allotted to Phulia Devi (PW 5). This is admitted by these two witnesses. The defence and the appellants thus, submit that there was a very strong motive on part of the prosecution to implicate these two appellants. They were well known to these two ladies. They were close agnates of the husband of PW 5 Phulia Devi. They were inimical to them. 12. Having considered the matter, we accept the submission on behalf of the appellants. The reason is that all the witnesses who were present at the time of occurrence are first agreed that it was late in the night, it was dark in the house, all the dacoits were covering their faces, still it was only PW 1 Sashibala Devi who recognized two of the dacoits as the appellants who were her father’s close agnates and were not vacating the land which was allotted in the share of her mother PW 5. That is strange. That is strange. It appears that though the dacoity had taken place and that had been consistent stand of the prosecution but towards end realizing the futility of implicating appellants a slight twist was made to the prosecution case. The informant, his other sister Kunti Devi (PW 10), the mother of informant Patia Devi (PW 9) and the wife of the informant Sharda Devi (PW 8) make improvement and they themselves make suggestions that probably the appellants had been sent by the inlaws of Phulia Devi PW 5 to kill her and deprive her of her share in the property in her sasural. An absurd story on the face of it because if the dacoits were ready to shoot and in fact shot the father of Phulia Devi i.e. father of the informant as well namely, Chotu Mahato (PW 6) and their neighbour Ramchandra Mahato who was never examined in the court and Phulia Devi was well known to them she was not even assaulted. The story of all the appellants having come to kill her is beyond imagination. This clearly shows and we hold that in fact, a dacoity was committed, articles were looted and people were shot but three appellants have clearly been falsely implicated. There is strong motive for false implication as indicated above. The father of the informant who is the father of Phulia Devi as well and grandfather of Sashibala Devi has turned hostile while the old man was at this stage not ready to join in the false accusation being leveled by the prosecution in order to falsely implicate. Though he was shot, he was declared hostile. 13. In view of the aforesaid, it cannot be said that the prosecution had fully succeeded in establishing its case beyond reasonable doubt. Serious doubts had arisen about the genuineness of the implication of three appellants for the reasons stated above. Accordingly, we have no option but to set aside the judgment of conviction and order of sentence and allow this appeal as preferred by the three appellants. They are freed from the bail bonds. Appeal allowed.