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2014 DIGILAW 134 (PAT)

Laddu Sah v. State of Bihar

2014-01-28

I.A.ANSARI, SAMARENDRA PRATAP SINGH

body2014
JUDGMENT : I.A. Ansari, J.-Both the appeals have arisen out of judgment, dated 20.12.2011, passed, in Sessions Trial Nos.220 of 2004, 221 of 2004 and 222 of 2004, arising out of Khagaria Rail P.S. Case No. 54 of 2002, by learned Additional Sessions Judge, F.T.C.-3, Khagaria, convicting the present two appellants, namely, Laddu Sah and Ranjeet Singh, under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959. Following their conviction under Section 302 read with Section 34 of the Indian Penal Code, learned trial Court has, vide impugned order, dated 22.12.2011, sentenced the appellants to undergo imprisonment for life with fine of Rs. 5,000/- each and, in default of payment of fine, suffer Simple Imprisonment for two months and to further suffer, for their conviction under Section 27 of the Arms Act, 1959, rigorous imprisonment for two years with fine of Rs. 1,000/ - each and, in default of payment, suffer Simple Imprisonment for one month, all the sentences having been directed to run concurrently. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as follows : (i) Indradeo Mahto @ Indradeo Sardar (since deceased) was a mukhiya (i.e. a head-man of his village). On 6.10.2002, he was busy in distributing, in the compound of a local school, wheat, as flood relief. Since the stock of wheat fell short of the requirement, he left, at about 5 p.m., for the Block Office to obtain more wheat for being distributed, as a relief item, to the affected people of the locality. While leaving the school, Indradeo asked his elder brother, Kapildeo Mahto (PW 8) to wait. (ii) As Indradeo Mahto did not return, his brother, Kapildeo Mahto (PW 8), accompanied by Raja Mahto (PW 4), Ram Bahadur Mahto (PW 3), Dharmendra Kumar (PW 10) and 4-5 other persons, came out of the school looking for Indradeo Mahto. However, when they reached behind Railway Reservation Office, at Khagaria Railway Station, they saw Indradeo Mahto coming on a motorcycle, which Indradeo was driving, with Deodhar Singh (PW 5) as pillion rider. Suddenly, three persons, namely, Laddu Sah (appellant), Ranjeet Singh (appellant), Binod Mahto @ Bauna Mahto (since acquitted) appeared before the motorcycle. However, when they reached behind Railway Reservation Office, at Khagaria Railway Station, they saw Indradeo Mahto coming on a motorcycle, which Indradeo was driving, with Deodhar Singh (PW 5) as pillion rider. Suddenly, three persons, namely, Laddu Sah (appellant), Ranjeet Singh (appellant), Binod Mahto @ Bauna Mahto (since acquitted) appeared before the motorcycle. In the meanwhile, accused Navin Tulsiyan appeared there on foot, abused Indradeo Mahto and ordered the said three persons, namely, Laddu Sah, Ranjeet Singh and accused Binod Mahto @ Bauna Mahto (since acquitted) to kill Indradeo. On being so exhorted, accused Laddu Sah and Ranjeet Singh fired on Indradeo's stomach. After Indradeo fell down, accused Bauna @ Binod Mahto (since acquitted) fired from his pistol on the temporal region of Indradeo killing him on spot. (iii) Since the occurrence had taken place close to the Reservation Office, at Khagaria Railway Station, many people came rushing there and so did the police. A fardbeyan, describing the above occurrence, was lodged, in writing, by Kapildeo (PW 8). Based on this fardbeyan and treating the same as First Information Report (hereinafter referred to as 'F.I.R.'), Khagaria Rail P.S. Case No. 54 of 2002 was registered, under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, against four persons, namely, Navin Tulsiyan, Laddu Sah, Ranjeet Singh and Bauna Mahto @ Binod, who had been named in the First Information Report. (iv) During investigation, police held inquest over the said dead body and prepare inquest report. The said dead body was also subjected to post-mortem examination and, on completion of investigation, a charge-sheet was laid, under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, against accused Laddu Sah, Ranjeet Singh, Binod Mahto @ Bauna Mahto and Raja Ram Mahto. 3. At the trial, when charges, under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, were framed, all the accused aforementioned pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 12 witnesses. 3. At the trial, when charges, under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, were framed, all the accused aforementioned pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 12 witnesses. All the accused aforementioned were, then, examined under Section 313(1)(b), Cr PC and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them, the case of defence being that of denial and of the accused having been falsely implicated due to dispute with the deceased and his family. No evidence was adduced by the defence. 5. Having reached the conclusion that accused Laddu Sah and Ranjeet Singh stood proved guilty of the offences, which they had been charged with, learned trial Court convicted them accordingly and passed sentences against them as has been mentioned above. Learned trial Court, having also concluded that the charges against the remaining accused, namely, Binod Mahto @ Bauna and Raja Ram Mahto, could not be proved beyond reasonable doubt, acquitted them accordingly. 6. Aggrieved by their conviction and the sentences, which have been passed against them, both the convicted persons, namely, Laddu Sah and Ranjeet Singh, have preferred appeals. While the appeal, which has been preferred by Laddu Sah, has given rise to Cr. Appeal (DB) No. 15 of 2012, the appeal, which has been preferred by the convict, Ranjeet Singh, has given rise to Cr. Appeal (DB) No. 65 of 2012. 7. We have heard Mr. Suraj Narayan Prasad Sinha, learned senior counsel, appearing on behalf of the appellant, Ranjeet Singh, and Mr. Akhileshwar Prasad Singh, learned senior counsel, appearing on behalf of the appellant, Laddu Sah. We have also heard Mr. Ashwani Kumar Sinha and Mr. S.C. Mishra, learned Additional Public Prosecutors for the State. 8. While considering the present appeal, it needs to be borne in mind that it is not in dispute that it was PW 11 (the doctor) who had performed post-mortem examination on the dead body of Indradeo Mahto, on 7.10.2002, and found the following ante mortem injuries : (1) Lacerated wound over left side of upper abdomen just below coasted margin 1/3" x 1/3" incise with blackening and charing present around the wound. Margin inverted. That is wound of entry. Margin inverted. That is wound of entry. (2) Lacerated wound over right side of back below scapula 1" x 1". Margin inverted. Wound of exit. (3) Lacerated wound over lateral side of chest in mid auxiliary line 1/3" x 1/3" into cavity deep with blackening and charing present around the wound. Margin inverted. Wound of entry. (4) Lacerated wound over right side of chest back 3" below scapula 1" x 1". Margin inverted. Wound of exit. (5) Lacerated wound by side of left ear 1/3" x 1/3" into (sic) cavity deep with blackening and charing. Margin inverted. Wound of entry. (6) Lacerated wound on right ear 1" x 1'' with blood present in the right ear and external (sic) canal lacerated. Margin inverted. Wound of exit. 9. In the opinion of the doctor, the death was caused due to shock and haemorrhage on being shot by fire-arm. 10. The findings of the doctor (PW 11) and his opinion, with regard to the cause of death, have not been in dispute at the trial. This apart, we, too, do not notice anything inherently incorrect or improbable in the findings of the doctor or in his opinion with regard to the cause of death. 11. Bearing in mind, therefore, that Indradeo Mahto had been put to death by shooting him with the help of fire-arm, let us proceed to consider the evidence of the informant, Kapildeo Mahto (PW 8). According to the evidence of PW 8, on 6.10.2002, wheat, as a relief material, was distributed by his younger brother, Indradeo Sardar @ mukhiya (since deceased) and the distribution continued till about 5 p.m., but on realizing that the quantity of wheat, made available, fell short of the requirement, Indradeo left for the Block Office asking PW 8 to wait for about half-an-hour. When Indradeo did not return, the informant (PW 8), accompanied by 5-6 others, started looking for his younger brother. Indradeo, and, at that point of time, they saw Indradeo coming, on a motorcycle, with Deodhar (PW 5) sitting as a pillion rider. 12. Describing the occurrence further, PW 8 has deposed that while his younger brother, Indradeo, was coming on a motorcycle as mentioned above, three persons appeared in front of Indradeo's motorcycle, and out of the said three persons, he (PW 8) could recognize accused Laddu Sah and accused Ranjeet Singh, but could not identify the third one. 12. Describing the occurrence further, PW 8 has deposed that while his younger brother, Indradeo, was coming on a motorcycle as mentioned above, three persons appeared in front of Indradeo's motorcycle, and out of the said three persons, he (PW 8) could recognize accused Laddu Sah and accused Ranjeet Singh, but could not identify the third one. PW 8 has also deposed that he, then, saw Navin Tulsiyan (since acquitted) and Raja Mahto (since acquitted) coining there and Navin Tulsiyan (since acquitted) asking the said three persons including accused Laddu Sah and accused Ranjeet Singh to kill Indradeo and, on being so exhorted, Laddu Sah opened fire from a pistol and the bullet hit left side of Indradeo's abdomen. PW 8 has further deposed that accused Ranjeet Singh, too, fired and the bullet hit Indradeo's abdomen. 13. What is, now, extremely important to note is that in the fardbeyan, which has come to be treated as the First Information Report (Ext. 1), the informant (PW 8) had claimed that the three men, who had appeared in front of the motorcycle, were accused Laddu Sah, accused Ranjeet Singh and accused Bauna (since acquitted). What is equally important to note, in this regard, is that PW 8 admits that the contents of Ext. 1 were read out and explained to him and, on being satisfied, he had put his signature thereon. 14. Explaining, however, the reason for mentioning the name of accused Bauna in the First Information Report, PW 8 has deposed that he had signed Ext. 1 on being asked by one Lutan, a co-villager, and henchmen of accused Navin Tulsiyan (since acquitted). 15. It is, therefore, apparent from the evidence of PW 8 himself that the contents of the First Information Report were known to PW 8 and the contents of Ext. 1 implicated accused Bauna as one of the assailants, though accused Bauna, according to the evidence of the informant (PW 8) was even present at the place of occurrence. A witness, who can go to the extent of implicating a person, in a case of murder, who had not, if the informant (PW 8) has to be believed, participated in the occurrence of shooting, could not have been implicitly relied upon even with regard to the other two accused, namely, accused Laddu Sah and accused Ranjeet Singh. 16. A witness, who can go to the extent of implicating a person, in a case of murder, who had not, if the informant (PW 8) has to be believed, participated in the occurrence of shooting, could not have been implicitly relied upon even with regard to the other two accused, namely, accused Laddu Sah and accused Ranjeet Singh. 16. In fact, a person, such as, PW 8, who, admittedly, implicates and ropes in an innocent person, if accused Bauna was innocent, ought to have been treated as a witness, who is wholly unworthy of trust and unsafe to place reliance upon. 17. Bearing in mind the quality of evidence of the informant (PW 8), who has projected himself to be an eye-witness of the occurrence, though it is impossible to confidently hold, on the basis of his discredited evidence, that he had witnessed the occurrence, we turn to the evidence of PW 3, who, too, projected himself as an eye-witness, but his evidence, as the impugned judgment reflects, has not been found to be free from doubt. 18. According to PW 3's evidence, on the date of the occurrence, i.e. on 6.10.2002, at about 7 p.m., Indradeo had gone to Block Office to fetch more wheat and he saw Indradeo returning, on a motorcycle, with Deodhar (PW 5) sitting on the pillon of the motorcycle, which was being driven by Indradeo. It is the evidence of PW 3 that when Indradeo was proceeding on his motorcycle, accused Navin Tulsiyan (since acquitted) and Raja Mahto came and from the western direction, three more persons came and, amongst the three persons, who so came, accused Laddu Sah and accused Ranjeet Singh were present and, on being asked by accused Navin Tulsiyan (since acquitted) accused Laddu Sah and, thereafter accused Ranjeet Singh fired from their respective fire-arms on Indradeo and ran away. 19. It is the clear evidence of PW 3 that he could not identify the third man, who had accompanied accused Laddu Sah and accused Ranjeet Singh. 20. What is pertinent to note, while considering the evidence of PW 3, is that in his cross-examination, he has deposed that he had heard four rounds of bullet being fired, when he reached the compound of Reservation Office and saw mukhiya i.e. Indradeo falling. 21. 20. What is pertinent to note, while considering the evidence of PW 3, is that in his cross-examination, he has deposed that he had heard four rounds of bullet being fired, when he reached the compound of Reservation Office and saw mukhiya i.e. Indradeo falling. 21. Apart from the fact that the learned trial Court has, on the basis of the evidence so given by PW 3, held that PW 3 could not have been said to be an eye-witness to the occurrence of firing so far as his claim that accused Laddu Sah and accused Ranjeet Singh had fired from their fire-arms, what is curious to note is that the informant (PW 8), who has claimed to be an eye-witness, did not give any indication that he had seen PW 3 at or near the place of occurrence either at the time of the occurrence or soon thereafter. Similarly, PW 3, too, has claimed to be an eye-witness or, at least, a witness, who claims to have seen the assailants and also had heard bullets being fired, does not claim, in his evidence, that he had seen the informant at or near the place of occurrence either at the time, when the occurrence took place, or soon thereafter. Far from this, the evidence of PW 3 is that he did not see any known person at the place of occurrence meaning thereby that even PW 8 was not present at the place of occurrence. 22. Both the witnesses, namely, PW 3 and PW 8, thus, exclude the presence of each other from the place of occurrence, though both of them claim to be eye-witnesses to the occurrence. This apart, PW 3, according to the evidence on record, is a close relative of the said deceased and he (PW 3), had disputes with accused Laddu Sah, accused Ranjeet Singh and Navin Tulsiyan (since acquitted). 23. More importantly, PW 3 claims that when police came to the place of occurrence, he (PW 3) was present there; but neither PW 3 informed the police about the occurrence and who the assailants were not was his statement recorded by the police soon after the occurrence. 23. More importantly, PW 3 claims that when police came to the place of occurrence, he (PW 3) was present there; but neither PW 3 informed the police about the occurrence and who the assailants were not was his statement recorded by the police soon after the occurrence. It is equally important to note that according to PW 3, he proceeded in search of the said deceased along with Kapildeo (PW 1), but PW 8 does not say that PW 3 was present with him (PW 8), when the occurrence had taken place. 24. Coupled with the above, the evidence bf PW 3 is to the effect that accused Laddu Sah had fired on the ear pit; whereas the First Information Report alleges that it was accused Bauna (since acquitted), who had fired on the temporal region of the said deceased. 25. Situated thus, it is crystal clear that the evidence of PW 3 could not have been relied upon by the learned trial Court to hold that PW 3 had witnessed the occurrence or that the present appellants were the assailants. 26. Similarly, so far as PW 2 is concerned, he has also claimed to have seen mukhiya being shot by accused Laddu Sah and accused Ranjeet Singh on being asked by accused Navin Tulsiyan (since acquitted). 27. It is, however, important to note that PW 2 has deposed, in the cross-examination, that he cannot say if accused Bauna was present at the place of occurrence. PW 2 is a close relative of the said deceased; yet his statement was not recorded on the night of the occurrence or soon thereafter. It is the evidence of PW 2 that he heard a sound of firing, when he was behind the reservation office. In such circumstances, he cannot be treated to be an eye-witness. 28. Even PW 2 did not report to the police, when the police arrived at the place of occurrence, about how the occurrence had taken place. Interestingly enough, PW 2 admits that he did not give any information about the occurrence to the family members of mukhiya and he also deposes that he sent information, on the following day, to the house of mukhiya. 29. Interestingly enough, PW 2 admits that he did not give any information about the occurrence to the family members of mukhiya and he also deposes that he sent information, on the following day, to the house of mukhiya. 29. What is wholly impossible to ignore is that according to the evidence of PW 2, he did not go to the house of the deceased; rather, he went to his own house and, on the following day, sent information to the house of the deceased. When PW 2 was a close relative of the said deceased and when the presence of PW 2, at the place of occurrence, is not acknowledged either by PW 8 or by PW 3 and when PW 2 did not even go to the house of the deceased nor was his statement recorded by the police soon after the occurrence, he cannot be relied upon. 30. The above discussion of the evidence on record bring us to the evidence of PW 5 (devdhar), who was, admittedly, the pillion rider, on the motorcycle, when Indradeo was shot. The evidence of PW 5 is to the effect that while he was coming on the motorcycle, which was being driven by the said deceased, somebody fired from behind, which hit him (PW 5) in his trouser and also hit the said deceased, who fell down from the motorcycle and that he (PW 5), too, fell down and ran away to save his life. 31. It is the clear evidence of PW 5 that he did not see any bullets being fired meaning thereby that no one appeared before the motorcycle, which was being driven by the said deceased, and no one stood before the motorcycle and fired at Indradeo and/or that it was accused Navin Tulsiyan (since acquitted), who had exhorted others to shoot at the said deceased. 32. The whole evidence of PW 5 has gone unchallenged by the prosecution. In such a situation, he, being admittedly, present on the motorcycle, his evidence cannot be discarded and if his evidence is believed, which we see no reason to disbelieve. Indradeo had been shot at from behind, while he was proceeding on the motorcycle with Devdhar (PW 5) as pillion rider. In such a situation, he, being admittedly, present on the motorcycle, his evidence cannot be discarded and if his evidence is believed, which we see no reason to disbelieve. Indradeo had been shot at from behind, while he was proceeding on the motorcycle with Devdhar (PW 5) as pillion rider. The description of the occurrence, so given by PW 5 bellies the evidence of not only PW 8 but also PW 2 and PW 3 who have claimed that three men appeared before Indradeo's motorcycle and on being exhorted by Navin Tulsiyan (since acquitted), the said three men fired at Indradeo meaning thereby that Indradeo was shot from front side; whereas Indradeo was shot, according to PW 5, from behind. 33. So far as PWs 1, 4, 6, 7 and 10 are concerned, they have not supported the case of the prosecution. In fact, PW 4 has deposed that he went to the house of PWs 2 and 3 to inform them about the occurrence. This shows that PWs 2 and 3 were not present at the place of occurrence, when the occurrence had taken place. 34. Coming to the evidence of PW 9, widow of the said deceased, we notice that she had, admittedly, not witnessed the occurrence. What is, however, of immense importance to note, in her evidence, is that according to her, accused Bauna was a driver at the time of occurrence and he was not involved in the murder of her husband. It is also the evidence of PW 9 that accused Bauna has been falsely implicated in the case inasmuch as Bauna was present at her house, when a rickshaw pullar shouted that Indradeo had been murdered. Curiously enough, PW 9 has deposed that she specifically asked Kapildeo (PW 8) as to why Bauna had been implicated and PW 8 had told her that he (PW 8) had mentioned the name of assailants on the basis of what he had heard. This is yet another circumstance, which goes to show that PW 8 was not an eye-witness, and PW 3, who claims, at one stage, to have accompanied PW 8, can also not be regarded as an eye-witness. 35. Further-more, it is the clear evidence of PW 9 that on the protest being raised by her, PW 8 made an application, in the Court, stating therein that Bauna Mahto was innocent. 36. 35. Further-more, it is the clear evidence of PW 9 that on the protest being raised by her, PW 8 made an application, in the Court, stating therein that Bauna Mahto was innocent. 36. Because of what has been discussed and pointed out above, it clearly emerges that there was not credible, clinching and reliable evidence on record, adduced by the prosecution, which could have been made foundation for convicting the two accused-appellants. At any rate, in the face of evidence on record, which was nothing, but an admixture of half-truth and untruth, the two accused-appellants ought to have been accorded, at least, benefit of doubt. 37. In the result and for the forgoing reasons, we allow the appeals. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. Both the accused-appellants are held not guilty of the offences, which they stand convicted of, and they arc hereby acquitted of the same under benefit of doubt. 38. Let both the accused-appellants be set at liberty forthwith unless they are required to be detained in case of any other case. 39. Send back the lower Court Records. Appeal allowed.