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2014 DIGILAW 691 (PAT)

Lochan Mahto v. State of Bihar

2014-06-20

ANJANA PRAKASH, DHARNIDHAR JHA

body2014
JUDGMENT (Per: HONOURABLE SHRI. JUSTICE DHARNIDHAR JHA) Nine accused persons were put on trial by the learned 4th Additional Sessions Judge, Motihari after being charged variously in Sessions Trial No.258 of 1982/45 of 1987. By judgment dated 18th of January, 1991, nine out of thirteen accused were acquitted of charges under Sections 147, 302/149 and 323 IPC and four appellants were held guilty of committing offence under Section 302/34 IPC. The appellants were heard under Section 235 Cr.P.C. and each of them was directed to suffer rigorous imprisonment for life. It may be pertinent to note that four appellants Lochan Mahto, Bachan Mahto, Mahendra Mahto and Ram Bilash Mahto had been charged under Section 323 IPC for assaulting the informant and deceased as well, but they had been acquitted of charge under Sections 147 and 323 IPC. The appellants have preferred the present appeal to question the propriety of findings and appropriateness of the sentence. 2. The incident related to 26th of April, 1982. It was in two parts. Initially two little children were playing in a guava orchard and they picked up fight between them, one of them, namely, Ashok Mahto being aged about six. Taking his son Ashok Mahto along with him appellant Lochan Mahto went near the guava tree and allegedly assaulted the other little child- a girl, who cried loudly attracting her mother Etwaria Devi (P.W.2). It was stated that P.W.2 protested the beating of Sumati Kumari and there was some altercation on that account. 3. This incident appears having occurred some time in the afternoon. 4. The prosecution stated that at about 4 P.M. on the same day, the girl Sumati Kumari went to fetch water from the well located at the Darwaja of one Raj Kishore Sahni and when she was coming with water and had reached near the house of appellant Lochan Mahto, he stating that it was she who had hurled abuses, gave a lathi blow to her. Indrashan Devi (P.W.1) raised hulla as a result of which the deceased Punkal Mahto and the informant went there. It was stated that 12-13 accused persons named in the FIR turned towards the informant and the deceased and started giving blows with lathi, phatha and lathi fixed with some iron substance as also Mungri. As appears from the fardbeyan, the assault was initially given to the informant. It was stated that 12-13 accused persons named in the FIR turned towards the informant and the deceased and started giving blows with lathi, phatha and lathi fixed with some iron substance as also Mungri. As appears from the fardbeyan, the assault was initially given to the informant. Appellant Locahn Mahto gave a blow with lathi on the head of the informant causing lacerated bleeding injury to his head. In addition to him Ram Ahodhya Mahto, Motilal Mahto and Bhagirath Mahto also assaulted the informant with lathi, fists and legs. The deceased Punkal Mahto was given blow with lathi on his head by the appellant Lochan Mahto, as a result of which he fell down whereafter he was assaulted by appellant Mahendra Mahto and acquitted accused Jailal Mahto and others. There was melee at the scene of occurrence which attracted the witnesses who arrived there after which the accused persons ran away from the place of occurrence. 5. On the basis of fardbeyan (Ext-2) of P.W.3 Ramashis Mahto, the FIR of the case (Ext-3) was drawn up and investigation was proceeded with. The investigating officer was not produced, as such, we do not have any inkling as to how it proceeded. What appears from the record is that nine accused persons were sent up for trial and the trial ended in the impugned judgment. 6. During course of trial, ten witnesses were examined. However, the informant of the case P.W.3 Ramashish Mahto with other eye witnesses including injured, like, Indrashan Devi (P.W.1), Etwaria Devi (P.W.2), Ram Pukar Mahto (P.W.4) and son of the informant Jhalbaj Sahni alias Sukeshwar Sahni (P.W.7) all turned hostile. Two of the witnesses, namely, Dhaneshwar Sahni and Pirthwiraj Sahni came forward to support the prosecution story. The other witnesses, like, P.W.5 Birendra Kumar and P.W. 9 Gauri Shankar Prasad Sinha were witnesses of formal character who brought on record the FIR and other documents. P.W.10 Dr. Birendra Kumar Agrwal had held postmortem examination on the dead body of the deceased Punkal Mahto and had found as many as five injuries and had prepared the postmortem examination report (Ext-4). 7. The learned trial Judge had placed reliance upon the evidence of P.Ws.6 and 8 after holding them fully reliable and convicted the four appellants while acquitting nine accused persons put on trial. 8. 7. The learned trial Judge had placed reliance upon the evidence of P.Ws.6 and 8 after holding them fully reliable and convicted the four appellants while acquitting nine accused persons put on trial. 8. It was contended by Sri Uma Kant Shukla, the learned counsel appearing on behalf of the appellants that the two witnesses were not fully reliable rather they had interest in deposing against the appellants so as to seeing them convicted and sentenced on account of previous enmity which was admitted by them. It was contended that the injured witnesses, like, the informant Ramasis Mahto, Etwaria Devi and Indrasan Devi all turned hostile and had not stated that it was the appellants who had participated in the commission of offence rather stated that some other persons had indulged into in the commission of the offence. 9. The learned Additional Public Prosecutor has countered the submissions of the appellants by submitting that the two eye witnesses had come to support the prosecution charges and they have been found trustworthy by the trial court and, as such, the appeal merits dismissal. 10. P.W.1 Indrashan Devi has supported the story to the extent that the deceased Punkal Mahto was assaulted on that day but stated that she could not identify the persons who had chased the deceased Punkal Mahto and had assaulted him. So far as the evidence of P.W.2 Etwaria Devi is concerned, she stated that there was some quarrel between the children of two sides, but she showed ignorance of the further facts. P.W.3 Ramashish Mahto who was himself injured as per the fardbeyan, did not even speak a word in support of his own case rather stated that the police had created a statement and asked him to put his signature over it and accordingly he signed the document. However, in further examination-in-chief, he supported the initial part of the story regarding quarrel between the children and further supported that at about 4 P.M. many persons on hearing hulla came and Etwaria Devi raised alarm that deceased Punkal Mahto, her brother, was being assaulted and when P.W.3 reached there some one gave a blow by lathi on his head as a result of which he fell down and became unconscious and, as such could not known about further details of the occurrence. Thus, what appears from the consideration of the evidence of P.Ws.1 and 3 is that in spite of having supported some part of the occurrence those witnesses were not inclined to narrate further facts as regards assault on deceased Punkal Mahto or P.W.3 Ramashish Mahto himself. The other supporting witnesses, like, Ram Pukar Mahto who happened to be the son of the informant and Jhalbaj Sahni alias Sukeshwar Sahni also did not state anything in support of the manner of occurrence and they were also declared hostile. Thus, material witnesses, like, the informantl, injured and some one else who was very much present at the scene of occurrence right from the initial part of it to its ultimate part appear not supporting the prosecution case, nor appear having identified any accused as having participated in commission of the offence. 11. It may be true that in spite of the informant going hostile some witnesses may come to support the charges and if the court finds him trustworthy it may not be impermissible to record a conviction. But that will be a rare situation where the court has to examine the veracity of the testimony of such witnesses in order to judging that they were wholly reliable. When one speaks of a witness being wholly reliable, what one means to point out is that the witness should be consistent both in his examination-in-chief and cross-examination. There should not be any material distortion in his evidence which could render him not reliable and dependable witness. In addition to this, the further requirement is that in such a situation the court has to be very caution in examining the evidence of such witness and it should be done with all care and caution to find out as to whether there could be any reason for such a witness to come forward in support of the prosecution charges. When the court, in absence of the evidence coming from the injured witness or the other material witnesses, is called upon to consider the witnesses, like, P.Ws.6 and 8, then it has to be more circumspect and cautious in relying upon the evidence of such witnesses. 12. We were taken through the evidence of these two witnesses by the learned counsel appearing for the appellants and we find some material fact appearing in their evidence which require our consideration. We hold them totally unreliable. 12. We were taken through the evidence of these two witnesses by the learned counsel appearing for the appellants and we find some material fact appearing in their evidence which require our consideration. We hold them totally unreliable. P.W.6 Dhaneshwar Sahni had fully supported the prosecution case as an eye witness and had given the blow by blow detail of the occurrence. However, what appears from the cross-examination in paragraph-3 of P.W.6 is that he was made an accused in a case of dacoity in Sessions Trial No.113 of 1978 and some of the accused, like, Patiram Mahto, Naga Mahto and Ram Ayodhya Mahto were witnesses against him. Not only that acquitted accused Naga Mahto had filed a separate case against him and he had been convicted during trial. The witness appears feigning ignorance as to whether accused Patiram Mahto and appellant Lochan Mahto had deposed against him in that case in which he had been convicted, but he has not categorically rejecting the suggestion, thus, leaving a probability that appellant Lochan Mahto and accused Patiram Mahto might have deposed against him on the basis of which evidence, he was convicted. This is one aspect of the evidence of P.W.6. 13. The other aspect of the evidence of P.W.6, as pointed out to us which appears not less important than what we have just recorded, was that whatever was stated by P.W.6 in his examination-in-chief was challenged as an improvement by the defence as a result of which the attention of the witness was drawn to this statements with serious suggestion to him that he had not stated the facts which had been stated by him in his examination-in-chief as regards the manner of occurrence and participation of the accused persons. It is true that P.W.6 had dismissed the suggestion of the defence, but the non-examination of the investigating officer has compounded the situation because the defence appears prejudiced by not being able to prove both contradictions by cross-examining the investigating officer. We are of the view that the investigating officer was purposely withheld so as to creating a handicap for the defence in not proving the attention of P.W.6 and thus, showing to the court that he was not a trustworthy witness. 14. So far as the evidence of P.W.8 is concerned, we find that he also sails in the same boat as does by P.W.6. 14. So far as the evidence of P.W.8 is concerned, we find that he also sails in the same boat as does by P.W.6. He was also enimically disposed towards the accused persons as appears from paragraph-3 of deposition of P.W.8 and further, that his attention was also drawn towards the statement made in examination-in-chief suggesting to him that he had not made those statements to the police. That apart, what appears further to us is that he was admittedly sitting at his Darwaja and saw the occurrence from there which fact runs contrary to the evidence of P.W.6 who stated that he had arrived at the scene of occurrence with P.W. 8. We find ourselves in a situation of doubt as to who should be believed; whether P.W.6 or P.w.8 as regards the manner of their appearance at the scene of occurrence. 15. These are some of the factual reasons which have convinced us that neither P.W.6 nor P.W.8 could be said to be the witnesses wholly reliable and it was at all not safe in the background of serious infirmity between the accused and two witnesses, i.e., P.W.6 and P.W.8 to place implicit faith in them. 16. It is true that the deceased Punkal Mahto was murdered but in absence of proof of the charges, we cannot uphold the conviction of the four appellants. In our considered view, the evidence was quite shaky coming from seriously inimical witnesses rendering it unsafe to base conviction upon those appellants. 17. In the result, the appeal succeeds and the same is allowed. The four appellants are acquitted of the charges they have been found guilty of by setting aside the judgment of conviction and order of sentence. The appellants are on bail. They shall stand discharged from the liabilities of their bail bonds.