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2017 DIGILAW 1667 (JHR)

Badri Mahto v. State Of Bihar

2017-09-14

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT Ananda Sen, J. - This appeal is directed against the Judgment of conviction and Order of sentence dated 02.03.1993, passed by the 4th Additional Sessions Judge, Giridih in Sessions Trial No. 424 of 1989, by which both these appellants have been convicted for committing the offence punishable under Section 302/34 and 435/34 offence under Section 302/34 of the Indian Penal Code and R.I. for 3 years for the offence under Section 435/34 of the Indian Penal Code. However, both the sentences were directed to run concurrently. 2. The prosecution case is based on the fardbeyan of one Baldeo Mahto, wherein he stated that he, along with his uncle Mohar Mahto and nephew Mahesh Mahto, was sleeping in the haystack in the Barn (Khalihan). At midnight, when he felt heat of fire, he came out of the stack and saw Sarju Mahto and Nepal Mahto, both sons of Badri Mahto and Badri Mahto, S/o Prabhu Mahto. Badri Mahto was seen on the other side lighting fire in the haystack with match, whereas Sarju Mahto and Nepal Mahto were standing with Lathi. When the informant confronted them, Sarju Mahto chased the informant with Lathi. The informant ran away towards his house due to fear and raised alarm and scream in the village and also informed about the incident to his father and other family members. When they returned near the Barn, they saw that the straw was completely burnt. They tried to save his uncle and nephew but in absence of water the fire could not be doused. Lateron the villagers, with the help of stick and bamboo, got the dead bodies of his uncle and nephew out of the haystack, but by that time they were fully burnt and were dead. He stated that there was long standing land dispute between Badri Mahto and his family. On last Thursday there was verbal altercation between Badri Mahto and Sarju Mahto with the brother of the informant Arjun Mahto and Tukan Mahto when both these appellants had threatened his brother of dire consequence. 3. On basis of the aforementioned statement of the informant, Dhanwar P.S. Case No. 29 of 1989, corresponding to G.R. No. 443 of 1989, was instituted for offence under Sections 302/34 and 435/34 of the Indian Penal Code, against the accused persons and investigation was taken up. 4. 3. On basis of the aforementioned statement of the informant, Dhanwar P.S. Case No. 29 of 1989, corresponding to G.R. No. 443 of 1989, was instituted for offence under Sections 302/34 and 435/34 of the Indian Penal Code, against the accused persons and investigation was taken up. 4. After completion of investigation, charge sheet was filed under Sections 302/34 and 435/34 of the Indian Penal Code, finding the case to be true and the cognizance was taken. After complying all the provisions, the case was committed to the Court of Session for trial as the offence was exclusively triable by the Court of Session. 5. Charges were framed against these two appellants on 25.02.1989 under Sections 302/34 and 435/34 of the Indian Penal code. One of the accused namely Nepal Mahto was declared juvenile, as such his case was separated. These two appellants were put on trial as they pleaded not guilty. 6. The prosecution, in order to prove its case, examined altogether thirteen prosecution witnesses and also exhibited several documents. 7. After closure of the evidence of the prosecution, statements of the accused persons/appellants were recorded under section 313 of the Code of Criminal Procedure, 1973. The appellants did not produce any witness in defence as their case is of complete denial. 8. The trial court, after hearing the parties and after going through the records of the case, convicted and sentenced the appellants as aforesaid. 9. Aggrieved by the said Judgment of conviction and Order of sentence awarded to the appellants, the appellants have preferred this instant appeal. 10. We have heard learned counsel appearing for the appellants and learned Addl. Public Prosecutor appearing for the State. Learned counsel appearing for the appellants submits that these appellants have falsely been implicated in this case because of the long standing land dispute, which is admitted by the informant and other witnesses. It is submitted that the evidence of the informant and the other witnesses are not consistent and there are major contradictions, which goes to the root of this case. He further submits that the informant has stated in the F.I.R. that when he felt the heat of fire in the haystack, he came out of the stack, whereas in his evidence before the Court he has deposed in different manner. He further submits that the informant has stated in the F.I.R. that when he felt the heat of fire in the haystack, he came out of the stack, whereas in his evidence before the Court he has deposed in different manner. He further submits that the evidence of other witnesses do not corroborate with the deposition of the informant, which creates serious doubt about the presence of the informant at the place of occurrence. He submits that the conduct of the informant is also strange as the informant stated that on feeling the heat of fire he came out of the Stack and saw that the appellants are putting fire in the haystack and thereafter, he fled. He further submits that it would have been the natural conduct of the informant to wake up the other two persons, who were allegedly sleeping along with him, but he did not do so, which creates a doubt about the presence of the informant at the place of occurrence. He further submits that the parties are agnates and admittedly there is a land dispute so there is high probability that because of the said land dispute, these appellants have been falsely implicated in this case. Learned counsel for the appellants, lastly submitted that it is a fit case where the appellants should have been given the benefit of doubt. 11. On the other hand, learned APP opposing the argument advanced on behalf of the appellants, submits that the evidence of the witnesses are cogent and consistent. He further submits that the informant is the eyewitness, who had seen the entire occurrence and informed the other witnesses. He further submits that both the parties are related to each other and there was dispute, which gives a motive to these appellants for committing the offence. It is further submitted that the deceased were brutally murdered and the prosecution has been able to prove its case beyond all reasonable doubts. He submitted that the conviction of the appellants is absolutely justified and their appeal is liable to be dismissed. 12. We have heard the counsel for the parties and have gone through the records of this case. As mentioned earlier, altogether 13 witnesses were examined in this case. P.Ws.4 & 9 namely, Kauleshwar Mahto and Prayag Mahto are tender witnesses. Save and except the informant, all the witnesses are hearsay and post occurrence witnesses. 12. We have heard the counsel for the parties and have gone through the records of this case. As mentioned earlier, altogether 13 witnesses were examined in this case. P.Ws.4 & 9 namely, Kauleshwar Mahto and Prayag Mahto are tender witnesses. Save and except the informant, all the witnesses are hearsay and post occurrence witnesses. It is the informant alone, who is alleged to have seen and witnessed the entire occurrence. Thus, as per the prosecution, he is the only eyewitness. We will discuss the statement of this witness at a later stage. 13. P.W.1 is Tejo Ram, who has stated that on the day of occurrence he was sleeping in his house and he woke up on hearing scream of the informant Baldeo Mahto and went to the Barn of Mohar Mahto. He saw the haystack on fire. He stated that he had taken out the burnt bodies of the deceased Mohar Mahto and Mahesh Mahto from the haystack. He stated that he had put his signature on the inquest report of the deceased Mohar Mahto when the police seized the dead body, which was marked as Ext.1. He has also identified the signature of Nunuman Mahto on the inquest report, which was marked as Ext.1/1. He also identified his signature as well as the signature of Nunuman Mahto on the inquest report of Mahesh Mahto, which were marked as Ext.1/2 and 1/3 respectively. He stated that the police seized a Spade, an Iron Pan (Kadahi), burnt logs and burnt bed rolls. His signature on the seizure list was marked as Ext.1/4 and signature of Nunuman Mahto was marked as Ext.1/5. In his cross-examination, he stated that the informant did not shout that someone has put fire in the Barn. He further stated that when they went to the house of Tukan, no one had told him that who had put the fire. He further stated that the occurrence occurred during winter season when people use to make arrangement of fire to keep themselves warm. He stated that when he informed Tukan about the occurrence then Tukan informed him that these appellants have committed the crime. 14. P.W.2. Is Nunuman Mahto, He stated that on the day of occurrence he was also sleeping in his house when he heard hue and cry. He stated that when he informed Tukan about the occurrence then Tukan informed him that these appellants have committed the crime. 14. P.W.2. Is Nunuman Mahto, He stated that on the day of occurrence he was also sleeping in his house when he heard hue and cry. On hearing noise, he came out of his house and went to the Barn of Mohar Mahto where he saw the haystack was on fire and the crowd assembled there. People brought out the bodies of Mohar Mahto and Mahesh Mahto. Police came and prepared the inquest report and seized the materials. He identified his signatures on the inquest report, which was already marked as exhibit. In cross-examination, he stated that he has not seen anyone putting fire in the haystack nor anyone informed him as to who has put fire. 15. P.W.3 is Amir Mahto, who has been declared hostile after he deposed that no one had informed him as to who had put the fire. 16. P.W.5 is Ganesh Mahto, who stated that he was sleeping in his house when Nunuman and Tejo Ram came and woke him up and informed him that two of his family members have been burnt in the Barn. He stated that he went to the Barn of Mohar Mahto where he saw the burnt dead bodies of Mohar Mahto and Mahesh Mahto. He stated that Balo Mahto informed him that Badri Mahto, Sarju Mahto and Nepal Mahto had put fire in the haystack and fled away. He stated that Balo Mahto is also known as Baldeo Mahto (informant). He further stated that the accused and the deceased are agnates. He identified the appellants in Court. He further stated that he, the informant parties and the accused were joint in properties but the partition had taken place between them and they are separate now. He further stated that the accused had filed a criminal case under Section 307 I.P.C against this witness and others, which is still pending. He also stated that a counter case was also filed by his father. He stated that there was partition between Mohar and his brothers also. 17. P.W.6 is Horil Mahto. He stated that in the Barn his brother Mohar Mahto, his grandson Mahesh Mahto and his son Baldeo Mahto were sleeping. He also stated that a counter case was also filed by his father. He stated that there was partition between Mohar and his brothers also. 17. P.W.6 is Horil Mahto. He stated that in the Barn his brother Mohar Mahto, his grandson Mahesh Mahto and his son Baldeo Mahto were sleeping. He stated that he woke up by scream of Baldeo, who informed him that the accused Badri Mahto, Sarju Mahto and Nepal Mahto had put fire in the Barn. He stated that Badri Mahto put the fire whereas Sarju Mahto and Nepal Mahto chased the informant with Lathi. On hearing such information, this witness reached at the Barn and saw the fire. They tried to douse the fire but in vein. The villagers brought out the dead bodies of Mohar and Mahesh, which were fully burnt. He stated that two days prior to the said occurrence, the accused had threatened his son Arjun of dire consequence. He gave the genealogy of his family. He stated that the Barn, belongs to him. He stated that there was straw/haystack in the Barn. He stated that the fire was caught from the western side. He denies the suggestion that Mahesh, Mohar and Baldeo were sleeping in Barn with charkol fire (Borsi) to keep them warm as a result of which the straw caught fire. 18. P.W.7 is Tukan Mahto, who stated that he went out of his house to ease himself and when he saw Badri Mahto, Sarju Mahto and Nepal Mahto coming from southern side and entered their house. He stated that after 1020 minutes Tejo Ram and Mani Mahto came and told him that these appellants have put fire in the Barn of his brother. He reached at the place of occurrence and saw the dead bodies of two deceased and he also saw the fire was blazing in the haystack. He stated that he met the informant Baldeo, who informed him that these appellants had put fire and burnt the haystack. He stated that when he received the information of fire, he reached the Barn and he took two minutes to reach there. He stated that the dead bodies of Mohar and Mahesh were taken out from the haystack. He stated that two days prior to the occurrence, the appellants had threatened Arjun in the house of this witness of dire consequence. He stated that the dead bodies of Mohar and Mahesh were taken out from the haystack. He stated that two days prior to the occurrence, the appellants had threatened Arjun in the house of this witness of dire consequence. He stated that he has never informed the police about the said threat. He denied the fact that he has falsely implicated these appellants. 19. P.W.8 is Arjun Mahto. He stated that the informant Baldeo came shouting and screaming to his house and told him that these appellants have put fire in the Barn. He stated that Baldeo also informed that when he felt the heat of the fire, he came out of the haystack and then Nepal Mahto and Sarju Mahto chased him with Lathi as a result of which he fled. He stated that he could not wake up Mohar Mahto and Mahesh Mahto. He stated that he went to the place of occurrence and tried to douse the fire but he failed. He stated that earlier there was a land dispute between the accused and the family of this witness. He stated that Sarju Mahto had threatened him and his uncle Tukan of dire consequences. He stated that on the day of occurrence the entire harvest was kept in the Barn. He gave the description of the Barn and reiterated that it is Baldeo who had informed him about the occurrence. 20. P.W.10 is the Doctor, who conducted the post mortem examination of the dead bodies of the deceased. He found the following injuries on the dead body of the deceased Mahesh Mahto:" "Extensive burn injuries was present all over body, blackening of skin was present. The hair and the eyebrows were burnt completely. Eyes were burnt and limbs were flexed and arms fixed. Bones were exposed at places. The body assumed pugilistic attitude. The skull bone were burst open and a portion of brain substance was out of opening. The abdomen was burst open and portion of gut was out of opening." On dissection-trachea was congested containing carbon particles, brain and meninges were congested, lungs congested, Heart contained blood right side, Stomach contained undigested food stuff, Liver, Spleen and Kidney congested. Urinary bladder empty. As per the opinion of the Doctor the death was caused due to shock because of the extensive burn injury. Urinary bladder empty. As per the opinion of the Doctor the death was caused due to shock because of the extensive burn injury. He also found the following injuries on the dead body of the deceased Mohar Mahto: "Extensive burn injury involving all over body associated with blackish skin. Hairs and eyes balls were burnt completely. Bones were exposed on left knee and left leg. Body assumed pugilistic attitude to some extent. On dissection Trachea was found congested containing carbon particles. Lungs congested. Heart contained blood both sides. Liver, Kidney and Spleen congested. Urinary bladder empty. As per the opinion of the Doctor, the death was caused due to shock because of extensive burn injury. Both the post mortem reports were marked as Ext.2 and 2/1. 21. P.W.12 is Tulsi Mahto, who stated that he was present in his house when he was informed that Badri Mahto has put fire in the Barn. He went there and saw the dead bodies of the deceased. He stated that the accused persons had filed a case under Section 307 I.P.C., but he was not an accused in the said case. 22. P.W.13 is Bagish Chandra Tripathy, who is the Investigating Officer in this case. He stated that the FIR was registered, which was marked as Ext.3. He investigated the place of occurrence and prepared the inquest report and prepared the seizure list, which was marked as Exts.4 and 4/1. He stated that the Barn is on the land of the informant. He found burnt ashes of haystack. He found Spade, Bullock Cart and Iron Pan, which were also burnt and he seized all these articles. The seizure list was prepared which was marked as Ext.5. He found bed rolls at the place of occurrence. He recorded the statement of the witnesses. He stated that Amir Mahto told him that the informant had informed him about the involvement of these appellants. 23. P.W.11 is Baldeo Mahto is the informant as well as the sole alleged eyewitness to the occurrence. He deposed that he was sleeping along with the deceased inside the straw/haystack in the Barn. He heard some noise and woke up and came out of the haystack and saw the accused Badri Mahto on the Western side, was putting fire in the haystack. The accused Nepal Mahto was standing with the Lathi. He deposed that he was sleeping along with the deceased inside the straw/haystack in the Barn. He heard some noise and woke up and came out of the haystack and saw the accused Badri Mahto on the Western side, was putting fire in the haystack. The accused Nepal Mahto was standing with the Lathi. He forbade the accused to put fire when Sarju Mahto chased him with Lathi. Then he fled and woke Arjun, Tulsi, Tukan and Ganesh and narrated them about the incident. He stated that there was long standing dispute between them and the accused. He stated that the accused persons had given threatening to Tukan Mahto and Arjun Mahto on last Thursday. He stated that when the police came to the place of occurrence, he narrated the story. He stated that at the time of occurrence there was no paddy in the said Barn. He stated that there was only straw there. In cross-examination, he stated that the fire was put on the Western side. The fire spread from Western side to Eastern side of the Barn and entered inside the Barn from the Western side. He stated that on feeling the heat of the fire he woke up. He stated that there were bed rolls inside, but he could not see whether they caught fire or not. He stated that he did not wake up Mahesh and Mohar when he felt the heat of fire. He also stated that he even did not try to wake them up. He stated that when he came out of the Stack he saw the accused persons just started putting the fire. He stated that from the place of occurrence he rushed to his house silently. He stated that he never screamed nor raised any voice. 24. From analyzing the evidence, which has been led by the prosecution, we find that there is only one alleged eyewitness to the occurrence. All the other witnesses have consistently stated that it is this eyewitness P.W.11, who informed them about the involvement of these appellants in the occurrence. From analyzing the evidence of the informant P.W.11, we find that there is much element of doubt about his presence at the place of occurrence. This witness in the FIR states that he was sleeping in the straw inside the Barn along with the deceased persons when he felt the heat of fire. From analyzing the evidence of the informant P.W.11, we find that there is much element of doubt about his presence at the place of occurrence. This witness in the FIR states that he was sleeping in the straw inside the Barn along with the deceased persons when he felt the heat of fire. He, thereafter, came out of the Stack. This statement in the FIR is contrary to what he stated in the examination-in-chief. In the examination-in-chief this witness has stated that on hearing some noise, he came out of the Barn and saw the appellant Badri Mahto putting fire in the haystack. Thus, if Badri Mahto was just putting the fire in the haystack, then his statement that he woke up on feeling the heat of the fire, is not correct. In his cross-examination, he has stated that the fire had already spread from Western side to the Eastern side when he came out of the Barn. Contradicting this, he also stated that when he came out, he saw that Badri Mahto had just started to put fire. These two statements cannot go side by side. If Badri Mahto had just started lighting fire then it is not possible that the fire had already spread from Western side to the Eastern side of the Stack. Another glaring aspect in his statement is that he stated that he woke up after feeling the heat of the fire, but surprisingly he never woke up the other two persons, who were allegedly sleeping with him. In fact, he stated that he did not even try to wake them up. This is absolutely against the natural conduct of a human being that too who happened to be a very close relative of the deceased. It is unexpected that a person who will wake up feeling the heat of fire will not even try to wake up the other two persons, who were sleeping with him. This casts a serious doubt about the conduct of this informant. Further, this witness has stated that when he was chased by the appellants he fled from the place of occurrence silently without raising any scream and he informed his family members. The other witnesses have stated that they woke up on the scream raised by this informant. This casts a serious doubt about the conduct of this informant. Further, this witness has stated that when he was chased by the appellants he fled from the place of occurrence silently without raising any scream and he informed his family members. The other witnesses have stated that they woke up on the scream raised by this informant. When this informant himself says that he fled silently without screaming, then the statement of other witnesses that this informant was screaming, cannot be believed. Further, this informant, who was allegedly sleeping in the Barn, stated that there was no paddy inside the Barn. This statement is absolutely contradictory to the statement given by P.W.8 Arjun Mahto, who, in his evidence, has stated that the entire harvest was kept in the Barn one day before the occurrence. Another aspect is that this witness has stated that the police came at the place of occurrence where he narrated the story but surprisingly if we peruse the fardbeyan, we find that the statement was recorded in the police station, which is the basis of the FIR. Thus, while analyzing the statement of this witness, we find that there is serious contradictions in the statement of this witness. These discrepancies go to the root of the case and demolishes the credibility of this witness. The credibility of this witness is thus under dark cloud. From the statement of this witness there is a genuine doubt as to whether this witness was actually present in the place of occurrence or not. 25. It is the duty of the prosecution to prove a particular case beyond all reasonable shadow of doubt. The defence has to only cast a doubt upon the prosecution version and doubt on the credibility on a particular witness. Under the law the accused is not to prove his innocence, rather has to cast a doubt only. In this case, we find that the defence has been able to cast doubt about the credence of this P.W.11 as the eyewitness. After analyzing the evidence we seriously doubt whether P.W.11 was present at the place of occurrence or not. The entire case revolves around the statement of P.W.11 as he is the person who alleged to have seen the occurrence and has narrated the same to everyone. Admittedly, all the other witnesses are hearsay and post occurrence witnesses. After analyzing the evidence we seriously doubt whether P.W.11 was present at the place of occurrence or not. The entire case revolves around the statement of P.W.11 as he is the person who alleged to have seen the occurrence and has narrated the same to everyone. Admittedly, all the other witnesses are hearsay and post occurrence witnesses. Since the credence of this witness, i.e. P.W.11 has been shaken and demolished by the defence, it is not necessary to travel any further. Thus, we find the testimony of P.W.11 is not reliable. It is admitted case that there is serious land dispute between the parties and thus there is every chance of false implication of these appellants. There is no other evidence to implicate these appellants in this case and thus they are entitled to get benefit of doubt in this case. 26. In view of the aforesaid discussions, the impugned Judgment of conviction and Order of sentence dated 02.03.1989, passed by the learned 4th Additional Sessions Judge, Giridih, in Sessions Trial No. 424 of 1989, is hereby, set aside. Both the appellants are given the benefits of doubt, and they are acquitted of the charges. Both the appellants, who are on bail, are discharged from the liabilities of their bail bonds. 27. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. H.C. Mishra, J. - I agree.