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2023 DIGILAW 248 (JHR)

Mahabir Mahto v. State of Bihar (now Jharkhand)

2023-02-27

RONGON MUKHOPADHYAY, S.K.MISHRA

body2023
ORDER : Heard Mr. P.S. Dayal, learned counsel for the appellants and Mr. Pankaj Kumar, learned P.P. for the respondent-State. None appears on behalf of the respondent no. 2. 2. This appeal is directed against the judgment of conviction and order of sentence dated 31.03.1995 passed by Shri Shyam Deo Singh, learned 5th Additional Sessions Judge, Dhanbad in Sessions Trial No. 94 of 1988, whereby and whereunder the appellants have been convicted for the offences punishable u/s 302/34 and 201 of the IPC and have been sentenced to undergo imprisonment for life for the offence punishable u/s 302/34 of the IPC and R.I. for three years for the offence punishable u/s 201 of the IPC. Both the sentences were directed to run concurrently. 3. The fardbeyan of Arun Kumar Mahto was recorded on 27.11.1985 at 12:00 P.M. wherein it has been stated that on 23.11.1985 at around 8:30 P.M. his co-villagers Ramvijay Mahto (appellant no. 3) and Subal Mahto @ Megha Mahto (appellant no. 2) had come to his house and invited his brother Pran Kisto Mahto for catching fish. His brother at this offer went away with Ramvijay Mahto and Subal Mahto. When, even in the morning of the next day Pran Kisto Mahto did not return a search was conducted and in course of search the elder brother and the mother of the informant went to Ramvijay Mahto and Subal Mahto to ask the whereabouts of Pran Kisto Mahto but both of them denied that they had gone to catch fish and Pran Kisto had accompanied them. The brother of Subal Mahto namely, Mahabir Mahto (appellant no. 1) was present at the said place who rebuked them and asked them to contact an exorcist to trace out Pran Kisto Mahto. The demeanor of the accused persons evoked suspicion in the minds of the informant and his family members and they started making a search in the Jungle adjoining their village. It has been alleged that today i.e. on 27.11.1985 in course of search at about 7:00 A.M. the dead body of Pran Kisto Mahto was detected amidst a pile of coal dust. The murder appeared to have been committed by means of strangulation. It has been alleged that there was a friction between Mahabir Mahto and the deceased on account of the conduct of the sister of Mahabir Mahto who was a characterless lady. The murder appeared to have been committed by means of strangulation. It has been alleged that there was a friction between Mahabir Mahto and the deceased on account of the conduct of the sister of Mahabir Mahto who was a characterless lady. Based on the aforesaid allegations Baliapur P.S. Case No. 132/1985 was instituted for the offences punishable u/s 302/201/34 of the IPC. After completion of investigation charge-sheet was submitted against all the three accused persons pursuant to which cognizance was taken and the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 94 of 1988. Charge was framed against the accused persons for the offences punishable u/s 302 and 201 of the IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as nine witnesses in support of its case. 5. P.W.1 (Sohan Mahto) has stated that the incident is of five years back at about 8:00 P.M. and he was in his house when Ramvijay and Subal had come and had taken away his son Pran Kisto with them for catching fish. His son did not return at night and in the morning he had asked Ramvijay and Subal about the whereabouts of his son who had stated that Pran Kisto had returned back to his house in the night itself. The dead body of his son on search was found buried and the same was concealed under the pile of coal dust. In cross-examination, he has deposed that he had seen Ramvijay and Subal in the courtyard and there were no articles in their hands. He does not know about any quarrel involving Pran Kisto Mahto prior to the occurrence. 6. P.W.2 (Gangia Mahatain) is the mother of the deceased Pran Kisto Mahto who has stated that on the date of occurrence Ramvijay and Subal had come to take away Pran Kisto Mahto to catch fish which was objected by her since darkness had already fallen. However, on the assurance that Pran Kisto will returned back shortly to his house they had taken him away but when he did not return a search was conducted and after three days his dead body was recovered from underneath a pile of coal dust. However, on the assurance that Pran Kisto will returned back shortly to his house they had taken him away but when he did not return a search was conducted and after three days his dead body was recovered from underneath a pile of coal dust. In her cross-examination, she has deposed that when Subal and Ramvijay had come her sons Arun and Tarun were not at home. Since it was night no search was made for Pran Kisto. She has stated that her son Pran Kisto never had a fight with his co-villagers. 7. P.W.3 (Mangal Karmkar) did not support the case of the prosecution and was declared hostile by the prosecution. 8. P.W.4 (Bharat Mahto) has stated that on 23.11.1985 at about 8:00 P.M. he was going to Baliapur to attend a Jhumar Dance programme when he had seen in the door of the house of Pran Kisto, Ramvijay, Subal and Pran Kisto sitting. When he returned at 7:00-8:00 A.M. Pran Kisto was not at home and the mother of Pran Kisto had disclosed that Pran Kisto had accompanied Ramvijay and Subal to catch fish. He has stated that a search was made for Pran Kisto and on 27.11.1985 his body was recovered from Chhai line. In cross-examination, he has deposed that on 27.11.1985 at 7:00 A.M. he had come to know about the recovery of the dead body of Pran Kisto Mahto. 9. P.W.5 (Khedan Mahto) has been tendered by the prosecution. 10. P.W.6 (Tarun Mahto) is one of the brothers of Pran Kisto Mahto who has deposed that on 23.11.1985 at about 8:00-8:30 P.M. he was returning home from his duty and near Necha Kulhi he met Ramvijay, Subal, Mahabir and his brother Pran Kisto. On being asked Pran Kisto had disclosed that they were on the way for catching fish. When this witness expressed his reservation Pran Kisto had replied that if he did not accompany the accused persons it would create annoyance to them. This witness had thereafter returned home. He has stated that his brother Pran Kisto did not return at night and in the morning his mother on returning from the house of Ramvijay and Subal had disclosed that they had advised her to consult an exorcist for searching out her missing son. After some days the dead body of his brother was recovered from besides a pile of coal dust. After some days the dead body of his brother was recovered from besides a pile of coal dust. He had come to know that Pran Kisto had an affair with the sister of Ramvijay. He has stated that Pran Kisto used to take tuition in the house of Ramvijay, Subal and Mahabir but later on he had stopped taking tuition. In cross-examination, he has deposed that he works in a crusher machine. He did not have any suspicion on seeing his brother accompanying the accused persons. He has stated that Subal and Ramvijay had a fishing net while Pran Kisto and Mahabir did not have anything in their hands. 11. P.W.7 (Arun Kumar Mahto) is the informant and brother of the deceased. He has stated that on 23.11.1985 at about 8:00 P.M. he was preparing to go to Baghmara basti at which point of time Mahabir Mahto, Subal Mahto and Ramvijay had come to his house and started calling Pran Kisto Mahto. On being asked they disclosed about their plans of fishing. His brother Pran Kisto left with these persons though this witness and his mother had asked him not to go with them. His brother did not return in the night and in the morning his brother and mother had gone to the house of the accused to trace out Pran Kisto Mahto. However, they were retributated and chased away. On 27.11.1985, he had gone towards Chhai line where he found the dead body of his brother covered in a heap of coal dust. He has stated that about two years prior to the incident a dispute has arisen on account of a love affair between Pran Kisto and the sister of Mahabir which was later on settled. In cross-examination, he has deposed that on 23.11.1985 he was in his house the whole day. He had gone to Baghmara basti to watch a programme. He had come back home at 8:00 A.M. the next day. When he had discovered the dead body he was all alone and thereafter he had informed the others. He has stated that when the accused persons had come to his house on 23.11.1985 he had not seen anything in their hands. 12. P.W.8 (Dr. He had come back home at 8:00 A.M. the next day. When he had discovered the dead body he was all alone and thereafter he had informed the others. He has stated that when the accused persons had come to his house on 23.11.1985 he had not seen anything in their hands. 12. P.W.8 (Dr. Rai Sudhir Prasad) has deposed that on 28.11.1985 he had conducted autopsy on the dead body of Pran Kisto Mahto and had found the following: “The dead body was in a decomposed state with mark blackening. Tutical of skin was peeled off. Scalp hair and insider teeth loosen, tongue was protruding. On dissection, he had found blood cot in 3” x 4” x 1/2” was seen on left side of front neck in the middle and just beside the trachea. The internal surface of trachea was just adjacent to this blood cot. It had also blood cot measuring an area 1/2” x 1/4” hyoid was intact.” The cause of death was opined to be on account of throttling. The time elapsed since death was 4-5 days before the postmortem examination. He has proved the postmortem report which has been marked as Exhibit-3. 13. P.W.9 (Jagdish Prasad Singh) was posted at Baliapur Police Station and on 27.11.1985 after making a station diary entry he along with the Police force had left for village Parashbaniya. After reaching the village at 11:00 A.M. he went with Arun Kumar Mahto to Chhai line where he recorded the fardbeyan of Arun Kumar Mahto. He has proved the fardbeyan which has been marked as Exhibit-4. There was a dead body in the pile of coal dust which was identified by Arun Kumar Mahto as that of his brother. He had prepared the inquest report which has been marked as Exhibit-5. He had thereafter sent the body for postmortem. He had recorded the restatement of the informant and had also recorded the statement of the witnesses. He did not find any blood at the place of occurrence. In the south side of Parashbaniya village there is a heap of coal dust which is called Chhai line or Chhai Gada. In the Chhai line there is a tunnel in which the dead body was concealed. After completion of investigation, he had handed over charge to S.K. Sarkar who had subsequently submitted charge-sheet. In the south side of Parashbaniya village there is a heap of coal dust which is called Chhai line or Chhai Gada. In the Chhai line there is a tunnel in which the dead body was concealed. After completion of investigation, he had handed over charge to S.K. Sarkar who had subsequently submitted charge-sheet. In cross-examination, he has deposed that witness Sohan Mahto had never stated before him that on the next day he had asked Subal and Ramvijay about the whereabouts of the missing person; rather his wife had gone who came back and stated that nothing was disclosed by them. The witness Bharat Mahto had never stated before him that on 23.11.1985 he had seen Subal, Ramvijay and Pran Kisto sitting near the door. He had also not stated about inquiring from Subal and Ramvijay about Pran Kisto. The witness Tarun Mahto had never stated that Pran Kisto had disclosed that the accused persons would be annoyed if he doesn't accompany them. The informant Arun Kumar Mahto had never stated before him that he had tried to prevent his brother from going fishing. 14. The statements of the accused were recorded u/s 313 Cr.P.C., in which, they have merely denied their participation in the murder. 15. Mr. P.S. Dayal, learned counsel for the appellants has submitted that the appellants have been implicated merely on the basis of suspicion. It has been submitted that there are vital contradictions in the evidence of the witnesses. He has further submitted that the appellants being last seen with the deceased have caused their conviction though the learned trial court has not considered the proximity of the recovery of the dead body from the time he was last seen with the appellants. 16. Mr. Pankaj Kumar, learned P.P. has on the other hand brought to the notice of the Court the evidence of P.W.1, P.W.2, P.W.4, P.W.6 and P.W.7 who according to him have consistently stated about the involvement of the appellants in taking away the deceased from his house after which he become traceless and after three days his dead body was recovered. Mr. Pankaj Kumar has also stated that the circumstantial evidence against the appellants is further cemented on account of the motive attributed to the appellants who had objected to the love affair existing between the deceased and the sister of Mahabir Mahto. 17. Mr. Pankaj Kumar has also stated that the circumstantial evidence against the appellants is further cemented on account of the motive attributed to the appellants who had objected to the love affair existing between the deceased and the sister of Mahabir Mahto. 17. We have given our anxious consideration to the submissions advanced by the learned counsel for the respective parties and have also perused the Lower Court Records. 18. The gist of the allegations reveal that on 23.11.1985 at 8:00 P.M. the appellant nos. 2 and 3 had come to the house of the informant and had taken away his brother Pran Kisto Mahto for catching fish. The brother of the informant did not return in the night which led to a frantic search including a visit to the house of the appellants where the appellant no. 1 had rebuked the elder brother and the mother of the informant. Finally on 27.11.1985 the dead body of Pran Kisto Mahto was recovered from a pile of coal dust where it was concealed. The cause of death of Pran Kisto Mahto was opined to be due to throttling. Admittedly, there are no eyewitnesses to the occurrence and the appellants have been convicted only on account of the deceased having been last seen with them. 19. Before proceeding further, we may profitably quote from the case of “Satpal versus State of Haryana” reported in (2018) 6 SCC 610 , wherein the circumstances which would prove the guilt of an accused in a case of last seen have been explained and which reads as follows: “6. We have considered the respective submissions and the evidence on record. There is no eyewitness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.” 20. In the present case there are no other circumstances or corroborative evidence brought by the prosecution to strengthen its case against the appellants. The deceased had accompanied the appellants on 23.11.1985 at 8:00 P.M. and his dead body was recovered in the morning of 27.11.1985. P.W.7 has stated that he had not seen anything in the hands of the accused persons while P.W.6 has stated about the presence of fishing net with the appellant nos. 2 and 3. There does not appear to be any enmity between the deceased and the appellants though a feeble attempt has been made by the learned P.P. to the extent that there was a love affair between the deceased and the sister of the appellant no. 1 which was the cause of the incident but the same seems to have been contradicted by P.W.7 who has stated about such matter having been resolved two years back. The intensity of the motive as raised by the prosecution, therefore, stands extinguished by virtue of such evidence. 1 which was the cause of the incident but the same seems to have been contradicted by P.W.7 who has stated about such matter having been resolved two years back. The intensity of the motive as raised by the prosecution, therefore, stands extinguished by virtue of such evidence. As noted above there was no close proximity with the deceased being last seen with the appellants and the recovery of the dead body and thus the onus to explain the circumstances does not delve upon the appellants. As has been held in the case of “Satpal versus State of Haryana” (supra) the last seen theory unless propped up by other corroborative evidence becomes a weak piece of evidence upon which the conviction of an accused cannot be based. These issues have not been appropriately dealt with by the learned trial court and as a consequence thereof, we hereby set aside the judgment of conviction and order of sentence dated 31.03.1995 passed in Sessions Trial No. 94 of 1988 by Shri Shyam Deo Singh, learned 5th Additional Sessions Judge, Dhanbad. 21. This appeal stands allowed. 22. Since the appellants are on bail they are discharged from the liability of their bail bonds.