Patna High Court
Mukhlal Mahto And Anr. vs State Of Bihar on 9 September, 1996
Equivalent citations: 1997(1)BLJR638
Author: Prasanta Kumar Sarkar
Bench: Aftab Alam, Prasanta Kumar Sarkar
JUDGMENT Prasanta Kumar Sarkar, J.
1. This appeal is directed against the judgment and order of 3rd Additional Sessions Judge, Hazaribagh, in S.T. No. 395 of 1990.
2. Originally the appellants alongwith one Laxmi Devi were facing trial in this case for the charges under Section 302/34 and 120-B of the Indian Penal Code, out of whom Laxmi Devi was found not guilty of the offence under Sections 302/34 and 120-B of the Indian Penal Code and accordingly, she was acquitted. The two appellants, however, were found guilty for the offence under Sections 302/34 of the Indian Penal Code and accordingly they were sentenced to undergo RI for life under Sections 302/34 of the Indian Penal Code. However, these appellants were also not found guilty of the charges under Section 120-B of the Indian Penal Code.
3. Mathura Mahto son of Sri Bhuneshwa Mahto of village Barkagaon, district Hazaribagh, filed a written report in the Barkagaon police station. In the written report, the informant stated that his brother Murli Mahto was married about one and half years ago at Ramgarh with Laxmi Devi, daughter of Sri Lalo Mahto. Murli Mahto used to live alognwith his wife, Laxmi Devi was having illicit relation with his younger brother Pramod Mahto. This led to quarrel between Murli Mahto (deceased) and Pramod Mahto and for that matter a Panchayat was also held, in which Laxmi Devi had stated in presence of her father and panches that she will live with her Dewar, Pramod Mahto. On 24.2.1990 Pramod Mehto had gone out from the house saying that he had to go to Patna with the vehicle where on the worked as Khalasi. It is further stated that on 26.2.1990 at about 7.30 a.m. the informant knew at the residence of local pramukh, from one Rijhan Mahto that a dead body lying near Bank-hatia filed. The Pramukh Sri Gurudyal Mahto set him alongwith Ashok Lal, son of Mahadev Lal and Bandhu Mahto, son of Sri Khuban Mahto to see the dead body, the informant identified the dead body as that of his brother Murli Mahto @ Gallu Mahto. The informant, found that the neck of the deceased was cut with a sharp weapon. He informed the Pramukh Gurudyal Mahto about the aforesaid fact. The informant asked his wife also to enquire from his Bhawah (wife of his brother). The informant's wife, thereafter, called his Bhawah and when quary was made from his Bhawah Laxmi Devi disclosed that in the preceding night at about 11.00 p.m. accused Mukhalal Mahto, Pramod Mahto and one Birendra Mahto had taken away the deceased Murli Mahto @ Gallu Mahto with them from his house. It is further said that Laxmi Devi, the wife of the deceased, had also illicit relation with accused Mukhlal Mahto and Birendra Mahto. This fact was known to the deceased and for which he had also assaulted his wife. It is further said that in the morning on 26.2.1990 these three accused persons, namely, Pramod, Mukhlal and Birendra were not found at their residence. The informant, therefore, suspected that these three persons with the knowledge of Laxmi Devi, wife of the deceased, had murdered Murli Mahto.
4. On the basis of the fardbeyan, a formal FIR was drawn up and a case under Sections 302/120-B/34 of the Indian Penal Code was registered. The police after completion of the investigation had submitted charge-sheet under the aforesaid sections against Mahto, Pramod Mahto and Laxmi Devi.
5. The learned 3rd Additional Sessions Judge Hazaribagh conducted the trial and acquitted accused Laxmi Devi and convicted and sentenced the other two accused persons, namely, Mukhlal Mahto and Pramod Mahto.
6. The prosecution has examined 9 witnesses in this case; out of out of whom PW 1, Mathura Matho is the informant in this case. He has fully corroborated his written report inasmuch as he was stated that on 26.2.1990 at 8.30 a.m. he went to the Barkagaon police station and informed the police that the dead body of his brother Murli Matho @ Gallu Mahto is lying in the filed at a distance of 1.1/2 km. from police station. He knew this fact from Rijhan Mahto in the house of local Pramukh Gurudyal Mahto. Thereafter, Pramukh Gurudayal Mahto sent him alognwith Ashok Lai and Bandhu Mahto to see the dead body in the field. PW 1 has further stated that when they went to the place where the dead body was lying he found that the dead body was of his brother Murli Mahto. He has further stated that thereafter he went home and told his wife to make quary from his Bhawah Laxmi Devi. On quary, his Bhawah Laxmi Devi told him that at about 11.00 p.m. in the proceeding night Mukhlal Mahto, Pramod Mahto (his younger brother) and one Birendra Mahto came and had taken away the deceased Mahto with them from his house. PW 1 has also stated that Murli Mahto was married with Laxmi Devi daughter of Sri Lalo Mahto about 1-1/2 years ago. PW 1 has proved Ext. 1, i.e. written report submitted by him in the police station. He has also proved Exts. 2 and 2/1, the signature of Krityanand Bishwakarma and Nanhaku Mahto respectively on the aforesaid written report of PW 1. It is, therefore, clear that he is not the eye-witness to the actual occurrence of murder. He simply identified the dead body and filed written report in Barkagaon police station. In his written report (Ex. 1) PW 1 had stated that Laxmi Devi was having illicit, relation with Pramod Mahto and so a Panchayat was held in which Laxmi Devi told that she wants to live with Pramod Mahto, but in his examination-in-chief P/W 1 has stated that Laxmi Devi has no illicit relation with Pramod Mahto. He has also stated that he did hot say before the police that Laxmi Devi has any relation with Pramod Mahto. Thus, in his examination in chief this aspect of the story has been denied by the informant himself-. However, in his cross-examination PW 1 has stated that no panchayat was held on the point of illicit relation between Laxmi Devi and Pramod Mahto. Thus, this aspect of the Panchayat has also been disputed by PW 1 in his cross-examination whereas PW 6, Gurudyal Mahto, Pramukh of Barkagaon has stated that a Panchayat was held in which wife of the deceased said that she will live the brother of the deceased. Thus, the statements of PW 1 and PW 6 are contradictory on the point of Panchayat. In his cross-examination PW 6 has stated that he did not participate in the panchayat. He sent Gobind Narayan, Sarpanch, Churaman Prasad Dhongi Professor Sarswati to call the rather of the wife of the deceased for compromise. He could also not say whether any paper was prepared in the Panchayat. Thus, PW 6 though stated about the Panchayat did not say clearly as to who are the persons in when presence the panchayati was held. Since he did not participate in the Panchayat he is not extended to know about the statement which Laxmi Devi made in the Panchyat. Sarpanch of the Panchayat has not been examined.
7. PW 3, Bredhi Nath Mahto and PW 4 Bigal Kishore Mahto have stated that they went to the place of occurrence on hearing alarm and found the dead body of Murli Mahto. PW 3 has stated that he saw Gurudyal Mahto, Pramukh, Krityanand Bishwakarma and some other persons there. Both PW 3 and PW 4, have stated that on being asked Pramod Mahto and Laxmi Devi wife of the deceased stated before the Mukhia and Kinu Mahto that they have committed murder of Murli Mahto.
8. Amittedly, both these PWs i.e. PW 3 and PW 4 are not the eye-witnesses of the occurrence. None of them have seen the actual occurrence. Like/PW 1 they also simply say the dead body of the deceased. However, both them have claimed that accused Pramod Mahto, Mukhlal Mahto and Laxmi Devi admitted their guilt before them that they have committed the murder. In his cross-examination PW 3 has stated that on 26.2.1990 the accused persons were interrogated by them and thereafter they had voluntarily stated that Mukhia enquired from the accused persons on which they accepted their guilt. In this cross-examination, PW 4 his stated that the accused persons admitted their guilt before him and before the Mukhiya by the said of the village road that time it was evening.
9. The merit of the alleged extra judicial, confession by the accused persons before these two witnesses will be discuss later on. At this stage it will suffice it to say that the statements of these two witnesses are also not very satisfactory and above board.
10. PW 6 in his cross-examination has also stated that he did not see the occurrence with own eye. PW 5 Jahind Mahto has also stated that on hearing alarm he went to the place of occurrence and found the dead body of Murli Mahto. the Police came to the place of occurrence and seized some parts of sugarcane crusher machine i.e. wrenchee etc. and prepared a seizure list in which he put his signature. He has proved Ext. 2/2. He has stated that accused Pramod had illicit connection with the wife of the deceased, namely, Laxmi Devi. In his cross-examination PW 5 has stated that it is quite possible that wrenches etc. were taken for committing theft by the deceased and the owner of the machine may have committed murder. A rumour of this type also appeal in the village. He has further stated that there was a rumour in the village about the aforesaid illicit relation between Pramod and wife of the deceased, Laxmi Devi. He' had also heard this fact from deceased Murli Mahto. He has also admitted that he did not see as to who had committed murder.
11. PW 7, Bhuneshwar Mahto, he is the father of the informant, deceased and the accused Pramod Matho. He has also stated that he did not hear anything as to who committed murder. He has also stated that Muli was his son who used to live at Barkagaon. This witness was declared hostile by the prosecution and he denied his alleged statements made before the police. In the cross-examination he has stated that the police has not taken his statement. He has also stated she had not knowledge that there was any illicit relation with Pramod and wife of the deceased. PW 9, Md. Naim has stated that on having alarm he went to the place of occurrence where dead body was found. He has further stated that an inquest report has prepared by the police on which he has put his signature, which is marked as Ext. 2/3. In the cross-examination he has stated that he has not seen the paper nor the police read the same simply he has put his signature on the paper. PW 8, L.K. Thakur, is the I.O. of the case. He has stated that on 26.2.1990 at 8.30 a.m. Mathura Mahto went to the police station and gave his statement which was recorded by him. He has proved Ext. 4 i.e. has statement of informant. He has also proved Ext. 5, i.e. formal FIR which was drawn up on the basis of the aforesaid statement at the police station. PW 8 further stated that he took up the investigation of the case, visited the place of occurrence and took the statement of the witnesses. He found the dead body of Murli Mahto @ Gallu Mahto at the place of occurrence. The neck of the dead body was out and was in pool of blood, the dead body was lying in the filed. He has further stated that some part of the sugarcane machine were found on the eastern side of the dead body. The sugarcane crusher machines was opened. He has further stated that he has prepared the inquest report of the dead body in presence of Md. naim, Mukhia, Sikri Panchayat and Shri Krityan and Mistri, Mukhia, Barkagaon Panchayat. He has proved the inquest report marked as Ext. 6. He has further stated that the arrested accused Mukhlal Mahto and Pramod Mahto had admitted and confessed their guilt before the villagers, which was recorded by Kriyanand Mistri, Mukhia of Barkagaon Gram Panchayat then the said that the statements were recorded by Jawahar Prasad. He has proved the aforesaid confessional statements of the accused Mukhlal Mahto and Pramod Mahto, which has been marked as Ext. and 7/1. He has further stated that on the basis of the aforesaid confessional statement, he recovered a Farsa from a well, by which the neck of the deceased was cut. He prepared a seizure list in presence of witnesses, which has been marked as Ext. 8. PW 8 has further that after preparation of inquest report he sent the dead body for post mortem examination; which he has also proved Ext. 10, i.e. his petition making prayer for recording the statements of witnesses under Section 164 of the Code of Criminal Procedure . In his cross-examination PW 8 has stated that he did not consider it necessary to seize the parts of the machine lying near the dead body nor he tried to known about the ownership of the machine. He also did not think that the case was of theft. He has further stated that on 28.2.1990 he arrested Mukhlal Mahto and Pramod Mahto and on 1.3.1990 he arrested Mostt. Laxmi Devi. He has further stated and both the accused were arrested in presence of the villagers. Mukhia and other villagers and caught them and the statements of the accused persons were taken. He arrested them from that place. He did not ask the villagers from where they caught the two accused persons.
12. PW 2 is Doctor S.S. Sahay, who conducted the post-mortem examination on the dead body of the deceased. PW 2 has stated that on 26.2.1990 while he was posted as Civil Assistant Surgeon, Hazaribagh, at about 3.40 p.m. he had conducted post-mortem examination on the dead body of Murlidhar Mahto @ Gallu Mahto and found the following anti-mortem injuries:
(I) Incised wound 3" x 3" bone deep over left shoulder.
(II) Incised would 1' x 1/2" x muscle deep above right wrist on ventral surface.
(III) Incised wound 3" x 1/2" bone deep over chin.
(IV) Incised wound through upper part of the neck with cutting away of all tissues including all vessels, trachea, oesophgus and all bones. Head was attached with neck through skin on left side.
He further stated that all the injuries aforesaid were caused by sharp cutting weapon. In his opinion the death was caused due to shock and haemorrhage caused by the said injuries. He has proved the post-mortem report which has been marked Ext. 2. It appears that serial No. 2 has been given twice. Earlier the signature of Kirtyanand Bishwakarma on the fardbeyan had already been marked as Ext. 2 and the post-mortem report has also been subsequently marked as Ext. 2, which should have been Ext. 3. In his corss-examination he has stated that he has not mentioned colour of the injuries. In his corss-examination PW 2, i.e. the Doctor has clearly stated that the injuries were caused by sharp cutting weapon, but he did not name the weapon used by the assailants. Ext. 6 is the inquest report and Ext. 2/3 is the signature of Md. Naim on the inquest report. Ext. 9 is the Challan through which the dead body was sent and Ext. 2 (which should have been Ext. 3) is the post-mortem report. The aforesaid Exts. alongwith the evidence of the witnesses and the Dr. clearly establishes the fact that the dead body recovered was that of Murlidhar Mahto @ Gallu Mahto, brother of the informant. Certain injuries were found by the Doctor on the shoulder, right writs on ventral surface, chin and upper part of the neck with cutting away of all tissues including all vessel, traches, oesophagus and all bones, which were the cause of death of the said deceased. However, from the evidence of PWs mentioned above it appears that there is no eye-witness in this case i.e. none of the witnesses has stated that they saw the occurrence or say the accused persons running away just after the occurrence.
13. From the statement of the informant on the basis of which a case has been registered shows that he expressed his suspicion on the appellants due to the fact that these two persons had illicit connection with the wife of the deceased (Laxmi Devi, who has been acquitted by the Trial Court). However, none of these witnesses claimed to have seen anything by which illicit relation between Laxmi Devi and other appellants specifically Pramod Mahto can be established. Suprisingly Ashok Lai and Bandhu Mahto, who went with the informant to identify the dead body have not been examined, Similarly Krishna Bishwakarma and Nanhak Mahto, who had accompanied the informant to the police station have also not been examined. Their signatures have simply been proved by the informant, as Exts. 2 and 2/1. Non-examination of these witnesses also give negative inference on the prosecution case against the accused persons. Thus, the witnesses examined have stated nothing on the basis of which the prosecution's claim that accused persons have committed murder of Murli Mahto can be accepted . Now the evidence on the basis of which the Trial Court mainly came to the conclusion that the accused persons have committed murder is the extra judicial confession of these two accused appellants before the villagers, out of whom PW 3 and PW 4 have been examined. Both these two witnesses have stated that the accused persons accepted and confessed their guilt in presence of them as well as the Mukhia of Gram Panchyat. The Mukhia, who was the most important and reliable witness in this case, has not been examined to corroborate the aforesaid fact, surprisingly the Investigating Officer (PW 8 has also stated about the aforesaid confession by the accused persons before the villagers. The I.O. has also stated that Mukhia, Barkagaon Gram Panchayat recorded the aforesaid statements then said that the statement was recorded by Jawahar Prasad. This I.O. has identified the writings and signature of Jawahar Prasad and signatures of other witnesses who signed on the confessional statements, which have been marked as Ext. 7 and Ext. 7/1. Now this Jawahar Prasad has also not been examined by the prosecution. I.O. has also stated that on the basis of the confessional statement he recovered one Farsa from a well and prepared a seizure list which has been marked as Ext. 8. Both the witnesses of the seizure have also not been examined to corroborate the facts. None of the witnesses, have stated that the I.P. recovered a farsa from a well on the basis of the statement of the accused persons. The farsa has also not been produced and marked Ext. before the Trial Court. In that view of the matter except the paper there is nothing the show that the farsa had actually been recovered. Moreover none of the witnesses have seen the assailants committing murder. Thus the instrument used in the commission of murder has also not come from the mouth of any of the witnesses. PW 2, who conducted the postmortem examination of the dead body has clearly stated that he cannot name the weapons used by the assailants. In that cases it is also difficult to assume that actually farsa was used in commission of the crime. As mentioned aforesaid Shri Jawahar Prasad the scribe of the papers Exts. 7 and 7/1, the alleged confessional statements of the appellants has not been examined surprisingly the I.O. identified the handwritings of Jawahar Prasad as the scribe of the alleged extra judicial confessions. It is not expected that I.O. will know the writings of all the villagers. He has also stated or given any explanation as to how he knew the writings of Jawahar Prasad who wrote the confessional statements. The Mukhia and one another person, in whose presence the appellants alleged to have made the statements, have also not been examined to corporate the facts. I am, therefore, unable to persuade myself to give any credence these statements (Exts. 7 and 7/1). In support of any aforesaid findings reliance is also placed an Full Bench decision of the Supreme Court in the case of Vinod Chaturvedi etc. v. State of Madhya Pradesh , which may be gainfully quoted below:-
So far as the other document is concerned, as already indicated by us, it is a letter written by the Superintendent of Police to his administrative superior. The writer of the letter has not been examined as a witness. No opportunity has been given to the defence to cross-examine the writer. To rely on the contents of that letter in such circumstances is totally misconceived. The document was not available to be relied upon for any purpose and the High Court clearly went wrong in seeking support from it by way of corroboration of the evidence.
14. The Supreme Court in the case of Sakharam Shankar Bansode v. State of Maharashtra has also held that:-
It is well-settled now that a retracted extra-judicial confession, though a piece of evidence on which reliance can be placed, but the same has to be corroborated by independent evidence.
If the evidence of witness before .whom confession made was unreliable and his conduct also doubtful and there is no other circumstances to connect accused with crime, conviction based solely on retracted extra-judicial confession, not proper and the accused entitled to acquittal.
15. Mr Bhaiya Vishwajeet Kumar learned Counsel for the appellants contends that the Supreme Court in the case of Balwinder Singh v. State of Punjab reported in-1995 Supp (4) SCC 259, has held that:
An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extra-judicial confession.
16. The learned Counsel, therefore, submits that in this case also the evidence of PW 3 and 4 before whom the allegeged confessions were made are not reliable. Similarly the conduct of the I.O. also become doubtful and there was no other circumstances to connect the accused with the crime hence the conviction based solely on retracted extra-judicial confession, is not proper and the accused persons are entitled to acquittal, I have given any anxious consideration on the aforesaid submissions of the learned Counsel for the appellants. On the basis of the law laid down by the Supreme Court as aforementioned the inability of the prosecution to produce reliable and independent corroboration of the alleged confessional statements of the appellants, makes the conviction and sentence of the accused persons illegal.
17. Mr. Kumar further contends that the learned trial Court while examining the appellants under Section 313 of the Code of Criminal Procedure has committed a serious irregularity by not explaining the circumstances appearing in the evidence against them. The learned trial Court did not explain the exact statements alleged to have been made by these -two accused persons accepting their before the villagers. There is nothing to show in their statements about any panchayat, arising out of the quarrel with the deceased and the accused appellants Prasad Mahto on the point of his illicit relation with the wife of the accused under Section 313 of the Code of Criminal Procedure will, therefore, clearly show that the accused appellants have been seriously prejudiced and these irregularities vitiate the trial.
18. Mr. Kumar argued that the Supreme Court in S. Harnam Singh v. The state, (Delhi Admit .) reported in 1976 CrLJ 913, Supreme Court has held that:-
Section 342 of the Code of Criminal Procedure 1898, casts a duty on the Court to put, at any enquiry or trial, questions to the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that material circumstance appearing in evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to a serious irregularity vitiating the trial if it is shown to have prejudiced the accused. If the irregularity does not, in fact, occasion a failure of justice, it is curable under Section 537 of the Code.
19. The learned Counsel further submits that at the relevant time Criminal Procedure Code was not amended and so the Section has been referred to under Section 342 which is just repetition of Section 313 of the new Code of Criminal Procedure. The learned Counsel therefore, argues that the findings of the learned trial Court also suffers from serious lacuna.
20. I have given an anxious consideration on the aforesaid submissions. The findings of the trial Court are full of legal infirmities and cannot be upheld. Accordingly, I am unable to accept the findings of the Court below that the prosecution has been able to prove the charges under Section 302/34 of the Indian Penal Code against the accused appellants, namely, Mukhlal Mahto and Pramod Mahto beyond all reasonable doubts. The conviction and sentence recorded by the trial Court are, therefore, set aside.
21. In the result, the appeal, thus, succeeds. The accused appellants are, hereby acquitted. They may be released forthwith from the custody, if not required in any other cases.
Aftab Alam, J.
22. I agree.