Patna High Court
Parshu Ram Dhadhi vs State Of Bihar on 21 October, 2011
Author: Shyam Kishore Sharma
Bench: Shyam Kishore Sharma, Dinesh Kumar Singh
Criminal Appeal No. 592 OF 2005 (DB)
With
Criminal Appeal No. 243 of 2003 (DB)
With
Criminal Appeal No. 294 of 2003 (DB)
------
Cr.Appeal Nos. 243 and 294 of 2003 are against the
judgment of conviction dated 05.05.2003 and order
of sentence dated 19.05.2003 passed by Sri Paras Nath
Sinha,Presiding Officer,Addl.Court (Fast Track),Munger
in Sessions Case No. 202 of 1995/T.R.No. 209 of 2002 and
Cr.Appeal No.592 of 2005 (DB) is against the judgment
of conviction dated 26.08.2005 and order of sentence
dated 31.8.2005 passed by Sri Krishna Kumar Srivastava,
Additional Sessions Judge, Fast Track Court,Sheikhpura
in Sessions Case No.202 A of 1995/T.R.No. 257 of 2005.
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Parshu Ram Dhadhi @ Dhari ------ -- Appellant
(in Cr.A.No.592/2005)
-----
1. Tulsi Dhadhi @ Dhari
2. Dasrath Dhadhi @ Dhari
3. Darogi Dhadhi @ Dhari
4. Awadhesh Dhadhi @ Dhari
5. Ranglal Dhadhi @ Dhari
6. Loha Dhadhi @ Dhari
7. Jhingan Dhadhi @ Dhari
8. Anik Dhadhi @ Dhari
9. Chaman Dhadhi @ Dhari
10. Baran Dhadhi @ Dhari
11. Kumar Dhadhi @ Dhari ------ Appellants
(in Cr.A.No.243 of 2003)
-----
1. Lakhan Dhadhi @ Dhari
2. Bachchu Dhadhi @ Dhari
3. Ramanand Dhadhi @ Dhari
4. Upendra Dhadhi @ Dhari ----- Appellants
(in Cr.A.No. 294 of 2003)
VERSUS
The State of Bihar ---- Respondent
(in all the three appeals)
For the appellant : M/s Mani Bhushan Kumar No.1
and Pramod Kumar
(in Cr.A.No. 592 of 2005)
For the appellants : M/s M.S.Madhup, Amresh, Ram
Pravesh and Sanjeev Ranjan
(in Cr.A.Nos 243 and 294 of 2003)
2
For the State : Ms. Shashi Bala Verma, Addl.P.P.
(in all the three appeals)
------
P R E S E N T
THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH
-------
S.K.Sharma
&
D.K.Singh,JJ. Cr.Appeal No. 592 of 2005(DB) has been
preferred against the judgment of conviction dated
26.08.2005 and order of sentence dated 31.08.2005
passed by Sri Krishna Kumar Srivastava, Additional
Sessions Judge, Fast Track Court, Sheikhpura in
Sessions Trial No. 202A of 1995/T.R.No. 257 of 2005
whereby appellant Parshu Ram Dhadhi has been convicted under Sections 302/149 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life under Section 302/149 of the Indian Penal Code but no separate sentence has been awarded under Section 148 of the Indian Penal Code.
2. Cr.Appeal Nos. 243 and 294 of 2003 (DB) have been preferred against the judgment of conviction dated 05.05.2003 and order of sentence dated 15.05.2003 passed by Sri Paras Nath Sinha, Presiding Officer, Addl. Court (Fast Track), Munger whereby appellant Kumar Dhadhi has been convicted under Sections 147, 323, 302 read with Sections 149 and 448 of the Indian Penal Code but he has only been sentenced under Section 302 read with Section 149 of 3 the Indian Penal Code to undergo rigorous imprisonment for life but no separate sentence has been awarded under Sections 147,323 and 448 of the Indian Penal Code and rest appellants of this appeal namely, appellants Tulsi Dhadhi, Dashrath Dhadhi, Darogi Dhadhi, Awadhesh Dhadhi, Ranglal Dhadhi, Loha Dhadhi, Jhingan Dhadhi, Anik Dhadhi, Chaman Dhadhi and Baran Dhadhi have been convicted under Sections 148, 302 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life but no separate sentence has been awarded under Section 148 of the Indian Penal Code.
3. Appellants of Cr.Appeal No. 294 of 2003(DB) namely, Lakhan Dhadhi, Bachchu Dhadhi, Ramanand Dhadhi and Upendra Dhadhi, have been convicted under Sections 148,302 and 448 of the Indian Penal Code and under Section 27 of the Arms Act and sentenced only under Section 302 of the Indian Penal Code to undergo imprisonment for life but no separate sentence has been awarded under Sections 148,448 of the Indian Penal Code and under Section 27 of the Arms Act. Appellant Lakhan Dhadhi has further been convicted under Section 307 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years. However, both the sentences of this appellant are ordered to run concurrently. 4
4. Appellant Moti Dhadhi has been convicted under Sections 148, 307,302 read with Section 149 of the Indian Penal Code and 27 of the Arms Act and accused Mahesh Dhadhi has been convicted under Sections 148 and 302 read with Section 149 of the Indian Penal Code but have not been awarded any sentence. Since the trial court calculated their age as 25 years and 24 years, respectively, as on 3.10.2001, when the occurrence took place on 2.1.1993, hence they were assessed to be 16 years to 17 years on the date of occurrence. Accordingly, their sentence was deferred untill Juvenile Justice Board determines their age.
5. The prosecution case started with the fardbeyan of Baleshwar Mahto recorded on 2.1.1993 at about 8.00 P.M., by Officer-in-Charge, Sheikhpura P.S. in village Bhadausi, to the effect that quarrel between Dhadhi and Dhanuk caste was going on since long, in Tal area and several occurrences had taken place in recent months and due to such occurrences, people of Dhadhi community were quite active but there was no impact on the villagers of the informant. It is alleged by the informant that few days prior to the occurrence, the people of Dhadhi community forcefully abducted the son-in-law of Sharan Mahto and the cousin of his son-in-law. The informant informed the Chaukidar Tulsi Ram about abduction but 5 no case was instituted. On 2.1.1993 at about 9.00 A.M. Chaukidar Tulsi Ram came to the informant‟s village and informed that the matter has been reported to Police and the Dy.S.P. is expected to reach the village. Thereafter, at the instigation of Chaukidar Tulsi Dhadhi, 59 people of Dhadhi community from the nearby villages came variously armed and attacked 18 houses of Dhanuk community and looted their household articles and assaulted them. The occurrence took place between 11.A.M to 1.00 P.M. on 2.1.1993. In the meantime, when the police came, the miscreants fired upon the police party also and fled away towards village Bhadosi. While retreating, the miscreants set their houses on fire. The informant, after fleeing away of the miscreants, came to know that Sukhdeo Mahto, Bideshi Mahto, Nischal Mahto, Mittan Mahto and Chetlal Mahto have been killed by the miscreants by causing fire arm injuries. The informant (P.W.18) also came to know from Hari Charan Mahto that accused Indradeo Mahto committed murder of Sukhdeo Mahto and Lakhan Dhadhi, Ramanand Dhadhi, Upendra Dhadhi and Bechchu Dhadhi committed murder of Nishchal Mahto, Chetlal Mahto, Bideshi Mahto and Mittan Mahto, respectively. Initially Bideshi Mahto and Mittan Mahto were badly injured but they succumbed to injuries while being taken to Sheikhpura Hospital. The 6 informant also claimed that Ram Mahto, Lalkishun Mahto and Ajo Devi wife of Chetlal Mahto also received injuries. The witnesses to the occurrence are villagers but the fardbeyan does not disclose the name of any witness though the informant claims to have signed the fardbeyan in presence of co-villager Haricharan Mahto. Haricharan Mahto and Gayani Mahto are attesting witnesses to the fardbeyan.
6. Fifty eight persons were named as accused in the first information report. Chargesheet was filed against fifty eight named accused and two non- F.I.R.accused namely, Dadhibal Dhari and Girja Dhari. Order of cognizance was passed on 8.6.1993. Out of sixty accused, two accused persons namely, Parshu Ram Dhadhi and Guriya Dhadhi were reported to be in Jamui and Sheikhpura jail, respectively. Guriya Dhadhi was produced from Sheikhpura Jail but when no communication was received from Jamui jail regarding production of Parshu Ram Dhadhi, he was declared absconder. Two other accused persons, namely, Bulak Dhadhi and Lulha Dhadhi were also declared absconders. Five persons namely, Hari Dhadhi, Gajadhar Dhadhi, Indradeo Dhadhi, Tirpit Dhadhi and Karu Dhadhi died during pendency of the trial. Hence, fifty two accused persons faced trial in Sessions case No. 202 of 1995, Trial No. 209 of 2002.
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7. Charges under Section 302 of the Indian Penal Code and 27 of the Arms Act were framed against Lakhan Dhadhi, Bachu Dhadhi, Ramanand Dhadhi and Upendra Dhadhi for committing murder of Sukhdeo Mahto, Nischal Mahto, Chhotelal Mahto, Bideshi Mahto and Mittal Mahto, respectively. Charge under Section 307 of the Indian Penal Code was framed against Lakhan Dhadhi, Awadhesh Dhadhi and Moti Dhadhi for attempting to commit murder of Ram Mahto, Sharan Mahto and Lalkishun Mahto. Kumar Dhadhi was charged under Section 323 of the Indian Penal Code for causing injury to Ram Ashray Mahto. Charge under Section 148 of the Indian Penal Code was framed against all the 52 accused persons who faced the trial for committing the offence of rioting, being armed with fire arms. Charge under Section 448 of the Indian Penal Code was framed against all 52 accused persons for committing house trespass in the house of Sukhdeo Mahto, Nischal Mahto, Chotelal Mahto, Bideshi Mahto, Mital Mahto and others. Charge under Section 302/149 of the Indian Penal Code was framed against all the 52 accused persons for forming an unlawful assembly in prosecution of the common object to commit murder. Charge under Section 380 of the Indian Penal Code was also framed against all the 52 accused persons for committing theft in the house of Ram Lakhan Mahto, 8 Sukhdeo Mahto, Nishchal Mahto, Chetlal Mahto, Bideshi Mahto, Mitan Mahto, Hari Charan Mahto, Urmila Devi, Rachia Mahto, Saran Mahto, Ram Sakhi Devi. Charge under Section 436 of the Indian Penal Code was framed against all the 52 accused persons for causing mischief by fire with intent to cause destruction of the houses of Bane Dhadhi, Banbka Dhadhi, Ranjit Dhadhi and others.
8. Subsequently, accused Parshu Ram Dhadhi (appellant of Cr.Appeal No. 592 of 2005) was produced from Jamui jail. Hence, after commitment, charges were separately framed against him under Sections 302/149,148,,448, 380 and 436 of the Indian Penal Code and his trial proceeded separately which concluded in conviction.
9. Charges were framed against the accused persons who pleaded innocence and faced the trial.
10. In order to prove its case, the prosecution has examined altogether 20 witnesses. Most of them are family members of the injured or deceased and the official witnesses.
11. P.W.1 Ram Mahto is son of deceased Mittal Mahto. P.W.2 Hari Charan Mahto is son of Sukhdeo Mahto, P.W.3 Ram Sakhiya Devi is wife of deceased Sukhdeo Mahto, P.W.4 Saran Mahto is son-in-law of one of the deceased and was kidnapped. P.W.5 Daso 9 Mahto is brother of deceased Sukhdeo Mahto and Bideshi Mahto. P.W.6 Urmila Devi is the wife of deceased Nischal Mahto. P.W.7 Shankar Mahto is son of deceased Bideshi Mahto. P.W.8 is Dr. Dharam Nath Choudhary who conducted postmortem over the dead body of Nishchal Mahto. P.W.9 is Dr.Mehi Lal Singh who conducted postmortem over the dead body of Sukhdeo Mahto. P.W.10 is Dr.Birendra Pd.Gupta who conducted postmortem over the dead body of Mital Mahto. P.W.11 Kamaldeo Mahto alias Kamo Mahto is brother of deceased Bideshi Mahto and Sukhdeo Mahto. P.W.12 Ram Ashray Mahto is an injured and son of deceased Chetlal Mahto. P.W.13 Sabiya Devi is wife of deceased Bideshi Mahto. P.W.14 is Dr.Kameshwar Prasad Sinha who conducted postmortem over the dead body of Chetlal Mahto. P.W.15 is Dr.Rakesh Kumar Sinha who conducted post mortem over the dead body of Bideshi Mahto. P.W.16 is Dr.Rajendra Prasad Jaiswal who examined Ram Mahto (P.W.1), Lal Kishun Mahto (P.W.17), Ram Ashray Mahto (P.W.12) and Ajo Devi wife of deceased Chetlal Mahto. P.W.17 Lal Kishun Mahto is one of the injured. P.W.18 Baleshwar Mahto is the informant of the case. P.W.19 Gyani Mahto is a formal witness, who has proved inquest reports of the deceased. P.W.20 Ram Bachan Singh is a retired Sub-Inspector of Police who recorded the fardbeyan and prepared the inquest reports. Main Investigating 10 Officer of the case has not been examined during trial.
12. It is the admitted fact that in the alleged occurrence five persons namely, Sukhdeo Mahto, Nishchal Mahto, Chet Lal Mahto, Bideshi Mahto and Mittan Mahto were killed whereas seven persons received injuries namely, Ram Mahto who is son of deceased Mittan Mahto and has been examined as P.W.1, Sharan Mahto is son-in-law of deceased Chetlal Mahto and has been examined as P.W.4, Daso Mahto is brother of deceased Bideshi Mahto and has been examined as P.W.5,Ram Ashray Mahto who is son of deceased Chetlal Mahto has been examined as P.W.12 and Lalkishun Mahto who has been examined as P.W.17. Though, Ajo Devi (wife of deceased Chetlal Mahto) and Nunlal Mahto are alleged to have sustained injuries, but they have not been examined.
13. All the five deceased were killed at five different places. Hence witnesses have initially deposed specifically, only with regard to victim related to them but at subsequent stage of evidence, claimed to have seen the murder and assault of all the victims.
14. So far as assault on deceased Sukhdeo Mahto and Bidesshi Mahto is concerned, the prosecution has examined P.Ws. 2, 3, 5, 7, 11 and 13,of whom P.Ws.2 11 and 3 are the son and wife, respectively, of deceased Sukhdeo Mahto. P.Ws.5 and 11 are brothers of deceased Bideshi Mahto and Sukhdeo Mahto. P.W.7 is son of deceased Bideshi Mahto. P.W.13 is wife of deceased Bideshi Mahto. Hence, it appears that the prosecution, in order to prove its case with regard to murder of Sukhdeo Mahto and Bideshi Mahto, have only examined the family members.
15. P.W.2 in paragraph 1 of his evidence, has deposed that Indradeo Dhadhi (since dead) inflicted three sword blows on the head of his father Sukhdeo Mahto, as a result of which he died. It has been further stated that Lakhan Dhadhi fired at Nishchal Mahto and Indradeo Dhadhi (since dead) assaulted twice by sword to Nishchal Mahto. Ramnandan Dhadhi caused injury by rifle to Chetlal Matho causing his death. Bachu Dhadhi fired from double storeyed roof at Mittal Mahto, causing his death. Lakhan Mahto also caused fire arm injuries to Ram Mahto (P.W.1), on his arms. It is also admitted by this witness that Jai Kishun Mahto also received fire arm injury, while Munni Lal Mahto and Ajo Devi (wife of Chetlal Mahto) were also assaulted by Indradeo Dhadhi (since dead). This witness claims to have seen the occurrence from the window of a room (Kothari) of his house. This witness admits that the police came and they also 12 resorted to firing for about half an hour.
16. P.W.2 claims to have identified 22 accused persons and his attention was drawn towards the statement under Section 161 of the Code of Criminal Procedure which is recorded in paragraph 13 of the case diary and has been marked as Ext.7 which indicates that he has not named Chaman Dhadhi, Lulah Dhadhi, Awadhesh Dhadhi, Nandlal Dhadhi, Gita Dhadhi, Baran Dhadhi and Sharwan Dhadhi, as members of the mob. To that extent, the learned Trial Court found the evidence of P.W.2 being improved in the court. It is clear that all the five persons were killed at different places. Hence, claim of P.W.2 to have seen the assault inflicted upon all the five deceased, has been disbelieved by the Learned Trial Court, as it reflects from the finding recorded in paragraph 105 of the judgment, but it appears from paragraph no. 47 of the judgment that the Learned Trial Court has relied on the evidence of P.W.2, to the extent of murder of his father Sukhdeo Mahto and uncle Bideshi Mahto, who are claimed to have been residing in the same house.
17. P.W.2 has stated in his evidence that 100- 125 persons came in his Tola, and fired indiscriminately. He has further stated that Indradeo Dhadhi assaulted thrice, by sword, on his father‟s head, causing instant death of his father. Admittedly, 13 as per the evidence of P.W.2 in paragraph 3, he witnessed the entire occurrence from a window gap of a room in his house. But nowhere in his evidence, he has specifically mentioned as to where, his father was actually assaulted, whether it was in the house or outside the house. Moreover, P.W.2 claims to have witnessed all the killings, which took place during the occurrence, but the question which arises is whether P.W.2 could have seen the entire occurrence which took place at different places from the same window gap in the room of his house. Hence, his claim of being an eye witness to all the five killings, cannot be relied upon. In paragraph 4 of his evidence, P.W.2 has further stated that he visited all the houses after the occurrence, which seems very unreasonable behaviour, to be believed, in the light of the fact that his own father was also killed.
18. P.W.3 deposed to the effect that Indradeo Dhadhi (since dead) gave three sword blows to her husband, while she has further stated that Upendra Dhadhi killed Bideshi Mahto by fire arm. Considering this improvement in the evidence of P.W.3, learned Trial Court accepted the evidence of P.W.3 to the extent that her husband Sukhdeo Mahto was killed by Indradeo Dhadhi (since dead). Since Indradeo Dhadhi is dead, the evidence of P.W.3 does not help the 14 prosecution to prove the case against others beyond the shadow of all reasonable doubts. P.W.3‟s evidence has been found to be improved, vis-à-vis her statements given before the Investigating Officer. The Learned Trial Court has examined the evidence of P.W.3 in paragraph 50 of the judgment, but the same is confined only with regard to the proving of the assault upon her husband, Sukhdeo Mahto.
19. P.W.5 Daso Mahto is the brother of deceased Bideshi Mahto and Sukhdeo Mahto. He also claimed that Indradeo Dhadhi (since dead) inflicted sword blow on head of Sukhdeo Mahto, whereas Upendra Dhadhi shot at on Bideshi Mahto, who died on the way, when he was being taken for treatment. This witness also claimed that Bachchu Dhadhi shot Mittal Mahto from his gun, Lakhan Dhadhi killed Nishchal Mahto with fire arm and Ram Nandan Dhadhi killed Chetlal Mahto from his rifle. This witness in paragraph 10 of his evidence admits that there were four rooms in his house and he and his three other brothers namely, Kamo alias Kamaldeo Mahto (P.W.11), Sukhdeo Mahto and Bideshi Mahto (both deceased) used to reside in their respective rooms. P.W.5 also claims to have seen the occurrence from the window of his house. The Trial Court has recorded in paragraph 56 of the judgment, that P.W.5 has improved his version, so far as the 15 identification of the accused persons are concerned. He has not stated the same thing before the police, in his statement recorded under Section 161 of the Code of Criminal Procedure, which finds mention in paragraph 95 of the case diary. Many persons, whom he identified have not been named by this witness before the police. The learned Trial Court has disbelieved the evidence of this witness so far as witnessing of assault upon all the five deceased is concerned, but has relied upon his evidence, to the extent of assault of Sukhdeo Mahto and Bideshi Mahto, who were living in the same house but in different rooms. Admittedly, Sukhdeo Mahto and Bideshi Mahto were killed in two different rooms. Hence, the claim of this witness, of having witnessed the assault on Sukhdeo Mahto and Bideshi Mahto also appears to have become doubtful, which also reflects from the fact that this witness was examined for the first time by the police on 23.1.1993, whereas the occurrence took place on 2nd January, 1993. It appears unreasonable that being the brother of deceased Sukhdeo Mahto and Bideshi Mahto, he could not have been examined immediately after occurrence. Rather on giving a prudent thought, the case ought to have been initiated on his fardbeyan. The delay in recording the statement of this witness by the police leads credence to the defence version 16 that P.W.5 was not present at the place of occurrence.
In spite of all such inconsistencies and contradictions in the evidence of P.W.5, the Learned Trial Court has wrongly placed reliance on the
evidence of this witness, so far as the assault which took place in his house is concerned, but the learned Trial Court has failed to consider this crucial fact that in spite of such assault taking place in his house, P.W.5 remained safe and received no injury.
20. P.W.7 Shankar Mahto is son of deceased Bideshi Mahto who also claims to have seen the occurrence and has stated that Upendra Dhadhi dragged his father from Angan to the lane and then shot his father. This witness has stated that his father died on the way, while he was being taken by the police but admits, in paragraph 7 of his evidence, that neither he nor his mother Sabiya Devi (P.W.13) were assaulted by the accused persons. This witness also claims that he and his mother had seen the occurrence through a window of size 15"x10" and canvassed this fact to the Investigating Officer but visibility of the place of occurrence from the alleged window has not been proved due to non-examination of the Investigating Officer. The non-examination of the Investigating Officer caused prejudiced to the defence with regard to dragging of the deceased Bideshi Mahto from Angan to the lane, as no 17 dragging injury or sign has been found by the doctor during post mortem examination which impeaches the credibility of this witness.
21. P.W.11 is the brother of Bideshi Mahto and Sukhdeo Mahto. He claims to have seen the occurrence of murder of Bideshi Mahto. He has admitted in paragraph no. 5 of his evidence that he has five brothers and each brother has one room and he saw the accused persons from the window of his room of size 1x2 cubits. However, he admits that he had not shown the said window to the Investigating Officer. Admittedly, this witness also claims to have seen the occurrence from the window which does not appear to be reasonable.
22. P.W.13 Sabiya Devi is the widow of deceased Bideshi Mahto. She admits that she was at her house when the occurrence took place. She also claims to have seen the entire occurrence. This witness has stated in paragraph 4 of her evidence, that her husband Bideshi Matho was fired upon from close range whereas according to P.W.15 Dr. Rakesh Kumar Sinha, the injury may have been caused by fire arm, from a distance of 12 feet. Initially, P.W.13 has stated that about 100 persons entered the Mohalla and six persons entered her house and Upendra Dhadhi shot at her husband at point blank range, but her deposition of being an eye witness to the murder of her husband gets contradicted by the opinion 18 of the Doctor, i.e. P.W.15, who conducted the post mortem of the dead body of Bideshi Mahto, the husband of P.W.13, and it has been opined by the P.W.15 in specific terms that he did not find any charring, blackening or singeing injury around the wound of entry and the injury was also not caused from point blank range rather from a distance of 12 feet. This indicates that Bideshi Mahto, the husband of P.W.13, was killed in some other manner, than the manner suggested by P.W.13. The evidence of P.Ws. 7,11 and 13 also gets clouded, in view of the post mortem report suggesting fracture of right pelvic bone-illium and eschuive of Bideshi Mahto, whereas all the prosecution witnesses have consistently claimed that Bideshi Mahto received only on fire-arm injury. The aforesaid injuries suggest that they have been caused by some hard and blunt substance and the same also seriously clouds the ocular evidence suggesting that, either the witnesses have not seen the occurrence or have deposed falsely and have not unfolded the true story.
23. So far as the assault to Nishchal Mahto is concerned, the prosecution has relied upon the evidence of P.Ws. 2,4,5,6,8,11 and 12. P.W.8 is Dr.Dharam Nath Choudhary who conducted post mortem over the dead body of Nishchal Mahto. P.Ws.2,4,5,11 and 12 have been disbelieved by the Trial Court, as it was not possible 19 for them to have seen the occurrence from their respective rooms. Hence, the conviction for assaulting Nishchal Mahto is based on the evidence of P.W.6 only, who is the widow of Nishchal Mahto. She has stated that Lakhan Dhadhi fired at her husband, whereas Inradeo Dhadhi (now dead) inflicted sword blow on the neck of her husband. P.W.8 who conducted the post mortem over the dead body of Nishchal Mahto found three incised wounds adjacent to each other on right side of neck laterally of size 4"x2"x bone deep which clouds the bona fide of claim of P.W.6 of having been present at the place of occurrence. P.W.6 in paragraph 3 has stated that about 100 persons entered into her house, which consists of one room of size 10‟x5‟ having height of around 10-12 feet and it is also claimed that she was pushed out of the room. This statement creates suspicion with regard to witnessing/visualizing of the occurrence by P.W.6 from her room, though P.W.6 has subsequently improved her version by saying that only two persons namely, Lakhan and Indradeo Dhadhi entered into her house. Hence, the evidence of P.W.6, who claims to be present at the place of occurrence when Nishchal Mahto was killed, appears to be doubtful. But in spite of such glaring inconsistencies, the learned Trial Court has passed the conviction relying upon the evidence of P.W.6.
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24. So far as the assault to Mittan Mahto is concerned, the prosecution has relied upon the evidence of P.Ws. 1,2,5, 10,11 and 12. P.W.10 is Dr.Birendra Pd.Gupta, who conducted post mortem over the dead body of Mittan Mahto. P.W.1 Ram Mahto is son of deceased Mittan Mahto, who claims that at the time of occurrence he was present in the house, when 100-125 persons, variously armed, came and accused Bachu Ram fired with his gun at his father and thereafter threw him on the ground from the upper floor. Lakhan Ram also fired which hit the right hand of this witness, rendering him unconscious. Though P.Ws. 2,5,11 and 12 have also supported the prosecution version with regard to the assault on Mittan Mahto, but they have rightly been disbelieved by the learned Trial Court, as recorded in paragraph 108 of the judgment, on the ground that they could not have seen the occurrence from the windows of their respective rooms. So far as P.W.1, the son of Mittan Mahto, is concerned, his specific evidence is that after causing fire arm injury, Bachu Ram threw his father from the upper floor of his house, but no injury, caused by fall on the ground from the upper floor, was found by the doctor P.W.10, as P.W.10 has only found lacerated oval wound 11/2"x1"x soft tissue deep, situated just above the penis. The learned Trial Court accepted the evidence of P.W.1, of having witnessed the 21 firing upon his father by Bachu Ram and on him by Lakhan Dhadhi. The contradiction between the medical evidence and ocular evidence creates doubt about the evidence of P.W.1 as the medical evidence substantially negates the manner of occurrence, so far as the assault on Mithan Mahto is concerned. It is true that the medical evidences are not conclusive in nature and it cannot override the ocular evidence but when the medical evidence substantially negates the ocular evidence regarding manner of occurrence, then at least it creates doubt about bona fide of the prosecution evidence.
25. So far as the assault to Chetlal Mahto is concerned, P.Ws. 2,3,4 and 5 claim to be the eye witness of the occurrence. They have stated that accused Ramnandan Dhadhi fired at Chet Lal Mahto from his rifle but the evidence of P.Ws. 2,3,4 and 5 has rightly been disbelieved by the learned Trial Court, as mentioned in paragraph 121 of the judgment, since they claim to have seen the occurrence from the window of their respective houses, while the evidence of P.W.12, son of the deceased Chet Lal Mahto has been relied upon.
26. The prosecution has based its case with regard to the murder of Chet Lal Mahto, on the evidence of P.W.12-Ram Ashray Mahto, who is none else than the son of the deceased, since he claims that he was present at the place of occurrence, but it appears from 22 paragraph 119 of the judgment that the statement of this witness was recorded by the police on 30.01.1993 which is after a delay of 28 days of the occurrence. Hence, his evidence, that accused Ramnandan Dhadhi fired with his rifle on his father and Indradeo Dhadhi (who died during trial), assaulted with sword to his father and when her mother Ajo Devi went to rescue his father, she was also assaulted by sword on her hand, cannot be believed. There was no occasion for him to withhold his statement for 28 days and the same cannot be casually ignored and has to be given due consideration in the facts and circumstances of the case. It is surprising that Ajo Devi, the wife of the deceased Chetlal Mahto, who also received injury and was present at the place of occurrence has been withheld by the prosecution, as she has not been examined.
27. On perusal of the evidences on record, regarding assault made on all the five deceased, it appears that the entire village was attacked, but to prove the murder of five persons, the prosecution has only examined the family members and claimed that no one was present near the place of occurrence.
28. So far as, the case of six injured are concerned, two injured namely, Ajo Devi and Nunlal Mahto have not been examined. So far as, injured Ram Mahto (P.W.1) is concerned, he was examined by P.W.16 23 Dr.Rajendra Prasad Jaiswal, who found two injuries: one is lacerated wound on right upper arm ½"x1/2" and the other is abrasion on right side of cheek 1"x1/2". Though the assailants were more than hundred in number but the injuries and that too on non-vital part envisages that the assailants had no intention to kill him.
29. So far as, the injury caused to P.W.4 Saran Mahto is concerned, accused Awadhesh Dhadhi is alleged to have inflicted sword injury on his head and he was treated at the hospital, but no medical evidence has been brought on record to prove P.W.4‟s injury hence the prosecution case of injury being caused to P.W.4 has rightly been disbelieved by the Learned Trial Court, as mentioned in paragraph 133 of the judgment.
30. Another injured, Ram Ashray Mahto (P.W.12), who is son of deceased Chetlal Mahto, was examined by Dr.Rajendra Parasad Jaiswal (P.W.16), who found swelling on the forehead of 2"x1" dimension, simple in nature, caused by hard and blunt substance. This injured has claimed that Kuer Dhadhi gave a danda blow on his forehead. The nature of injury reflects that accused had no intention to make an attempt on the life of this witness.
31. So far as, injured Lal Kishun Mahto (P.W.17) is concerned, he is alleged to have been dragged from his house by Moti Dhadhi and thereafter caused fire arm 24 injury below the left side-burns. He was examined by Dr.Rajendra Prasad Jaiswal (P.W.16) who found two injuries: "(i) lacerated injury on left side of upper portion of neck 1 ½"x1/2" x1/2" indicating bullet injury and (ii) Abrasion on left side of chest 1"x1/2". The injuries were found to be simple. But the doctor did not mention any recovery of bullet from injury no.1, though it was indicated that the injury was caused by bullet. Hence there is contradiction between the medical evidence and the ocular evidence as claimed by the injured witnesses. Moreover, nature of injuries do not suggest any intention of the accused persons to make an attempt on the life of this witness.
32. All the witnesses examined on behalf of the prosecution are relatives of the deceased or injured, except P.W.18-Baleshwar Mahto, who is the informant of the case. Baleshwar Mahto has stated in his evidence, that he was at his house on the date of occurrence i.e., 2.1.1993. The claim of the informant is that he saw a mob of 100-150 persons armed with rifles, farsa, garasa, sword coming from Dhadhi Tola, when, they got indulged in assault upon the villagers. He identified 49 persons. Admittedly, the occurrence took place between 11.00 A.M. to 1.00 P.M. on 2.1.1993, whereas the fardbeyan was recorded at 8.00 P.M., when the F.I.R. was registered at 9.30 P.M. The informant had given 25 his statement, initially claiming to be an eye witness of the occurrence and subsequently claiming that he learnt about the occurrence from P.Ws. 1,2, 4 and 7. The defence has doubted about the bona fide of the claim of the informant, as was recorded in the fardbeyan. The informant himself admits in his evidence that the correct facts were not recorded in the fardbeyan by the Police. However, he did not lodge any protest against the interpolation in the fardbeyan by the police.
33. None of the P.Ws. in their evidences claimed the presence of the informant P.W.18 at the place of occurrence. The informant in his evidence has admitted that his father was murdered in the year 1982, by some of the accused persons of this case. He further admits, in paragraph 10 of his evidence, that from the accused side sons of Indradeo Dhadhi, Balmiki Dhadhi and Bijli Dhadhi and son-in-law of Darogi Dhadhi were murdered on 29.12.1992 i.e., four days prior to the present occurrence. It has also been claimed by P.W.18 that the mob set his house on fire, but no other witness, except the informant, suggest the same.
34. The animosity of the informant with the accused side gets surfaced from the fardbeyan which has been admitted by the majority of witnesses. The informant has himself doubted the accuracy of the fardbeyan. The non-lodging of F.I.R. by any family member of the 26 injured or the deceased in the background that when the houses of 100-125 persons were attacked in which five persons were killed and seven persons received injuries creates serious doubt on the correctness of the version of the informant. Furthermore, the Learned Trial Court has also doubted the identification of the accused persons by the informant, which is recorded in paragraph 16 of the judgment. In such circumstances, it is difficult for us to rely upon the evidence of P.W.18, in the interest of justice.
35. It appears that the Learned Trial Court convicted 18 persons on the basis of the evidence of the family members of the deceased and acquitted 34 accused persons on the ground of their non- identification.
36. So far as, the manner of occurrence is concerned, there are serious inconsistencies in the inter se evidences of the prosecution witnesses, particularly, so far as, the assault part is concerned. Moreover, the manner of occurrence has not been accurately deposed by the prosecution witnesses. P.W.1 has stated in his evidence that Mittan Mahto was shot at from point blank range but the same gets contradicted from the evidence of P.W.10, the Doctor who conducted the post mortem on the body of Mittan Mahto, where he opines that the gun shot injury has not been caused from 27 distance. P.W.13 has also stated that her husband Bideshi Mahto was shot at from point blank range, but the same also gets controverted by the evidence of P.W.15, the Doctor who conducted the post mortem, where it is opined that the injury has been caused from a distance of 12 feet. It has been stated by P.W.7 and P.W.13 that Bideshi Mahto was dragged from Aangan by Upendra Dhadhi before being shot, but no dragging injury has been found upon the body of Bideshi Mahto. P.W.13 claims that she is only a witness to the murder of her husband but she did not witness the murder of other victims which seems improbable in the light of the evidence of P.W.11, who is the brother of Sukhdeo Mahto and Bideshi Mahto, when he admitted that both were assaulted in the same courtyard (Aangan). In such circumstance, the contradiction and inconsistency in the manner of occurrence becomes apparent. More so, when P.W.7 claims that Bideshi Mahto was dragged and killed in the lane.
37. So far as the place of occurrence is concerned, five places of occurrence have been found by the Investigating officer, as recorded in paragraph 10 of the case diary. Since the case diary has been exhibited as Ext.7, we have occasion to look into the case diary. The first place of occurrence is the house of Chet Lal Mahto, at village Vadausi, consisting of one 28 room where Chet Lal Mahto was killed and his wife and son were assaulted. Second place of occurrence is house of deceased Nishchal Mahto in the same village which is double storeyed house, consisting of two rooms. One is on the ground and another on the first floor. Third place of occurrence is the house of Bideshi Mahto consisting of four rooms, but the Investigating Officer has found that the victim was taken to lane where he was assaulted. The fourth place of occurrence is the house of Sukhdeo Mahto who was also killed in gali adjacent to the room and fifth place of occurrence is house of Mittan Mahto.
38. P.W.1 has admitted, in paragraph 7 of his evidence, that the occurrence took place in the room of second floor of the house which was 5x5 hands (length x breadth). Though P.W.2 has not stated anything about this. P.W.3, in paragraph 4 of her evidence, has stated that the occurrence took place in the house. P.W.4, in paragraph 6 of his evidence, has stated that that he had shown the place to the police where occurrence took place, though he has not discussed specifically, about the place of occurrence. Similarly, P.W.5 has not stated anything about the place of occurrence. P.W.6, in paragraph 3 of her evidence, has stated that the occurrence took place in her single room of house. P.W.7 has admitted that his father Bideshi Mahto was killed in 29 the lane. P.W.11, in paragraph 5 of his evidence, has stated that the occurrence took place in the house, whereas P.W.12 has not stated anything about the place of occurrence. P.W.13 has stated that the occurrence took place inside the room, whereas P.W.17 in his evidence has stated that he received injuries inside the house.
39. Considering the evidences of the prosecution witnesses and the inspection of the places of occurrence, as recorded by the Investigating Officer, in paragraph 10 of the case diary, it appears that the prosecution has not made any serious effort to prove the place of occurrence and the Learned Trial Court has not put any question to the prosecution witnesses about the place of occurrence which it ought to have done, under the provision of Section 165 of the Indian Evidence Act. Significantly enough, the informant has stated in his evidence that his house was also set on fire and his family members were assaulted, but the Investigating Officer has not recorded anything in this regard while recording the description of place of occurrence in paragraph 10 of the case diary. Hence, these factors, not only cloud the prosecution evidence with regard to non-proving the place of occurrence, but it also clouds the bona fide of the evidence of the informant P.W.18.
40. Admittedly, the occurrence took place at five 30 different places and the P.Ws. have claimed to have seen the entire occurrence. To that extent, the Learned Trial Court has rightly not relied upon all the prosecution witnesses.
41. The evidence of P.W.2 has been relied only to the extent of proving of place of occurrence, but the same has not been relied upon to the extent that he had seen the entire occurrence from the southern window gap of the room because he was not present in the alleged room at the time of occurrence. The evidence of P.W.3 has rightly been found to be improved during trial, as she had not stated to the police about the sword blows given to her husband by Indradeo Dhadhi. The evidence of P.W.3 becomes doubtful in view of her admission in paragraph 4 of her evidence to the extent that the attackers dragged her from the room and pushed her aside. In such circumstances, it would have been difficult for her to see the actual assault. The evidence of P.W.3, further comes under suspicion, on the ground that she claimed to have been assaulted by the accused persons, but she did not get herself examined by the doctor. The Learned Trial Court, in paragraph 52 of the judgment, has recorded that so far her witnessing of the assault on her husband Sukhdeo Dhadhi is concerned, the same is unshaken and reliable, but in our view the same is contradictory to the findings recorded in 31 paragraph 50 of the judgment, where the Trial Court found the evidence of P.W.3 to be improved. The evidence of P.W.5 has been found to be developed during trial, as he has not stated the same version in his statement recorded under Section 161 of the Code of Criminal Procedure. The Trial Court in paragraph 58 of the judgment, has relied upon the evidence of P.W.5 only to the extent of assault on Sukhdeo Mahto and Bideshi Mahto, since he used to reside in one of the rooms of the same house. The evidence of P.W.7, who happens to be the son of deceased Bideshi Mahto was found to be improved and is consistent only to the extent that his father was dragged from Angan to the lane and he and his mother P.W.13 had seen the occurrence from the hole of the window. P.W.11 happens to be the brother of deceased Sukhdeo Mahto and Bideshi Mahto and his evidence appears to be doubtful, to the extent of the entry of about 100 persons in the house and their making assault. P.W.13, widow of Bideshi Mahto, in paragraph 4 of her evidence, admits that 5-6 persons entered into her house and she could only see the assault upon her husband. Her evidence is also inconsistent with the medical evidence, as she has stated that firing was made from very close range whereas the doctor has opined that the gunshot injury caused to Bideshi Mahto seems to have been fired from a 32 distance of 12 ft.
42. The evidence of so called eye witnesses on the basis of which the Learned Trial Court has convicted the appellants, becomes doubtful due to the delay in their examination by the police. P.W.16 has admitted that on 02.01.1993, he examined P.W.12 and found simple injury on his head, meaning thereby that he was in a condition to depose on the date of occurrence, but the Learned Trial Court has erred, in relying on the evidence of P.W.12, who gave his statement to the police under Section 161 of the Code of Criminal Procedure for the first time on 30.01.1993 i.e., after a delay of 22 days. P.W.1, in paragraph 5 of his evidence, has admitted that his statement was recorded by Police after three days of the occurrence and prior to that he had talked with the informant. P.W.3, who is widow of one of the deceased Sukhdeo Mahto, in paragraph 5 of her evidence, has admitted that she gave her statement before the police after 10-15 days of the occurrence. Similarly, P.Ws. 4 and 6 gave their statements on the next day of the occurrence and P.W.17 has also given his statement after one day of the occurrence. Hence, the statements of the relatives of the deceased persons, recorded before the Police were given after a considerable delay and in the background of the lodging of the first information report by P.W.18, an outsider, 33 the presence of such witnesses at the place of occurrence becomes doubtful.
43. From the evidence of the prosecution witnesses, it appears that the size of rooms were very small in which firstly entry of a mob as claimed by the prosecution witnesses, appears to be obviously doubtful and secondly the post mortem reports of deceased Bideshi Mahto and Nishchal Mahto, as discussed in paragraph 35 and 78, respectively, of the judgment, reflect that no charring or tattooing injuries were found, whereas the prosecution witnesses claimed that the firing was resorted to from very close range. It is a settled law that while appreciating variance between medical evidence and ocular evidence, oral evidence of eye witness has to be given priority as medical evidence is basically opinionative in nature but where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case. Therefore, it would be difficult to convict the accused on the basis of such evidence. In the present case, we find that the prosecution witnesses are not only inconsistent with the medical evidence but the inter-se inconsistencies of the ocular evidence are also writ large, which is most fundamental defect in the prosecution case and the inconsistencies have not reasonably been explained by the prosecution which is 34 sufficient not only to discredit the ocular evidence, but the entire prosecution case also.
44. Admittedly, the Investigating Officer has not been examined. It is settled law that non-examination of the Investigating Officer ipso facto does not discredit the prosecution version. It is needless to point out that the right of bringing on record, the contradictions in the statement of witnesses made before the Investigating Officer, is a very valuable right of the accused and by showing that, the witness has made improvements or has given evidence, which contradicts his earlier statement, the accused is able to satisfy the court that the witness is not a reliable witness. The non-examination of Investigating Officer is a serious infirmity in the prosecution case which results in prejudice to the accused. It is clear that the examination of the Investigating Officer is necessary in order to bring on record the contradictions in the evidence of the witnesses, hence it is a valuable right of the accused. Further it is clear that non-examination of the Investigating Officer is a serious infirmity in the prosecution case, in so far as it deprives the accused of the opportunity to show to the court, that the witnesses were not reliable witnesses, by proving contradictions in the earlier statement. In the present case, non-examination of the Investigating Officer has 35 definitely prejudiced the accused since the place of occurrence has not been proved nor the claim of the eye witnesses that they had seen the occurrence through hole or gap of the window of the room has been proved, due to non-examination of the Investigating Officer. Thus, in our opinion, non-examination of the Investigating Officer in the present case is a serious infirmity resulting in prejudice being caused to the accused. Hence, on this score also conviction of the accused persons also cannot be sustained.
45. The Learned Trial Court has disbelieved the eye witness account, so far as identification of the accused persons is concerned, because there is great inconsistency and contradiction in their claim of identification, while getting their statements recorded under Section 161 of the Code of Criminal Procedure vis- à-vis their depositions before the Court, as they made considerable improvement in their version in the Court, but the Learned Trial Court has convicted all the accused persons who have been identified by three or more witnesses. But, in our view, when there was a mob of more than 100 people and both sides were inimical from before, then the conviction of the accused persons on the basis of such inconsistent identification, appears not to be reasonable.
46. The appellants have been convicted with the 36 aid of Section 149 of the Indian Penal Code which reads as:
"Section 149: Every member of unlawful
assembly guilty of offence committed in
prosecution of common object - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
47. Perusal of the provision of Section 149 of the Indian Penal Code, reflects that the first clause contemplates the commission of an offence by any member of unlawful assembly. The second clause embraces within its fold, the commission of an act which may not necessarily be the common object of the assembly, nevertheless the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be for commission of one offence while, there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly.
48. So far as the question of applicability of 37 Section 149 is concerned, the said provision has its foundation of constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and they were actuated by that common object and that object is one of those set out in Section 141 of the Indian Penal Code. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149 of the Indian Penal Code.
49. In the present case, when a mob of more than 100 people entered in the house and thereafter occurrence took place at several places then, in such circumstance, it is difficult to say that all the appellants had any common object. Definitely the whole village was ransacked, but none except the family members of the injured or the deceased, came to depose in this case, resulting into absolute non-examination of the independent witnesses.
50. A person has, no doubt, a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond the reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to „proof‟ is an exercise 38 particular to each case. Referring to what degree of probability amounts to „proof‟, is an exercise of inter- dependence of evidence and the confirmation of one piece of evidence by another. The simple multiplication rule does not apply if the separate pieces of evidence are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence, directed to establish that the defendant did the prohibited act with the specified state of mind, are generally dependent. Doubt would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common-sense. It must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of 39 probability and the quantum of proof.
51. In the present case, non-lodging of F.I.R. by the family members of the injured or the deceased, non- examination of the independent witnesses, non- examination of the Investigating Officer leading to non-proving the place of occurrence and claim of eye witnesses to have seen the occurrence from different rooms/places, delay in lodging the F.I.R., examination of eye witnesses under Section 161 of the Code of Criminal Procedure after several days and inimical relationship between the parties, particularly, when few days prior to the occurrence some persons were killed, by the informant‟s side, create reasonable doubt over the entire prosecution case. Hence, considering the entire facts and circumstances of the case, as discussed above, we are of the view that the prosecution has failed to prove the case beyond the shadow of all reasonable doubts. Accordingly, the appellants deserve to be acquitted.
52. In the result, the judgments of conviction and orders of sentence passed in Sessions Case No. 202 of 1995/T.R.No.209 of 2002 by Presiding Officer, Additional Court (Fast Track), Munger and in Sessions Case No. 202A of 1995/T.R.No. 257 of 2005 by Additional Sessions Judge, Fast Track Court, Sheikhpura are set aside. Appellants of all the three appeals are acquitted. 40
Appellants Ramanand Dhari (Dhadhi) and Upendra Dhari (Dhadhi) of Cr.Appeal (DB) No. 294 of 2003, who are in custody are directed to be released forthwith, if not wanted in any other case and other appellants are discharged from the liability of their respective bail bonds.
53. The appeals are accordingly allowed.
( Shyam Kishore Sharma, J.) ( Dinesh Kumar Singh, J.) Patna High Court,Patna The 21st October, 2011 Tahir/-(AFR).